I concur in the judgment of reversal, and in the reasons fully set forth in the opinion of Justice Shaw in L.A. No. 3060, ante, p. 576, upon which the present judgment is based. It would be sufficient, I think, in remanding the cause for further proceedings to direct the superior court to quiet the title of the state to so much of the land described in the Banning patent as lies within the two-mile limit of the town of Wilmington as originally incorporated, and to quiet the title of the successors of Banning to the remaining portion of the land so described against all claims of the state except the rights reserved to the public by section 2 of article XV of the constitution. The case presented by the record does not, in my opinion, call for any elaborate discussion, or exact definition of the full extent of those rights, but since my associates have gone so fully into those questions I take occasion to state briefly my own views as to the effect of a valid conveyance of a portion of our tide lands, and to define, as well as I can, what, in my opinion, is the interest acquired by the patentee and what the nature and extent of the rights reserved to the state.
To this end it will not be unprofitable to give some preliminary consideration to the origin and nature of the state's title to its tide lands and lands underlying its navigable waters which, for brevity, may be called its submerged lands.
When the thirteen federated colonies achieved their independence of the British crown, each acquired the absolute ownership and dominion of the tide lands and of all other lands covered by navigable waters within their respective boundaries, with the possible exception of parcels of such lands as may have been included in valid grants antedating *Page 618 the revolution. Over the lands so acquired each of those independent colonies or sovereign states possessed the same absolute power of management and disposition as king, lords and commons combined had before possessed. When, afterward, they formed a union by the adoption of our federal constitution they surrendered to the national government a paramount right of regulation and management of all their navigable waters necessary or convenient for the purposes of foreign or interstate commerce, but retaining to themselves all rights not incompatible with the right so surrendered. When, at a still later date, the United States acquired by treaties of cession extensive territories previously under the dominion of foreign states, the tide lands and lands covered by navigable waters within such territories became subject to the control and disposition of Congress except so far as the titles of prior grantees were protected by stipulations contained in the treaties of cession.
Anticipating the future conversion of these acquired territories into states, and with a view to their admission into the union upon terms of perfect equality with its original members, the government seems to have adopted the policy of reserving from sale for the future benefit of those embryo states the lands within their boundaries lying below the line of high tide. All that has been here said is illustrated by the history of California, and it results that, in fact as in theory, upon her admission into the union upon terms of equality with the states that formed the union she was endowed with the same powers over her navigable waters and tide lands that they possessed after their concession to the general government of a superior power of regulation for a particular purpose. The people of California therefore, subject to this sole qualification, have the power to manage and dispose of their tide and submerged lands in such manner as they may deem most advantageous. The alienation of such lands is a legislative act, and what the people may do the legislature may do except so far as its general power of legislation is restrained by special limitations in the constitution. Prior to the adoption of the constitution of 1879 there were no restraints upon its power relative to this matter and accordingly we find that for more than sixty years not only tide lands but submerged lands have been granted, *Page 619 first by special acts of the legislature — as in case of the water-front of San Francisco, Oakland, Benicia, etc. — and later by subordinate agents acting under the authority of the statutes referred to in Justice Shaw's opinion in L.A. No. 3060. To deny the power of the state to alienate its tide lands is to deny the validity of the disposal of the water-front of San Francisco. But who, at this day, would maintain the right of the state to have her title to that water-front quieted against the claims of the present occupants? As to the right and power of the state to convey into private ownership portions of its tide lands there ought to be no question, and that right and power being conceded, it must be admitted that it rests with the legislature to designate the portions to be so conveyed and to prescribe the terms and conditions of the grant, subject always to the constitutional limitations upon its powers. Those limitations, so far as I am aware, are all contained in article XV of the constitution, and, as they affect the question here, in section 2 of that article, which reads as follows:
"No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof."
In construing grants of tide lands made before the adoption of the present constitution the courts of this state had established the doctrine that the rights of the grantee were subject to the public right of navigation, and this clause of the constitution in plain and concise terms makes that doctrine a part of our fundamental law. And when the fundamental law of the state, assuming the power of the legislature to alienate the tide lands, proceeds to define the rights reserved to the public by its grants, the implication is that they are the only rights reserved. If this is true, the terms of the section above quoted leave little room for construction. The grantee takes the entire estate and interest in the land *Page 620 subject to free rights of way from the uplands to the water-front whenever they are required for public purposes. In the mean time he may subject the land to any use or alteration he may find profitable so long as he does not obstruct the free navigation of the bay, harbor, estuary, etc. If for instance his grant covers mud flats which can be filled in or otherwise reclaimed without detriment to the public right he may do so and a fortiori he may do what is advantageous to the public right — he may put structures upon the land and maintain them there until they are found to be a nuisance in a proceeding to declare them so — each case of this kind to be determined upon its own merits. In this connection I desire to say that the opinion of Justice Shaw goes too far where he says that in grants of tide lands there is reserved "to the state, or its authorized agencies the right to enter upon such lands and make such erections thereon or changes therein as it may find necessary or advisable to adapt the premises for use in navigation or in furtherance thereof." This means, if I understand it, that where the grantee has done nothing to obstruct navigation, the state, to carry out any and every sort of plan of its agencies for the improvement of a harbor may take back the granted land without compensation. As to the question of compensation the passage of Justice Shaw's opinion above quoted is qualified in another place, but even with that qualification it goes too far. I concede that, if after selling a portion of its tide lands within a bay or natural harbor, the state should adopt a comprehensive plan of harbor improvement, such as the establishment of a harbor line and the construction of a sea-wall with docks and piers on that line, any tide land lying beyond that line would be subject to the superior right of the public upon equitable compensation being made to the vendee for his improvements taken, and since the vendee would at the same time become the absolute owner of that portion of the grant inside of the harbor line freed from the former servitude, its increased value might amount to full compensation for the portion and improvements lost.
I have not chosen to encumber this general statement of my views upon the matters so elaborately discussed in the opinion of Justice Shaw by citing the numerous authorities in point. Most of them are cited by him, including Shively v. Bowlby *Page 621 (152 U.S. 29, [38 L. Ed. 331, 14 Sup. Ct. Rep. 548]), andIllinois Central R.R. Co. v. Illinois (146 U.S. 468, [36 L. Ed. 1018, 13 Sup. Ct. Rep. 110]), upon which I mainly rely. In conclusion I refer — without quoting it here — to what I said concerning the doctrine of the last named case in my opinion in the Oakland water-front case, 118 Cal., pp. 182-83-84.