Kimball v. MacPherson

By the Court: A contest having arisen before the State Surveyor General, whether the plaintiff or the defendant was entitled to enter a small parcel of tide land on the shore of the ocean, the controversy was referred to the District Court, which decided that the land is not subject to entry, and, consequently, that neither of the parties is entitled to enter it. The Court finds that the land sought to be entered “is a sand beach at low tide and is covered by the ordinary high tides, and is between the marks of high tide and deep water; that the said land is not susceptible of reclamation and can be put to no useful purpose, except in connection with a wharf or some other superstructure for commercial or navigation purposes; that the said land is not susceptible of use for agricultural, grazing, or pasturage purposes; that the said premises comprise a part of the bed of the ocean.”

We agree with the District Court that it was not the intention of the Legislature to permit a sand beach on the shore of the ocean, between ordinary high and low-water marks, to be converted into private proprietorship under the Act of March 28th, 1868. (Stats. 1867-8, p. 514.) In People v. Morrill, 26 Cal. 336, it was decided that under the Acts of April 21st, 1858, and May 13th, 1861, regulating the sale of swamp and overflowed and tide lands, the shore of the ocean between ordinary high and low-water marks, and which was not susceptible of reclamation, so as to be made useful for agricultural purposes, could not be entered and converted into private ownership. The same proposition was reaffirmed in Taylor v. Underhill, 40 Cal. 471. These [108]decisions are decisive of this case, unless the Act of March 28th, 1868, has modified the former statutes so as to permit lands of this description to be entered.

Without attempting an analysis of the last named Act, it will suffice to say that, in our opinion, it has not had that effect. It is apparent from many of its provisions that it was not intended to authorize the sale of a class of tide lands which before then .had not been subject to entry. But the chief purpose of that Act was to reduce into one harmonious system all previous provisions for the sale of overflowed, swamp, and tide lands, and other land belonging to the State, and to provide for the reclamation of the first named classes. But it contains no provision from which it can justly be inferred that it was- intended to enlarge its scope, so as to include a class of tide lands which theretofore had not been subject to entry. Nothing short of a very explicit provision to that effect would justify us in holding that the Legislature intended to permit the shore of the ocean, between high and low water mark, to be converted into private ownership.