I concur in the judgment, and in the opinion, except in so far as it deals with *Page 535 the question of the effect of the statute of limitations. I am not prepared to hold that the statute will not run against the state as to tide land with respect to the subordinate estate which it holds in a proprietary capacity, and which it may convey subject to the paramount trust under which the state holds all tide land. This precise question, discussed at great length in the opinion, has never been expressly decided, and I do not think the conclusion reached by Mr. Justice Shaw is at all compelled by any previous expression of this court. Of course, it was involved in one or two of the cases cited, though probably never argued, and certainly never discussed in any opinion.
A discussion of this question is entirely unnecessary in this case. It appears here, as stated in the opinion, that the implied finding that the plaintiffs and their predecessor have not hadactual possession of any of the tide land is sufficiently sustained by the evidence. Their real claim is that by virtue of a deed purporting to describe and convey to their predecessor such tide land and adjoining upland, the grantors being the owners of the upland, the subsequent possession by their predecessor and themselves of the upland carried constructive possession of the tide land. That such a claim is without good foundation is expressly held in Wheatley v. San Pedro, etc. R.R.Co. (L.A. No. 3299), ante, p. 505, [147 P. 135], decided March 4, 1915, where the question is exhaustively discussed, and it is not necessary to say more on the subject here. This sufficiently disposes of the contentions of plaintiff herein based on a claim by prescription or under the statute of limitations.