Knudson v. Kearney

SHAW, J.

Plaintiff sued defendant to quiet title to a parcel of tide-land containing about two acres situated on the southern shore of San Francisco Bay. He alleged that he was the owner and was in possession thereof. These allegations were put in issue by the answer, and the defendant’s title and right of possession were also set up by affirmative allegations.

In response to these issues the court found that the plaintiff was not, and never had been, in possession of any of the land, except a rectangular part thereof thirty-five by one hundred and fifty feet in extent; that he had no title or right of possession in any part of the land and was an intruder thereon. It further found that the title to the land is vested in one Eugenie von Leicht, under a conveyance from Ferdinand von Leicht, who obtained title by grant from the state of California, made on March 6, 1873, by the board of tideland commissioners, and that the defendant, Kearney, is entitled to possession thereof under a lease from Eugenie von Leicht. Judgment was thereupon given for the defendant Kearney. Plaintiff appeals from the judgment and from an order denying a new trial.

The grant from the state to Von Leicht was made under the act of March 30, 1868, and the supplementary act of April 1, 1870 (Stats. 1867-68, p. 716; Stats. 1869-70, p. 541). The act of 1868 created a board of tide-land commissioners and empowered it to take possession of all the salt-marsh and tide-land lying under water between the upland and the line to be established by the board as the waterfront along the bay of San Francisco, and situated in the city and county of San Francisco, and to have the same surveyed and platted into lots, streets and alleys, reserving, however, so much thereof as in the judgment of the board would be required for streets, docks, piers, slips, canals, drains, or other uses necessary for public convenience or purposes of commerce, and thereupon to sell the lots at public auction and execute deeds therefor conveying to the grantee all the right, title

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and interest of the state to the particular lot sold to him. The proceeds were to be paid into the general fund of the state.