I agree in the main with the concurring opinion of the chief justice. I differ from the views expressed in the prevailing opinion, and perhaps from the views expressed by the chief justice over the question of the title taken by private owners under grants authorized by and made under the Tide Lands Act. So far as those grants were made after the effective date of section 2 of article XV of our constitution, no difficulty is presented. All such grants were taken subject to the restrictions and limitations of the constitution, and it is sufficient in the case at bar to direct the trial court to enter its decree so declaring, without here attempting to define the scope of those constitutional limitations before argument and in advance of a full presentation of the questions.
But upon the title taken under such grants made before the operative date of section 2 of article XV, my views differ radically from those expressed in the prevailing opinion, and while, by virtue of the fact that practically all of the lands here involved were acquired subsequent to the constitutional provision, the question is of no consequence in the present cases, yet as the court has unnecessarily gone into an elaborate consideration of the matter, it seems to me proper to express those views.
The power of the state to deal with and dispose of its tide and submerged lands (always under the recognized supreme power of the United States over them) has been stated over and over again by the supreme court of the United States to be absolute. Thus inHoboken v. Pennsylvania R.R. Co., 124 U.S. 656, [31 L. Ed. 543, 8 Sup. Ct. Rep. 643], it is said: "Lands below high water mark on navigable rivers are the absolute property of the state, subject only to the power conferred on Congress to regulate foreign commerce and commerce between the states, and they may be grantedby the state, either to the riparian proprietors or to a stranger, as *Page 622 the state may see fit." And in Weber v. Harbor Commissioners, 18 Wall. 57, [21 L. Ed. 798], it is said, concerning this class of lands in our own state: "Upon the admission of California into the union upon equal footing with the original states, absolute property in and dominion and sovereignty over, all soils under the tide waters within her limits passed to the state, with theconsequent right to dispose of the title to any part of saidsoils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government." Moreover, until the decision of Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, [36 L. Ed. 1018, 13 Sup. Ct. Rep. 110], no court had ever held that the action of a state legislature in disposing of these lands was subject to judicial review upon the theory that any such disposition violated the state governmental trust upon which they were held. Still less was it ever adjudicated that a federal court would decree that a state had violated the state governmental trust upon which it held these lands, and that therefore a federal court (the supreme control of the United States government over the matter not being in question) would declare void a grant solemnly made by a state of any part of such lands.
The power of the state in dealing with such lands is not limited to the disposition into private ownership of such parcels as are to be used in aid of commerce. True, parcels may be so disposed of. The rule, however, is and always has been, and is so asserted and reasserted even by the majority in the Chicago water-front case, that the state may dispose into private ownership of parcels that are not to be used in aid of commerce, that are to be taken away from the possibility of commerce, provided this disposition does not impair the public trust to maintain sufficient of these waters and lands for purposes of navigation and commerce. Thus the state may not only sell such lands for the purposes of the construction of wharves, slips, warehouses, and the like, but she may sell them also to be wholly reclaimed from the sea, and when so reclaimed to be devoted to any one of the innumerable legitimate *Page 623 objects of modern civilization — stores, warehouses, factories, residences, or agriculture.
This, in varying language, is repeatedly said in the majority opinion in the Chicago water-front case. Thus, "it is grants of parcels of land under navigable waters that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which being occupied do notsubstantially impair the public interest in the lands and watersremaining that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power."
The prevailing opinion discusses at length the acts of the state in offering for sale its tide lands at a fixed price, passes lightly over the fact that all such lands within cities and towns and within two miles of their boundaries were excluded from sale, and declares, from the nature of these granting acts, it is not to be assumed "that the state, which is bound by the public trust to protect and preserve this public easement and use, should have intentionally abrogated the trust as to all lands not within the very limited areas of the reservations, and directed the sale of any and every other part of the land along the shores and beaches to exclusive private use, to the destruction of the paramount public easement which it was its duty to protect, and for the protection and regulation of which it received its title to such lands."
From this view I utterly dissent. The whole legislation of the state of California demonstrates to my mind beyond peradventure that the legislature had keenly in mind its own powers and the limitations upon them; that it was well aware of the need of retaining sufficient of these lands (tide and submerged) for the free use and development of commerce, and that it did so by declaring that it would not grant into private ownership any of such lands, the private ownership of which might interfere with commerce and navigation, within from two to five miles of any city or town — wiser legislation than is found in the statute books of most states, and the only limitation upon the legislative power of sale fixed by the present constitution (art. XV, sec. 3); that it knew, while California had a coast line exceeding a thousand miles in length, that the harbors upon this line were very few. Cities and towns were then upon these harbors and it preserved *Page 624 the utmost freedom of commerce by refusing to sell to private citizens any of these lands, not only within the limits of cities and towns, but within from two to five miles of the boundaries thereof. As to the rest of these lands the offer of them by the state for sale was a declaration by the state that they were not needed for purposes of public commerce and navigation; that their title and their use might better go into private ownership, the lands to be reclaimed, if they were susceptible of reclamation, and to be devoted to any use to which, after reclamation they might be put, or to be devoted to purposes of commerce, if along our inhospitable shore some enterprising owner might find a cove, erect a wharf, and build up a coastwise business. To say that such an offer of sale means, as the prevailing opinion says, that the state was always preserving the jus publicum, is to make all the precautionary measures which the state actually adopted vain and ridiculous. If the state in these public offers of sale was retaining the jus publicum, it might just as well have hoodwinked its citizens still further by allowing them to purchase the lands which it reserved within the five and two-mile limits of cities and towns. It could just as freely have sold those lands and then made answer that it was selling merely the jus privatum. What would be said if the city of San Francisco should offer for sale in lots one of its public parks, survey the lands, make sales, sweep the money into its strong box, execute its deeds without reservation, and when the purchaser came to take possession meet him with the declaration that of course all that it was selling was the jus privatum, which he could enjoy only when the juspublicum was abandoned? We repeat that the state has shown no disposition as yet to do this thing. But that it may be done under the sanction of the prevailing opinion there can be no doubt, and I am compelled to dissent from the view that any principle of law or equity countenances such a statutory construction.
It is said in the prevailing opinion that in our decisions upon the titles to these tide lands "the double right of the state, private and public, does not seem to have been suggested or considered." The answer to that is complete. The earlier judges of this court were not, as is implied, ignorant of the common law. They had full knowledge of the governmental trust in *Page 625 navigable waters of the jus privatum and the jus publicum. Upon numerous occasions they evinced this knowledge. Their silence while reviewing the acts in question, like the silence of the supreme court of the United States in the Chicago case, arose from the fact that never until now was it supposed that the sale by the state was anything other than a sale of all her interest, that her patent, containing no reservation, was a declaration that the lands sold could go into private ownership without impairment of the state's governmental duty to preserve enough of them for purposes of commerce and navigation. Let us instance the very grant here under consideration to show how utterly inapplicable the theory that by them the state has abandoned or surrendered a public trust, or that to construe the grants as I construe them, would be the equivalent of declaring that the state had surrendered such trust. Let us take the known conditions existing in the harbor of San Pedro. Speaking generally, the uplands about that harbor have been incorporated with the city of Los Angeles. The city of Los Angeles admittedly owns, for public purposes, harbor lands and facilities for wharfage, dockage, and slips, sufficient to accommodate the commerce of Liverpool and Antwerp combined. There is not the slightest pretense here made, and none can be made, that by sustaining these grants the harbor of a great city is given over to private ownership, or that the commerce of a great maritime port is bottled up. These particular grants are insignificant in area and extent as compared with the lands for harbor purposes unquestionably controlled and owned by the city of Los Angeles, and yet we are asked to believe because certain small fractions of the tide lands (not even the submerged lands) have years and years ago been purchased and paid for, that to uphold the complete ownership of those lands in the private individual under a grant by the state, which in no way limits that ownership, or even to say that the state should in retaking them repay what it had received for them, is to work some appalling destruction of a governmental trust. As wholly untenable to my mind is the general proposition that to construe the state's offer to sell these tide lands as an offer to sell its whole interest into private ownership works a destruction of the governmental trust. First, there is the reason already pointed out that the state has studiously reserved *Page 626 from sale all the lands which it then considered necessary for purposes of public commerce, and, second, because the argument presupposes the purchase into private ownership of the whole coast line of California. Such an amazing result in all the years that have followed has of course never taken place; never could or would take place. The state knew of every sale which was made under its offer, and the state could at any time, if it considered that private owners were increasing too rapidly in number and its tide lands were being too rapidly taken over into private ownership, have repealed its laws and withdrawn its offer. To my mind the rational way to view the offer to sell, the only way indeed in which it must be viewed, is to take the case of Richard Roe, who has purchased a quarter of a mile of mud flats, who has reclaimed them from the ocean, who has built his home or factory upon them and who is now told that he must surrender possession without compensation at the demand of the state or any of its agencies, because all that he bought is a jusprivatum, and if he contends that he bought more, then it must be answered that to hold with this contention is to destroy a great governmental trust.
I do not for one moment question the right of the state to retake any of such lands which she may have improvidently sold or which subsequently, by the growth and development of commerce, seem to her necessary for purposes of navigation. But I deny utterly that she can do this by way of confiscation, without payment to the private owner for his private loss. And I care not whether it be said that the lands were sold into private ownership in aid of commerce acting through private persons, or whether it be said that they were sold as land not necessary for commerce, or whether it be said that they were sold without any specific declaration or intent whatever upon the subject. If a citizen's private rights of property are to be taken after such a sale or grant, they are not to be taken under the fiction of a reserved jus publicum. They are to be taken under the actualdominium eminens — the right of eminent domain, and compensation must be made therefor, or else there is sheer confiscation. Therefore, I say that the construction put upon these grants of tide lands does violence to the law and that such construction if given execution *Page 627 violates the constitution of this state and of the United States.
Melvin, J., and Lorigan, J., concurred.