I concur in the judgment, but for reasons quite distinct from those announced in the prevailing opinion. The effort of appellants in this case was directed to establishing that they had acquired some sort of a prescriptive title to the lands in question, — a fee growing out of the jus privatum which is subject to the public control of the state under the juspublicum. It is learnedly argued, with an elaborate review of the authorities, that "this proposition has not heretofore had the approval of this court," and pains are taken to show that certain judgments of this court have been given which could not have been given if the right to acquire such a title existed. All this argument is superfluous *Page 536 in view of the fact that no court or jurisconsult ever conceived of the possibility of the existence of such a split fee until it was declared, or rather, I should say, was created by this court in People v. California Fish Co., 166 Cal. 576, [138 P. 79], and People v. Southern Pacific R.R. Co., 166 Cal. 614 et seq., [138 P. 94]. In those cases the people of California were for the first time advised that this state, in offering for sale the fee of certain of its tide lands, without the slightest reservation of any rights in the act authorizing the sale, and in making grants and patents of these lands, without the suggestion of a reservation or limitation upon the title, and in taking its citizens' money under these circumstances was practicing the art of a Jeremy Diddler by hoodwinking its citizens into the belief that they were acquiring a fee simple to lands, whereas in fact they were but acquiring a nondescript jus privatum which entitled them to use the lands until the state should retake them. The reason why no one of our early cases gives consideration to the proposition of this divided fee — the reason why no lawyer ever advanced it for the consideration of this court, is that it first came into existence in the law as the creation of this court in 1913. Indeed it is said in the cases above referred to that in our earlier decisions "the double right of the state, private and public, does not seem to have been suggested or considered." What more natural, since the creation by construction put on our tide land statute of this novel character of estate, than that litigants should come to this court for further definition of it and further light as to the method of its acquisition. Therefore, it seems to me a wholly unsatisfying answer to such litigants to say that because a title by prescription embraces the whole fee, and that because our earlier decisions do not recognize that one may acquire a partial fee subject to a governmental right, their appeals are groundless. If there be such a divided fee as that which this court has said exists, why should not the right to acquire it be open to every one as is their right to acquire any other property by the same means? This is but the first of many questions that are certain to arise under this newly-created fictional fee. The true and simple answer, under long and well-established principles of law, is that there is no such divided fee. That title to public land may not be acquired by prescription or adverse possession does not call for any refined and meticulous *Page 537 reasoning, made necessary only by our new creation, but may still rest safely upon the old familiar principles that one who by occupancy, however open, tries to gain an exclusive right in such lands, is maintaining a continuous public nuisance in the first place, and, in the second place, regardless of the length of time of such occupancy, he will not be protected against the state for his invasion of its rights, for the reason that under such circumstances the state is never charged with notice that its rights are invaded. Wherefore, and still applying these old and familiar principles, if the asserted occupancy of the appellants was constructive merely, manifestly no prescriptive title could be acquired. If the occupancy was actual and visible, then if not under license or grant of the state, it was a mere purpresture, subject to abatement at any time at the will of the state. For these reasons I concur in the judgment.
Melvin, J., and Lorigan, J., concurred.