I am unable to agree with the,, conclusion reached by a majority of the court. The plaintiff brought this action to quiet its title as against the defendant to certain lands lying below the line of ordinary high tide of the bay of San. Francisco and the estuary of San. Antonio, and within the boundaries of the city of Oakland, as defined in the act incorporating said city, April 24, 1862. The cause was tried by the court, and judgment rendered in favor of the plaintiff that as to the lauds described in the complaint, with the exception of certain designated parcels described in the judgment, the title of the plaintiff is good and valid, and is vested in and held by it as a public corporation and governmental agency of the state of California for the common benefit of all the people of the state and the whole public; and that, as to certain parcels described in the judgment and which are found to have been filled in and raised above the level of ordinary natural high tide, the plaintiff bas lost and the defendant has acquired the title in fee thereto, and the defendant's title thereto is good and valid; and also that the plaintiff is not the owner of that part of the land described in the complaint which, lies southwardly from the present south trial *Page 204 was made by the defendant and denied, and from the judgment in favor of the plaintiff and the order denying a new trial the defendant has appealed.
The town of Oakland-was incorporated by an act of the legislature May 4, 1852 (Stats. 1852, p, 180), with the following boundaries: "On the northeast by a straight line at right angles with Main street, running from the bay of San Francisco on the north to the southerly line of the San Antonio creek or estuary, crossing Main street at a point three hundred and sixty rods northeasterly from `Oakland House,' on the corner of Main and First streets, as represented on Portois' map of `Contra Costa' on file in the office of the secretary of state; thence down the southerly line of said creek or slough to its mouth in the bay; . thence to ship channel; thence northerly and easterly by the line of ship channel to a point where the same bisects the said north-; eastern boundary line."
Section 3 of the act incorporating the town declares: "The board of trustees shall have power to make such by-laws and ordinances as they may deem proper and necessary; to regulate,: improve, sell, or otherwise dispose of the common property; to prevent and extinguish fires; to lay out, make, open, widen, regulate, and keep in repair all streets, roads, bridges, ferries, public! places, and grounds, wharves, docks, piers, slips, sewers, walls, and alleys, and to authorize the construction of the same, and,: with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship channel, are hereby granted and released to said town; provided that said lands shall be retained by said town as common property, or disposed of for the purposes afore said; to regulate and collect wharfage and dockage, etc."
May 18, 1852, the trustees of the town of Oakland adopted an ordinance entitled "An ordinance for the disposal of the waters front belonging to the town of Oakland, and to provide for the construction of wharves." The ordinance is in the following terms:
"Section 1. The exclusive right and privilege of constructing wharves, piers, and docks at any points within the corporate limits of the town of Oakland, with the right of collecting [ILLEGIBLE TEXT] and dockage at such rates as he may deem reasonable, is hereby *Page 205 granted and confirmed, unto Horace W. Carpentier, and Ms legal representatives, for the period of thirty-seven years; provided, that (he said grantee or his representatives shall, within six' months, provide a wharf at the foot of Main street at least twenty feet wide and extending toward deep water fifteen feet beyond the present wharf at the foot of said street.
"Sec. 2. With a view the more speedily to carry out the intentions and purposes of the act of the legislature passed May 4, 1852, entitled, `An act to incorporate the town of Oakland, and to provide for the construction of certain wharves thereat,' in which certain property is granted and released to the town of Oakland to facilitate the making of certain improvements, now, therefore, in consideration of the premises herein contained, and of a certain obligation made by said Horace W. Carpentier with the town of Oakland in which he undertakes to build for said town a public schoolhouse, the waterfront of said town, that is to say, all the Lands lying within the limits of the town of Oakland between high tide and ship channel, as described in said act, together with all the right, title, and interest of the town of Oakland therein, is hereby sold, granted, and released onto the said Horace W. Carpentier, and to his assigns or legal representatives, with all the improvements, rights, and interests thereunto belonging."
Section 3 provided for the execution of a conveyance of said lands to Carpentier by the president of the board of trustees. By virtue of this ordinance the president of the board of trustees, A. Marier, executed to Carpentier a conveyance of the land May 31, 1852. The interest thus conveyed to Carpentier became vested in the defendant herein prior to the commencement of this action, and the lands so conveyed to him are included within the description contained in the complaint herein.
The plaintiff was originally incorporated by an act of the legislature passed May 25, 1854 (State. 1854, p. 187), and succeeded to all the rights and claims of the town of Oakland in said Lands; and was reincorporated in 1862 (Stats. 1862, p. 337), and was then empowered to maintain suits to recover any right or interest to property which may have accrued to the town and city of Oakland. *Page 206
The court below held that the foregoing ordinance, and the deed of Marier purporting to sell and dispose of the lands therein described were null and void, and that said board of trustees had no right or power to pass said ordinance, and said Marier had no right or power to execute said instrument in pursuance thereof. The correctness of this finding underlies the decision" of the court and the rights of the parties hereto, and has properly received the main consideration in. the argument of counsel and by the court in determining the case.
The questions thus presented for determination are the nature or character of the tenure by which lie state holds the title to the tide lands within its borders, and the effect of the act granting these lands to the town of Oakland, and also the interest in the land which was taken by Carpentier by virtue of the ordinance, as well as the effect of subsequent legislative acts and judicial proceedings.
1. The nature of the state's title to tide lands and lands covered by navigable waters, as well as the effect of a conveyance of these lands by a grant, either directly from the. legislature or through legislative authority, has been the subject of frequent consideration by the courts, and many expressions are found in opinions given in deciding the cases in which the title is characterized as that of an absolute owner in fee. The cases in which the question has been considered have in nearly all instances, however, been those in which the right to the disputed lands was controverted by individuals claiming the same as against each other by virtue of conflicting grants or claims derived under the state, or when the rights of a grantee of the state were opposed to one claiming by prescription, or by virtue of a riparian claim, or to a claim alleged to be paramount or anterior to that of the state, and have arisen only where limited areas were involved. In these cases courts in determining the title of the grantee under the state have characterized the original title of; the state thus conveyed to him as that of a sovereign with the; full power of disposition; but, as was said by the supreme court of the United States in discussing this question in the Chicago case hereinafter cited: "General language sometimes found in opinions of the courts expressive of absolute ownership and control *Page 207 by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of like particular cases." InWeber v. Harbor Commrs., 18 Wall. 57, the facts pertinent to the lands then in question did not require an investigation or determination of the nature of the state's title, but the court in its opinion declared that the state had "absolute property in and dominion and sovereignty over all soils under the tide waters within her limits, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations, or among the several states.'"' Similar expressions may he found in opinions in other cases, but in none of these cases prior to that of Illinois Cent. R.R. Go. v.Illinois, 145 U.S. 387, was the question directly presented as between the rights of the grantee and the rights of the public remaining in the granted lands, or the extent to which the stale bad the power to grant such lands, or whether there were any limitations upon the exercise of this power. In that case the state of Illinois had attempted to alienate certain, lands beneath the waters of Lake Michigan, which included a large portion of the waterfront of Chicago, and the supreme court of the United States was for the first time called upon to consider the extent to which the right of the state to grant lands thus held for public use could be exercised without impairing the Tights of those for whose benefit the trust existed, and in so doing pointed out more clearly than had been previously done the nature of this tenure, and that there are limitations upon the right of the state to dispose of such lands. In its opinion in that case it modified its previous declaration in Weber v. Harbor commrs. supra, of the state's power of disposition of such lands, by inserting the qualification "when that can be done without substantial impairment of the interest of the public in the waters."
The expressions found in many of the opinions, and repeated in the foregoing quotation from Weber v. Harbor Commrs.,supra, that the state holds the dominion and sovereignty over these lands, as well as the frequent statement that the state is sovereign, is apt to be misleading unless the proper significance of the *Page 208 term "sovereign." when thus used is also considered. To the extent that the state is not subject to any superior control or authority it is sovereign, but it does not follow that it has absolute authority, or that its power of disposition over these lands is. without limitation. Under the political system of this country' the actual sovereign is the people, and all power of government and ownership of public property is vested in them, and is to' be exercised solely for their benefit. The state is but the organized form of government which the people have established for their; protection, both as individuals and as a body politic, with powers defined in a written constitution, and is sovereign only to the ex-; tent with which the people have invested it with their sovereignty. Being only a political entity, the powers and sovereignty. thus conferred by the people must be exercised by individuals and the exercise of the power under consideration has been instructed to the legislature. The legislature is, however, only the agent and representative of the people, and holds the power and sovereignty conferred upon it in trust that they shall be exercised in the interest and for the benefit of its constituent, and subordinate to the trust under which they are held. As in the case of any other agent or trustee, an act done by it for the pure pose and with the necessary result of injuring its principal, or of destroying the subject matter of the trust, even though done under the forms of the authority conferred .upon it, will be held in-p effective.
Whatever power or sovereignty has been conferred upon the state to be exercised only for the benefit and in the interest of the entire people, cannot be abdicated or surrendered to individuals, or exercised in favor of some to the detriment or disadvantage of others. The lands which the state holds in trust for the entire public are held by it in this limited sovereignty, and under the same trust as is the police power, or the power of taxation, or the right of eminent domain, and for the same reason are incapable of being placed beyond its control. Although the state is vested with the dominion and sovereign control of these lands it does not follow that its power of disposition is the same as that of an individual over lands of which he holds the absolute fee, or that its tenure of the lands is identical with that of an individual owner. These lands are not held for the purpose of *Page 209 sale, or for producing revenue or income therefrom, but are universally declared to be held for the use and benefit of the public, and the power of alienation, as we as the title of the state there-[ILLEGIBLE TEXT], is limited by this trust under which, they axe held. In Illinois Cent. R. R. Co. v. Illinois,supra, it was said that the title of the state to these lands "is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. . . . . The trust devolving upon the state the public, and which can only be discharged by the management and control of property in which the public has an interact, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the. public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. . . . . The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instances of parcels mentioned for the improvement of the navigation and use of the waters', or when parcels can be disposed of without impairment of the public interest in what remains, than can abdicate its police powers in the administration of government and the preservation of the peace. In the administration government, the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to revoke those powers, and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable water, they cannot be placed entirely beyond the direction and control of the state."
The question of the unlimited power of the legislature to grant these lands into private ownership may be fairly presented for [ILLEGIBLE TEXT] *Page 210 consideration by assuming that that body could be induced to make a grant to an. individual or to a corporation of all the tide lands and lands covered by navigable waters belonging to the state. Irrespective of the constitutional limitation in this state against gifts of public property, it would not be contended for a moment that such a grant could be sustained. "A grant of all the lands under the navigable waters of a state has never been .ad judged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation." (Illinois Cent. R. R. Co. v. Illinois supra.) It was said by the supreme court of New Jersey in Arnold v.Mundy, 6 N. J. L. 1, 10 Am. Dec. 356: "The sovereign power itself cannot, consistently with the principles of the law of nature and the constitution of a well-ordered society, make direct and absolute grant of the waters of the state divesting al the citizens of their common right. It would be a grievance which never could be long borne by a free people." A grant to an individual of all of the land covered by the Sacramento river or lying within the ebb and flow of the tide thereon, would manifestly be beyond the power of the legislature; but a grant of the entire waterfront of a municipality, by which all ingress and egress between the upland and the navigable waters bordering thereon is cut off or placed at the arbitrary will of an individual differs only in degree from a grant of the bed of the Sacramento river or of the waterfront of the entire state. It was shown testimony in the present case that the distance from the line of ordinary high tide to ship channel, measured along the north easterly boundary of the town of Oakland, as defined in the act of 1862, is upward of five miles, and that, by reason of the [ILLEGIBLE TEXT] verging lines of its north and south boundaries, the tract of land between the line of high tide and ship channel is in the shape of a fan, ridening as it extends into the bay, so that the frontage at the line of ship channel is about seven miles. The court found as one of the facts herein: "The length of the shore line of the tract of land described in the complaint, measured on the line of ordinary natural high tide, is thirteen and fifty-six hundred the miles; the length of its frontage upon the channel lines is [ILLEGIBLE TEXT] `teen miles, and the area of said tract, of land is about seven thousand eight hundred and seventy acres." *Page 211
It neither needs nor admits of argument or evidence to make at manifest that the state cannot mike a grant of this extent without "a substantial impairment of the interest of the public in the waters" covered by the grant, as well as those bordering thereon. That a waterfront may be available to the public it must be capable of approach from both sides from the water to the land, as well as from the land to the water; but by the terms of this grant there is drawn in front of the entire upland a cordon of land miles in width, making ingress and egress between the land and the water impossible, except at the will of the grantee. If the state had the power to authorize this grant, it could authorize similar grants by every municipality, and could organize municipalities by which the entre water frontage of the state would be occupied. If the state can irrevocably part with its dominion over the entire waterfront of Oakland, it can do BO with the entire waterfront of any and every municipality within its borders, and it is only necessary to conceive of similar grants to Alameda, Berkeley, San Pablo, and other towns bordering upon the bay and elsewhere, in order to see the state deprived of its entire sovereignty and control over these lands, as fully as though they had all been granted by a single legislative act. No instance has been cited of a grant approximating in extent the one under consideration, and we do not hesitate to say that no count has ever sustained the validity of a grant of this extent.
The principles thus declared do not, however, prevent the state from conveying by its grant an absolute fee to parcels of these lands, and the cases in which such grants have been upheld Illustrate the extent to which the grants may be made, as well as their limitations. As one of the main purposes of the trust hinder which they are held is that the public may enjoy them for the benefits of commerce and navigation to be derived therefrom, the state, as the organized representative of the public, may, in its administration of that trust, find it to be for the advantage of the public, and in promotion of the purposes of the trust, as well as to secure the benefits of navigation and commerce, to construct docks, wharves, piers, or basins upon the lands covered by these waters, and for that purpose may authorize their construction by others, and may part with the title to the and upon which they are constructed. It was said in the Chicago case: *Page 212
"The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purposes the state may grant parcels of the submerged lands, and, so Long as their disposition is made for such purpose, no valid' objections can be made be the grants." And in the same case the court further said that the grants that have been considered and sustained in the adjudged cases as a valid exercise of legislative power have been "grants of parcels of lands tinder navigable waters, that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining"; and that "it is only by observing the distinction between a grant of such; `parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the ad judged cases can be reconciled." The grant of a parcel of land which may serve as the foundation for a wharf or a pier, and which is actually used for such purpose, would be within the direct purposes of the trust for which the lands are head by the state; and it may also be conceded that if lands covered with water are granted by the state, and are afterward reclaimed and occupied for purposes not connected with commerce and [ILLEGIBLE TEXT], but in such a way as not to impair the rights of the public in the waters still remaining, leaving them open to free access from the upland, the state would not be at liberty to recall the grant. This is, however, an entirely different proposition from a grant of the entire waterfront of a city or township, either as a donation or upon the consideration of constructing a single wharf thereon, or the construction of some public improvement disconnected with the use of the lands.
The state cannot part with the control of these lands for other public uses than those for which they are held on than such as will promote the interests of the public in navigation and commerce, and is precluded from alienating them for other purposes. The same consideration's which prevent it from making a donation of them to an individual *Page 213 for his own private purposes preclude it from [ILLEGIBLE TEXT] them for other public purposes than those for which they are held in trust. "The trust for which they are held is governmental, and cannot be alienated except in those instances mentioned of parcels used in the improvement of the interest thus held, or when, parcels can be disposed of without detriment to the public interest in the lands and waters remaining." (Illinois Cent. R. R. Co. v.Illinois, supra.) The legislature can no more extinguish or destroy the right of the public in these lands by exchanging them for lands or property to be used for other public purposes than it can by alienating them in [ILLEGIBLE TEXT] by a legislative grant. Whether the state may appropriate the moneys it shall receive for such portions as it may lawfully sell to other public purposes need not be considered, nor is it necessary to consider the extent of the parcels which it may dispose of, or whether the judgment of the legislature as to the extent of such disposition is final. A grant by the legislature is the act of a co-ordinate branch of the government, and, so long as its right to make the grant is an open question, the judiciary are not justified in refusing to give it effect. (Madera Irrigation Bonds,92 Cal. 310; 27 Am. St. Rep. 106.) If a contest upon this question is presented to the courts, they would be authorized to determine it to the same extent as they are authorized to determine "whether the purpose for which taxation or the right of eminent domain is authorized is a public propose, OR whether the use for which private property is taken in any particular instance is a public use. If the exercise of this power in any given case lies upon the border line, or is equally susceptible of a construction in favor of as against its validity, courts will respect the determination of that branch of the government and refuse to question its exercise; but if it is apparent from the terms of the grant itself that it is in excess of the power of the legislature, or is in violation of the trust upon which the lands are held by the state, courts will no more hesitate to pronounce the grant invalid than to declare any other act of the legislature without effect that has been passed without authority. If the grant be of an entire harbor, or if it purports to grant in a single tract all the land forming the water approaches to a basin or city, there can be no question of its invalidity. *Page 214
The fact that at the time of the passage of the act and the grant thereunder Oakland had but a fraction of the population which it now possesses, or that the value of the Land granted was small, is immaterial and a false quantity in determining the power of the legislature. The trust under which the Lands. were held was not limited to that date, but extended throughout the existence of the state for all time, and the lands were held for future generations as well as for those then capable of enjoying them. In the Chicago case, the grant was of only a portion of the lake front and extending nearly a mile out into the lake. At the time when it was made the population of the city was not one fourth what it was when the decision thereon was rendered and when the validity of the grant came before the courts for determination the city had extended for miles further south, but it was not contended that these facts in any respect affected the validity of the grant or the power of the legislature at the time-it was made.
Neither is. the right of the defendant in these lands increased by the fact that other tracts of land of great extent have been conveyed by the state. The facts connected with those grants are not before us, and we would not be justified in expressing an opinion upon their validity. The grant to San Francisco, by the act of March 26, 1851 (State. 1851, p. 307), is peculiarly within the conceded right of the state to dispose of these lands in parcels for the purpose of promoting the interests of commerce and navigation. The land which was granted by that act was that which was situate within certain boundaries, "according" to the survey of the city of San Francisco, and the map or plat of the same now on record in the office of the recorder of the county of San Francisco." The land within these boundaries had been laid out into lots and blocks, with streets intersecting the blocks, and also along the' waterfront and extending there from, to the upland, and in the act itself these lots were designate as "the San Francisco beach and water lots." The map had been drawn in accordance with a survey made in 1847 by virtue of the directions of General Kearny, and the beach and water lots designated thereon, each with an area of one-third of a fifty [ILLEGIBLE TEXT] lot, and seven hundred and seventy-two in number, had been sold at public auction under the direction of the [ILLEGIBLE TEXT] *Page 215 prior to the incorporation of the city, and at the passage of the act were claimed in private ownership, and the grant to the city was for the purpose of releasing to these grantees the right of the state therein, and of confirming their claim thereto. (See Eldridgt v. Cowell, 4 Cal. 80.) The grant to the city was of the use and occupation of the land for a limited period, with the right to dispose of the same, and providing that the title thus conferred should inure to the benefit of her previous grantees.
Section 4 of the same act provided that the boundary line described in the first section of the act should he and remain a permanent waterfront of said city, and that the authorities of the city should keep the space beyond said line, to the distance of five hundred yards therefrom, clear and free from all obstructions whatsoever; and, as if to emphasize the purpose of the state not to part with its control over the waters, it was declared in section 6: "Nothing in this act shall be construed as a surrender by the state of its right to regulate the construction of wharves or other improvements so that they shall not interfere with the shipping and commercial interests of the bay and harbor of San Francisco." At the same session of the Legislature another act was passed (Stats. 1851, p. 311), by which the city of San Francisco was authorized "to construct wharves at the ends of all streets commencing at the bay of San Francisco, the wharves to be made by the extension of said streets into the bay in their present direction, not exceeding two hundred yards beyond the present outside line of the beach and water tots, and to prescribe the rates of wharfage that shall be collected on said wharves when constructed. The space between said wharves when they are extended, which is situated outside of the outer line of beach and water lot property, as defined by the Legislature, shall remain free from obstructions and be used as public slips for the accommodation and benefit of the general commerce of the city and state." When the state afterward authorized the disposition of its reversion in the property thus granted to the city, it directed that the property be sold "by lots as the same are now laid out on the official map of said city, and, where none such are so laid out, then in such lots as may be Laid out by the board in conformity with the said official map." (Stats. 1853, p. 219.) *Page 216
The state does not violate like trust under which it holds the title to these lands by designating a waterfront at a line within a reasonable distance from the line of high tide, and at the same time providing for the construction of wharves and piers at that line, since this, is in the direct interests of commerce and navigation and is also in execution of said trust. Whether such water; front should be at the line of high or low tide, or at a point below that, would depend upon the conformation of the shore and the distance between it and deep water. Upon the designation of the line of such waterfront, and providing means of access thereto from the upland sufficient to meet the present and prospective necessities of commerce, the lands within this line not so reserved would cease to be subject to the trust upon which they were previously held, and the state could either reclaim, them, itself, or it could dispose of them as freely as it can of any other lands held by it merely in its proprietary right The principle, however, under which such action by the state is upheld, is entirely inconsistent with a grant by it of the entire space between the line of high tide and ship channel in which no line is designated. for a waterfront, or provision made for access to the waters from the upland, or for the construction of wharves at any point within the granted lands, and in which no obligation is imposed upon the grantee to construct any wharves therein or to make any provision for the necessities of commerce and navigation.
It follows, therefore, that by the act of' 1852 the legislature did not confer upon the town of Oakland the title in fee to the lands within its limits then lying below the line of high, tide, or the right to dispose of the same as an entirety or by a single grant, and that the ordinance passed by the town granting the v said lands to Carpentier, as well as the conveyance executed to him by Marier in pursuance thereof, were invalid to vest in Carpentier any title to said lands or to any part thereof. The legislature could not give to the town of Oakland any greater power to alienate or dispose of these lands than was possessed by itself, and the grant by the town to Carpentier must be regarded as taken by him with full notice of the limitations upon the power of the legislature, and-with the same effect as if it had been made directly to him by the legislature itself in the terms of the act. *Page 217
2. The defendant, in a separate answer to the complaint, pleaded that by reason of a judgment rendered in a former action between its predecessor and the plaintiff, the plaintiff is estopped from maintaining the present action. The facts upon which the alleged estoppel rests axe as follows: In 1857 the plaintiff herein commenced an action against Carpentier for the purpose of having the aforesaid ordinance and grant adjudged to be null and void, alleging in its complaint that by the act of 1854 it had succeeded to the rights of the town of Oakland; that by virtue of the act of 1852, incorporating the town of Oakland, a grant was made to the town of the lands described in that act; that by the second section of. the act the corporate powers of the town were to be exercised by a board of five trustees; that, although, five trustees were elected, only four qualified and acted; that at a meeting of these four a resolution was passed by which they pretended to convey to Carpentier "the exclusive right and privilege of constructing wharves, piers, and docks at any point within the corporate limits of the town of Oakland, with the right of collecting wharfage and dockage as he might deem reasonable, upon certain conditions in said ordinance particularly set forth"; that "by the same pretended ordinance, and for the considerations therein set forth, a pretended grant was made to the said Carpentier of all the improvements, rights, and interests belonging to the said town, and to the lands lying within the limits of the town of Oakland"; and that thereafter the president of the board of trustees made a conveyance in `pursuance of said ordinance, which purported to convey to Carpentier the exclusive right and privilege of constructing wharves and collecting wharfage for the period of thirty-seven, years," together with all the right, title, and interest of the town of Oakland in and to the waterfront of said town, and situated between high tide and ship channel, as granted to said town and as described in said last-mentioned act of the fourth day of May, 1853, upon the conditions and for the considerations set out in said deed." The plaintiff in said action therefore charged that "the said corporation was not, at the time of the passage of the said ordinances, lawfully constituted under the provisions of the said act, and that all the actings and doings purporting to be the acts of said corporation, including the said pretended *Page 218 ordinances and deed made la pursuance thereof, are absolutely null and void, and confer no rights on said pretended grantee"; "that the said pretended deed of the twenty-seventh day of May, 1852, to said corporation is void and of no effect, because it is hot made under the seal of the said corporation"; that" "the exclusive right to collect wharfage and dockage was a franchise conferred upon said corporation by the legislature for the use and benefit of all the inhabitants of said' town, and as such it had no power or authority under the act of incorporation to alienate or transfer the same." It was further alleged that Carpentier had acted fraudulently in procuring the said pretended grant, and in procuring other grants and ordinances, and the various particulars in which the fraud was charged were "set forth in said complaint, and the plaintiff therefore charged "that the above-mentioned ordinances and deeds constitute a cloud on the title of the plaintiff, and embarrasses the city in the exercise of the legitimate functions appertaining thereto"; and prayed "that the said pretended ordinances and deeds may be declared null and void and of no effect, and that the defendant be directed to deliver up to the plaintiff the property pretended to be conveyed by said deeds and ordinances." To this complaint the defendants answered, denying the averments in the complaint with reference to the incorporation of the town of Oakland, and denying that the actings and doings purporting to be the acts of said corporation, or any of them, were null and void, or conferred, no rights upon Carpentier, or that the deed from the corporation to him was void or of no effect, or that the exclusive tight to construct wharves, with the exclusive right to collect wharfage was a franchise which the corporation had no power to alienate; and transfer; and also denied "that the said ordinances and deeds in the said complaint mentioned, or any of them, constitute a cloud on the title of the plaintiff, or embarrasses the city in the exercise of the legitimate functions appertaining thereto or in any other manner." The defendant also denied the several allegations of fraud charged in the complaint, and, in addition to these denials, affirmatively alleged the incorporation of the town, the election of its trustees, their organization and adoption of the ordinance granting the land to Carpentier, setting forth the ordinance at length, the conveyance thereof to him *Page 219 the president of the board, the acceptance of the grant by him, and the agreement on his part to perform the conditions therein imposed, and his subsequent performance thereof, and that by reason, thereof he had become vested with the title to the lands in question, and that the plaintiff was estopped from maintaining its said action.
The cause was tried by the court and judgment rendered in favor of the plaintiff. From this judgment an appeal was taken to the supreme court, and the judgment of the trial court was reversed by that court, and the district court was directed to dismiss the suit (Oakland v. Carpsntier, 21 Cal. 642.) In its opinion rendered upon deciding the appeal, the supreme court, after reciting the facts in the case, said: "The suit is, of course, for equitable relief, and the grounds alleged for the interposition of equity are that the grant or conveyance was obtained by fraud on the part of Carpentier, and was made without authority on the part of the trustees, and that it constitutes a cloud upon the title of the city, and embarrasses her in the exercise of her Legitimate functions"; and, after stating that the charges of fraud were not entitled to consideration by reason of their vague and indefinite character, as well as by the fact that they were fully denied and wholly unsustained by the proofs, the court further said: "Stripped of the charges of fraud, the whole claim for equitable relief falls
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