I dissent. The statute declared valid by the majority opinion throws open the entire sea coast of California (with the exception of limited areas adjacent to municipalities) for exploration and possession for the development of oil and gas by private parties. This means that from Mexico to the Oregon line a strip of tide and submerged land three miles in width and nearly 1200 miles in length, including the tide and submerged lands along the harbors, bays, estuaries, coves, inlets and navigable streams and surrounding the coastal islands, is made available for one of the purposes contemplated by the statute. In my opinion the act, in its operation as to all of said lands, is inconsistent with the trust on which the state holds title to the same for the benefit of all of the people of the state for navigation and fishery. The effect of the main opinion is to compel the surveyor-general to issue a prospecting permit and subsequent lease to any qualified person, association or corporation upon compliance with the formalities prescribed in the act. The 1923 statute (Stats. 1923, pp. 593-595) sought ineffectually to vest in the surveyor-general a discretion to refuse a permit when in his judgment the prospecting or development work would cause injury or damage to property near the land applied for, and littoral owners are, by the judgment in this case, relegated to the trial courts to adjust their rights in the first instance. This latter circumstance may be of minor importance, but it indicates the mischief engendered by the act in provoking litigation. My objection to the statute is placed on broader grounds.
It is the firmly established law of this state that the title to lands lying between the lines of ordinary high and low tide, as well as the lands within any bay and harbor and covered by its waters, is in the state, in trust, however, for the public purposes of navigation and fishery. In the early case of Ward v. Mulford, 32 Cal. 365, this court said at page 372: "The land which the state holds by virtue of her sovereignty, as is well understood, is such as is covered and uncovered by the flow and ebb of the neap of ordinary tides. Such land is held by the state in trust for the benefit of the people. The right of the state is subservient to the public rights of navigation and fishery and theoretically, at least, the *Page 196 state can make no disposition of them prejudicial to the right of the public to use them for the purposes of navigation and fishery, and whatever disposition she does make of them her grantee takes them upon the same terms upon which she holds them, and of course subject to the public rights above mentioned." This doctrine was again declared and emphasized in the case ofPeople v. California Fish Co., 166 Cal. 576 [138 P. 79], and the series of cases in the same volume dealing with the subject. In People v. California Fish Co., supra, at page 584, this court quoted with approval from Illinois Cent. Ry.Co. v. Illinois, 146 U.S. 452 [36 L.Ed. 1018, 13 Sup. Ct. Rep. 118, see, also, Rose's U.S. Notes], defining the title held by the state in trust, as follows: "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 the liberty of fishing therein freed from the obstruction or interference of private parties. . . . 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 law of this state, as to the nature of the state's title in and to tide-lands, is so definitely settled as to render unnecessary a review or citation of cases from other jurisdictions.
I am in accord with the contentions of the respondent that the proposed use of such lands is not a public use and is inconsistent with the trust under which the title to the lands is held by the state. The petitioners contend that the right to determine whether the particular use is compatible with the public right is a matter for legislative determination. I deny the right of the legislature finally to determine that all of the tide and submerged lands along the Pacific Coast of California may be used for any private purpose requiring the building of structures which would impede the free access of water craft, large or small, to the shore line or which would prevent the free use of the shores of the sea and its adjacent waters for the purpose of fishery. I am convinced that the statute in question is in excess of the powers of legislative control over such trust property. There are many authorities to the effect that in the proper exercise of legislative control limited areas of tide and *Page 197 submerged lands may be set apart from the public domain in aid and promotion of the trust purposes, and even for private purposes, upon proper segregation. If it could reasonably be said that the legislature has granted to these particular petitioners the permits applied for, it might follow that the court would be bound by the implied legislative finding that the proposed use of the lands in question would not be inconsistent with the public trust. But I am unable to accede to the claim that the court is bound by an alleged implied finding of the legislature to the effect that, with no substantial impairment of the public right, all of the tide and submerged lands of the state may be used for this private purpose, which of necessity involves the building and maintenance of structures and obstructions on such lands. It is not a sufficient answer to say that the oil and gas bearing tide and submerged lands of the state are confined to very limited areas. Future development may disclose otherwise. And if all of this trust property may be set apart for one private purpose, why may it not for another? I am not impressed with the argument that if the applicants for the permits and leases do not extract the oil and gas from the state's tide and submerged lands the littoral owners may do so and the state's treasury thus be deprived of the modest royalty of five per cent. In my opinion the state should not engage in a wholesale surrender of this particularly protected public right for any such consideration or for any reason not involving a public emergency.
The tide and submerged lands of the state constitute a great public highway, whose use for navigation and fishery is analogous to that of the ordinary vehicular highway for public travel. The use of the latter is open to all well-known guaranties against obstruction for private purposes. The former should be equally available to all for navigation and fishery, excepting, of course, that where not useful for the public purpose it may be altered to meet changing conditions and in a way not inconsistent with the trust. As to the right of fishery, no one may successfully maintain that the tidal waters will not be contaminated by the proposed operations and the fish be driven to deeper channels. The statute does not contemplate that the waters of the ocean will not be so despoiled. The act only requires that the permittees and lessees "use all reasonable precautions to prevent *Page 198 waste of oil or gas developed in the land." It is argued that the necessary structures to be built upon the trust property will not prevent reasonable access to the leased lands by those members of the public who may desire to navigate the waters over the leased lands or to fish therein. If this be true, it is so from a theoretical standpoint only. From a practical standpoint I believe that the occupation of lands under such a lease and operations thereunder would effect a substantial deprivation of the public right of navigation and fishery, just as an obstruction in a public highway would impede public travel.
It is claimed that, because of the expanse of the state's coast line, the applications for permits involved herein are of relative unimportance. The answer is that the main opinion establishes the rule as to all of the tide and submerged lands held by the state. My objection goes to what may be done under the statute and to relegating the entire question to one of legislative policy.
A rehearing was denied on January 28, 1929, and the following opinion then rendered thereon:
THE COURT.
The petitions for rehearings herein are denied. The record herein, as presented by the pleadings and by the briefs of the parties to these several proceedings, shows that every question of law involved in each and all thereof was finally submitted to this court for decision and has been properly decided; that as to any issues of fact which have arisen in the course thereof, the determination of these depended upon matters of record in the offices of state officers, or were matters of which the court could take judicial knowledge without the necessity of a reference and that the decision in all of these matters was embraced in the order of submission herein and has been properly and fully determined by the decision heretofore filed herein. We are satisfied that the decision on the question of littoral rights, wherein such rights were made an issue in the respective petitions, conforms to and follows the decisions of the United States supreme court and our own court on said question. This question was argued and given full consideration in our opinion. *Page 199