151 FEDERAL REPORTER.

"The grant to Oakland was, of the lands lying between high-water mark and ship channel within these boundaries, and therefore included nothing west of the line of low tide on the bay front, and nothing beyond the line of low tide on the north and west shore of the estuary. I say nothing was included beyond this line along the estuary, because the estuary was itself a part of the ship channel, and there was no part of the town between it and high tide on the south and east side. My reason for saying that the estuary was a part of ship channel is that it was in fact navigable, and that fact had been recognized and declared by an act passed only one day before the passage of the act incorporating Oakland. St. 1852, p. 182, c. 108. By this act the 'stream called San Antonio creek' was declared navigable from its mouth to the old embarcadero of San Antonio, and all obstructions to its navigation were forbidden. It is true this act does not seem to have included the northern branch of the estuary; but, in the view I take of the matter, legislative recognition of the fact of navigability was not necessary to constitute a ship channel. The fact was itself sufficient, and the coast survey map shows that the northern branch was navigable for every class of vessels that could go to San Antonio. Each branch had a depth of two feet at low tide-the same as the depth on the bar at the mouth of the estuary, which meant a depth at full high tide of from seven to eight feet every 24 hours, and this was sufficient to accommodate a very important traffic."

The attention of the court was directed to the doctrine of the Chicago Water Front Case (Illinois Central Railroad v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018), with reference to the power of the state to authorize the town to convey submerged lands to private owners, and the opinion proceeds as follows:

"If the conclusion above stated is sound, if the grant to Oakland comprised only the strip of land bounded by the lines of ordinary high and low tide and extending along the estuary and bay front of the town, the case is at once relieved of the question so much discussed in the argument as to the power of the Legislature to make such a grant to a private corporation or natural person, and the only question to be considered is whether the state has in this instance made the grant as claimed, for there is nothing in the doctrine established in the Chicago case to impeach the power of the Legislature of California or of any state to alienate tide lands-by which expression I am to be understood as referring to those lands only which are covered and uncovered by the daily flux and reflux of the tides."

And the chief justice quoted with approval the language of Judge Sanderson in Ward v. Mulford, 32 Cal. 372, in which it was said:

"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 or ordinary tides. Such land is held by the state in trust, and for the benefit of the people."

These expressions of the opinion of the chief justice, concurred in by two other members of the court, and supported by the associate justices especially concurring, render it clear that the majority of the court meant to say that the granted lands were tide lands or shore lands, and no other lands. This is borne out by other expressions of the chief justice in the opinion. He refers to the title under the grant as "private ownership of the shore," and to the grantee as a "grantee of shore lands," and again, arguendo, he refused to impute to the Legislature an intention to vest the town council with authority to cut the town off from access to the water front "by a transfer of the whole strip of shore lands."

The opinion of the Chief Justice was concurred in without modification or reserve by two others of the members of the court. Mr. Justice McFarland filed a brief concurring opinion, in which he said: "I concur in the judgment of reversal, and in the conclusion reached in the opinion of the chief justice, that the grant involved in this case and the land claimed by the water front company is limited by the line of low tide on the westerly side and on the estuary, and with respect to all other boundaries, by the lines designated in said opinion. In that view the case at bar is not within the Chicago case, and, with respect to the general power of the state to dispose of her lands lying under navigable waters within her borders, I express no opinion."

Justice Garoutte also concurred, and said:

"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. * * The views here expressed refer to tide As to lands under navigable waters,

lands not covered by navigable waters. I leave the question open."

Mr. Justice Harrison, with whom concurred Mr. Justice Henshaw, dissented, on the ground that no valid grant of the lands had ever been made. We have, then, the concurrence of five of the members of the court in the decision as to the limits and definition of the boundaries of the town of Oakland and of the grant of lands to the town.

We have here, then, the decision of the Supreme Court of California, deliberately expressed in carefully chosen phrase, that "ship channel,' as the term is used in defining the boundaries of the town, is ordinary low-water mark; that the boundary follows the line of low tide along. the south shore of San Antonio creek, by the low tide of the bay on the headland south of the mouth of the creek, thence across the navigable water of the estuary to the low-tide headland on the north thereof, and thence northeasterly by the low-tide line of the bay; and that the grant of lands to the town of Oakland is only of the land between high-water mark and ship channel within those boundaries, and includes nothing west of the line of ordinary low tide on the bay front, and nothing beyond the line of ordinary low tide on the north shore of the estuary. These lines are definite and fixed and capable of ascertainment. The lands in controversy in the present suit lie entirely without the limits of the grant to the town as it is thus judicially determined by the court.

But the court below found, in the decision of the Supreme Court of California, a meaning widely variant from this, and reached the conclusion that the line of low tide, which the opinion in that case declared was the line of ship channel, did not mean the line of low tide on the bay front, but another line lying waterward of low tide, the line of the linfit of convenient navigation from the bay, a line along the outer edge of a certain bar lying about a mile off the mouth of San Antonio creek, a line which is now approximately marked by the United States bulkhead line. This conclusion was reached upon a consideration of certain expressions which are used in the opinion of Chief Justice Beatty,

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one of which is the sentence found on page 180 of 118 Cal., page 284 of 50 Pac.: "Ship's channel comprises the waters left free to navigation." In this the court below found support for the theory that Chief Justice Beatty meant by the line of low tide the line at which convenient navigation was interrupted at any stage of the tide. The sentence was used in connection with a discussion of the San Francisco beach and water lot act, to which the Chief Justice adverted in search of an analogous use of the term "ship channel." He found that in that act the expression "line of ship's channel" had been used. "Now, here," he said, "we have an indication of the meaning of the term. The water front established by law and ship's channel are coterminous. The line to which the city may extend its streets and within which it may sell lots and authorize the purchasers to fill them up and occupy them is water front, immediately beyond is ship's channel. And the chief justice reached the conclusion that the term "ship's channel," so used in the act relating to San Francisco, was intended to include all the navigable waters of the bay outside of the bulkhead line as then established by law. But, proceeding with the discussion, he said:

"But this does not fully solve the question as to Oakland, because there was not in 1852, and never has been, any law establishing a water front or bulkhead line of that city. We are, however, helped this far: Ship's channel comprises the waters left free to navigation, and, when we are required to locate its boundaries with precision, and no artificial boundary has been established by competent authority, we are driven to seek a definite natural bo. 1. ary, if any such may be found, and here we do find such a boundary at the line of low tide. This is a definite line, and the only definite line beyond the line of high tide, and my conclusion is that the line of low tide as it existed on the 4th of May, 1852, was the western boundary of the town of Oakland intended by the original act of incorporation."

Nothing could be clearer, we think, than that the opinion directly. and entirely rejects the theory of navigability as the test of the position of the line of low tide. In the case of the San Francisco beach and water lot act there was a definitely marked line, a bulkhead line between land and water. That was found to be the line of "ship's channel," within the meaning of that act. But, along the water front of the town of Oakland at the time of its incorporation, there was no such line. The only fixed and definite line was the line of low tide. This was the line which the Supreme Court of California adopted, and, when the Chief Justice said, "ship's channel comprises the waters left free to navigation," he did not mean waters free from obstruction to navigation, but all the waters of the bay proceeding landward to the line of demarcation from the land. We find no warrant for holding that other line was intended. There was no other line.

any

But the decision of the court below seems to have been principally influenced by the sentence contained in brackets in the following portion of Chief Justice Beatty's opinion:

"The call for the western boundary is 'thence northerly and easterly by the line of ship channel to a point where the same bisects the said northeastern boundary line.' But the three-fathom line does not run northerly and easterly. It runs throughout its whole extent in a uniform northwesterly direction,

whereas, the line of low tide from the mouth of the estuary at low tide [this, point is marked by the intersection of the United States government bulkhead line with the jetty walls] exactly fulfills this call in the description; that is, its course is northerly and easterly-a circumstance sufficient in itself to counterbalance the force of the words 'thence to ship channel,' in the previous

call."

The court below, after quoting this language, said:

"We have here a positive identification of the point of departure for the last call of the description, namely, commencing at the point marked by the intersection of the United States government bulkhead line with the jetty walls."

We are unable to agree with the court below that Judge Beatty intended to find in the intersection of the government bulkhead line with the jetty walls a point of departure for the last call of the description, for there were two of those walls separated by an interval of 800 feet. We understand the opinion of Judge Beatty to mean that the course of the western boundary line of the town running northeasterly from low tide at the southwest corner of the town across the mouth of the estuary is approximately marked by the intersection of the government bulkhead line with the south jetty wall. We know that he had before him the United States coast survey map of 1859, and it can be seen that on that map, on the scale upon which it is drawn, a line crossing the estuary from the low tide line of the bay on the south side, of the estuary, to the corresponding low-tide headland on the opposite side thereof, will pass apparently but a short distance aside. of the bulkhead line where that line touches the shoal or bar off the mouth of the estuary. It should be borne in mind that the bracketed. sentence so relied upon appears in a portion of the opinion which is addressed to the contention presented by counsel upon both sides of that case that by ship channel was meant the three fathom line in the bay. In answering that contention the chief justice directed attention to the fact that the three-fathom line would never run northwardly and eastwardly according to the call of the last course, but would always and uniformly run in a northwesterly direction. He was not, in that portion of his opinion, attempting to locate the actual position of the line of low tide. It is true, as he said, that from the mouth of the estuary the boundary line runs northerly and easterly. That line is, by operation of law, the low-tide line across the mouth of the estuary. It is not a low-tide line in fact. We cannot find, in this casual, and perhaps inadvertent, expression of the opinion, an intention to modify the whole purport of the decision, elsewhere so clearly and precisely expressed in words carefully chosen, and to declare that it does not mean what its clear import intends, but something entirely at variance therewith. Throughout the whole discussion, the chief justice had been in search of a "definite natural boundary," to meet the call for the line of ship channel. He found it in the line of low tide, and said: "This is a definite line, and the only definite line beyond the line of high tide." The line north of the estuary, which was adopted by the court below, is not only not a definite line, but it is not a natural line. Between it and high tide lies the definite natural line of low tide. The appellee, while admitting that the western boundary of the town

151 FEDERAL REPORTER.

of Oakland is as we have found it, contends that that western boundary is throughout its whole length the line of low tide, and that this is likewise the western boundary of the grant, within the meaning of the decision in the Oakland Water Front Case, locating the granted lands between high and low tide. The appellee's contention is best exhibited by its map, which is here inserted: