I concur in the judgment of reversal. The grant in this case should be confined within the smallest limits possible. The state should have the benefit of all doubtful constructions in matter of description, and for this reason the westerly line of the grant should be established at the point of low tide. In this respect I agree with the conclusion of the chief justice.
There is no trust relation existing between the state and its people which prevents the disposition of its tide lands. The title to such lands is in the state as perfect, full, and complete as title to Land can vest; and, in the absence of statutory or constitutional law to the contrary, the state has the power to part with such title. This power has always been recognized and exercised by the state. It is the settled policy of the state. Acting under it, the state has parted with tens of thousands, of acres. Indeed, it may be said that all such lands have passed from the state private ownership. If, by some principle of law not to be found in constitution or statute, a trust rests upon these lands in favor of the public, a trust which, like the burden that rested upon Sinbad, can never be shifted, then every grant of such land by the state in the past is void, and the whole theory upon which the state has acted in the disposition of these bands has been wrong. That such result necessarily follows is plain, for this trust, if there be one, is a trust for all time, and attaches to every rood of tide land in the state. If the power exists in the state to release a single square foot from its embrace, that power [ILLEGIBLE TEXT] to release it all; for, when quantity is considered, it [ILLEGIBLE TEXT] question of policy and not one of power. I am satisfied no [ILLEGIBLE TEXT] ever rested upon the tide lands of this state which prevents [ILLEGIBLE TEXT] absolute disposition of them. *Page 203
Conceding the power of the state to vest the absolute title to these lands in the town of Oakland, did the state exercise that . power? It is now claimed by the city of Oakland that it held these lands in trust from the state, and that it was an act ultravires upon its part to dispose of them to Carpentier. Conceding for present purposes the soundness of this contention, still the city has no prop to depend upon for support. This is so because the city of Oakland transferred the title to these lands to Carpentier by ordinance, and subsequently the state legislature, by act of 1861, ratified and confirmed "all the ordinances" of the town of Oakland. This ordinance answered to that description; it came within that class; and this court is bound to assume that the legislature meant what it said. The confirmation and ratification of this ordinance by the state legislature made the grant to Carpentier a legislative grant; and such grant for all purposes stood as a direct grant to him from the state The views here expressed refer, to tide lands not covered by navigable waters. As to lands under navigable waters I leave the question open.