Griffing v. Gibb

— The title of defendants in this case rests upon a legislative grant from this state. The grounds on which complainant assails that title, are: 1st. That the acts of the legislature relied on did not pass to the grantee such interest in the land as would authorize the defendants, who have become subrogated to that title, to make the improvements they propose. 2d. If they have that effect, they are unconstitutional and void. We will consider them in their order.

A direct conveyance by legislative grant is equivalent to a patent (Lessee of Grignon v. Astor, 2 How. [43 U. S.] 319); and a conveyance by statute to classes of persons, is as legal as those made to specified individuals (Guitard v. Stoddard, 16 How. [57 U. S.] 494). The inquiry in limine is, did the acts of the legislature on which defendants rely, convey such interest as authorizes the making improvements on the lots?

The act of the legislature of this state, of 20th March, 1851 (Comp. Laws, 764), professes in its title to “dispose” of the property of the state. The first section gives the boundaries of certain land, within the limits of which the lot claimed by defendants is situated. In the second section, the use and occupation of the land previously described, and which had been sold or granted by any alcalde and confirmed by the ayunta-miento, and recorded in the manner and at the time prescribed, was granted for the term of ninety-nine years. The defendants hold under a grant from an alcalde, confirmed by the ayuntamiento, and recorded in conformity with the terms prescribed by the act of the legislature. They, therefore, come literally within the class of grantees to whom the use and occupation of the lands was intended to be granted. The third section of the act declares that the original written instrument of conveyance, or in ease of its loss a record thereof, may be read in evidence in any court of justice in this state, upon the trial of any cause in which the contents of the same may be important to be proved, and shall be prima facie evidence of title and possession to enable the plaintiff to recover the land so granted. The fourth section of the act, declares that the boundary line described in section first, shall be and remain a permanent water front of said city; the authorities of which shall keep clear and free from all obstructions whatsoever, the space beyond said line, to the distance of five hundred feet therefrom. Now, if the al-calde grant be admitted ex gratia to be void, although a private individual cannot confirm that which was void, the sovereign or the legislature may. In this case, the legislature have not only granted the use and occupation of the land, but have made certain documentary title, now in the possession of defendants and produced by them, evidence of title and possession. I cannot doubt the meaning and effect of this statute.

It has been strongly urged that nothing is to be considered as passing by implication in a public grant, but it is to be strictly construed. Such is the proper construction made of a grant by the king at the suit of his subject. Such construction has been applied in its full extent by the courts of this country, to acts of the legislature graining privileges to private corporations, franchises and monopolies to individuals; but it may be well questioned, whether the rule is to be strictly applied to the purchaser under an act of the legislature. In such case, the act and every part of it, should be construed according to the ordinary and grammatical sense of its language. But it is not necessary to discuss this question; as the terms of the act under consideration clearly conveys by grant, the use and occupation of the land. That it was intended to permit structures and improvements on the land, within the water-front which had been granted, is evident from the provision introduced into the law, — that the authorities should keep clear all obstructions outside of that line. The last section of this act, provides that nothing therein contained shall be construed as a surrender by the state of its right to regulate improvements, so that they shall not interfere with the shipping and commercial interests of the bay of San Francisco. AVe consider this a mere reservation of the right of navigation police, by which the state very properly reserved to itself the protection of the shipping interests. The very fact that it reserved to itself the right to regulate the improvements, shows that such were contemplated to be made, and therefore such power was reserved to enable the state to interpose in case the structures made would injure the harbor.

The next act of the legislature on this subject, is that passed on 18th May, 1853 (Pamph. Laws 1853, p. 219.) This refers to the previous act, of 26th March, 1851, and the water-front adopted by it. This act makes provision for the sale of the interest *36of tlie state in the property included in the-boundaries described in the first section of the preceding act. In its 8th section it enacts that upon a sale made by the commissioners to whom by the act the sale is confided, so soon as the purchaser shall comply with the terms of sale, a deed shall be made to him, which shall be prima facie evidence of the regularity of the preliminary proceeding and sale, and the title and right of possession in the grantee his heirs and assigns, upon which actions for the recovery of real property, or for injuries thereto, may be sustained and defended in all the courts of this state.

It will be unnecessary further to discuss the question as to the quantity of interest which passed under the acts of the legislature we have had under consideration; as that question has been adjudicated on by the highest judicial tribunal in this state, to which we shall hereafter refer.

2d. The second ground taken for the complainant is, that if these acts of the legislature do pass a title to the land as alleged by defendants, they are unconstitutional and void. It is urged in argument, that the legislature of this state in the enactment of these laws have legislated retro-actively, have divested vested rights, have devoted property that should have been held sacred to public use, to private purposes; that the obstruction, if completed, will amount to a nuisance within the meaning of the definitions given to it by law. With the vindication of this law from the foregoing objections, this court has nothing to do. That must be left to the decision of the supreme court of this state. So far as this court is concerned, all the foregoing objections to these acts of the legislature may be valid; still, if neither shall be found to conflict with the constitution of the United States, or some act of congress passed in pursuance thereof, they cannot authorize it to declare those laws unconstitutional and void. Thus, if the legislature of a state were to take by its action private property for public use, without just compensation, this court could not declare it void; because the 5th amendment of the constitution of the United States, which inhibits the so doing, is only a limitation on the powers of the United States, and not applicable to the legislatures of the states. Barron v. Baltimore, 7 Pet. [32 U. S.] 243. In the case of Baltimore & Susquehanna Co. v. Nesbit, 10 How. [51 U. S.] 395, the supreme court say: That there exists in the state legislatures a power to enact retrospective laws, “is a point too well settled to admit of question at this day. The only limit upon this power in the states by the federal constitution, and therefore the only source of cognizance or control with respect to that power existing in this court, is the provision that these retrospective laws shall not be such as are technically ex post facto, or such as impair the obligation of contracts.” In the case of Carpenter v. Pennsylvania, 17 How. [58 U. S.] 456, 462, it is said: “This court has no authority to revise the act of Pennsylvania upon any grounds of justice, policy, or consistency to its own constitution. These are concluded by the decision of the public authorities of the state. The only inquiry for this court is, does the act violate the constitution of the United States, or the treaties and laws made under it?”

It is next urged, that the mischief complained of constitutes a nuisance within the meaning given by the definition annexed to that term by law. It may be admitted that the obstruction in this case may (although existing by an act of the legislature) be considered a nuisance, in view of the common-law definition of the term; yet it surely cannot be successfully contended, that it is within the power of this court to abate what the legislature has willed to exist,- on the ground that it is a nuisance at common-law! Arguments and authorities adduced in relation to mere local nuisances, and as to the alleged injustice and inconsistency of these acts of the legislature of this state, are to be discarded by this court; and the question confined to the single inquiry, “Does either of these acts conflict with any provision of the constitution of the United States, or any act of congress passed under it?” Another reason precludes inquiry into them. They, as well as the interest they convey, have been adjudicated on by the constituted authorities of this state. How far is this court concluded by the construction placed by the highest judicial tribunal of this state upon one of its local statutes? In Woolsey v. Dodge [Case No. 18,032], the learned judge says: “This court brings into a state no novel principles. * * * It administers the law of the state. In giving effect to the statutes of a state, where there is no conflict with the federal constitution, the courts of the Union follow implicitly the rule established by the supreme court of the state.” So far has this been carried, that the supreme court of the United States has reversed its own decision in order to conform to a change of the supreme court of a state in the construction of its statutes. In Mc-Keen v. Delancy’s Lessee, 5 Cranch [9 U. S.] 22, the principle enunciated is, that, in construing the statutes of a state, the supreme court will adopt the construction settled in the state courts, though not in accordance with its opinion. In Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 157, it is affirmed, that if the construction of a state statute is settled by the highest court of a state, this court adopts the construction. “If (said C. J. Marshall) this question has been settled in Kentucky, we must suppose it to be rightly settled.” Such is the unbroken authority on this point. To pursue it further is unnecessary.

We now turn to the exposition given by the constituted authorities of this state to the acts of the legislature before cited.

*37In the case of Eldridge v. Cowell, 4 Cal. 80, a hill was filed for the very purpose sought in the present. In that, as in this, the defendant relied upon the same legislative acts as the warrant for his structures. Under the instruction of the court, a verdict was rendered against the plaintiff. The case was carried to the supreme court. In adjudicating the case, that tribunal enunciated the following propositions: 1st. That the extension of the water-front of the city, as laid down by the survey, and in the plan of the city of San Francisco, was perfectly legitimate in the establishment of a seaport town. 2d. That the right of the owners of water-lots, to fill them in with earth for the purpose of improvement and use, was practically admitted by plaintiff, by filling in part of his own lot, and the street in front of it, which was in the water. 3d. That it was sufficient that, by thg act of 26th March, 1851, the plan of the city was recognized by the state, and property covered by tide-water vested in . individuals. In another case, that of Cooke v. Bonnet, 4 Cal. 397, that court again recognized the validity of the act of 26th March, 1851. By a uniform rule, we have seen it is the duty of this court to conform to the construction placed by the highest state court on the statutes of her state. This will render it unnecessary to discuss many questions which have been raised in this case; and we will confine ourselves to the question we are to decide, are these acts of the legislature of this state in conflict with the constitution of the United States, or any act of congress passed in pursuance thereof? The first inquiry is, as to the right of California to pass these laws; and this involves her right to the soil under navigable waters within her territorial limits. The second inquiry is, to what extent is such right diminished by her membership in the Federal Union? When the Revolution was consummated, the people of each state became sovereign, and in that character had the absolute right to all navigable waters and the soil under them in their then limits, and still hold that right subject to any surrender of it by the constitution of the United. States. Martin v. Waddell, 16 Pet. [41 U. S.] 411. When California was admitted into the Union she became entitled to the same right, being admitted on an equal footing with the original states. Pollard’s Lessee v. Hagan, 3 How. [44 U. S.] 212, 229. The right of eminent domain over the shores and soil under navigable waters, for all municipal purposes belongs exclusively to the states within their respective territorial limits, and they only have the power to exercise it. This right of eminent domain consists of the right of the sovereign to dispose of all the wealth contained in the state. Id. 223, 230. Such is the right of California to the soil under the waters of the bay; and it is only qualified by the prerogatives she has surrendered to the United States when she came into the Union. One of those prerogatives was the right to regulate commerce. Any exercise of her right of eminent domain which does not conflict with a regulation of commerce is legitimate. This statement would seem to show that a partial, local, or slight obstruction which operates only on some specific spot, — for instance, the construction of a wharf, the establishment of a water-front to the city, and the like, — cannot per se constitute such a national nuisance as would conflict with the power of congress to regulate commerce, or empower this court to abate it. The state must grossly abuse her right by an essential and material obstruction of a communication, which it is the right as well as the duty of the government of the United States to keep open as a high road to the commerce of the citizens of the United States and of the world. There may be many obstructions which a state may authorize, nay, many which by local laws would be nuisances; still, if they are not in nature essential and serious, so far as this court is concerned they must remain so long as the authorities of the state, legislative and judicial, decree their existence.

Let us see to what extent the power invoked in this case has been exerted by the federal judiciary. In Pennsylvania v. Wheeling & Belmont Bridge Co., 9 How. [50 U. S.] 647, it has been carried to a greater extent than in any case I have seen. A bill was filed to enjoin persons from the construction of a bridge across the channel of the Ohio. Before the argument of the cause, the work was completed and spanned the whole channel between Zanesville and the main Virginia shore, a distance of 1,000 feet. The cause was referred to a commissioner with power to take proofs and report whether the bridge was an obstruction, and if so, what change in the structure might be made, if any could he, consistent with the continuance of the same, that will remove the obstruction to the free navigation. Upon the report of the commissioner, finding among other things it was an obstruction, the court decided, that if the navigation could be restored by a draw, so as to render it in the opinion of the court free from unreasonable obstruction, the bridge should not be treated as a nuisance. By their final decree they, directed an elevation of the bridge to the height of eleven feet above low-water mark by the Wheeling gauge of the Ohio river, such elevation to be maintained the distance of three hundred and eleven feet on a level headway over the channel of the river. Thus the bridge was permitted to span in its former dimensions over two thirds of the river’s channel. If the existence of an obstruction across a navigable stream ceases by diminishing it one third, it shows that obstructions created by a state are not to be treated by this court as common nuisances. The United States and the state government both have rights, which in such cases the court is bound to protect. In Spooner v. McConnel [Case No. 13,245], the court say, “We, therefore, can entertain *38no doubt that the legislature may improve at their discretion the navigable rivers of the state, and authorize the construction of any works on them which shall not materially obstruct their navigableness.”

We come now to the character of the obstruction. The act of congress approved 9th September, 1850 [9 Stat. 452], under which California was admitted into the Union, declares “that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor.” This provision may be considered to 'extend to keeping the navigation free from material obstructions; and if such be the case, then if in this case the obstruction complained of were of a character to obstruct the free navigation of the waters of the bay, it would be the duty of this court to interpose. Can it be that the structure of a wharf on the front line of a city can be of such character? Such does not seem the opinion of the pilots of this port. The affidavits of seventeen of them have been filed in this case. They all swear they are duly licensed as pilots, and unite in deposing that in their opinion the contemplated structure of defendants, if completed, would in no way impede or injure the free navigation of any part of the bay now navigable, but would be an advantage to the harbor of San Francisco, by affording wharf-age to many vessels that cannot now approach the wharves in that part of the bay. This body of testimony is sustained by the depositions of several others, among them George Simpton, formerly a pilot and subsequently harbormaster of this port. Opposed to this testimony there are' numerous depositions filed as counter-proof. Several of these limit the apprehended danger to the immediate locality. But looking at the construction itself, we cannot consider it an unreasonable one, amounting to that national nuisance of which this court, in a controversy arising out of the action of a state towards its citizens, can take cognizance. The width of the bay opposite to the spot where the contemplated wharf is to be built, is believed to be seven miles; the width of the ship channel opposite the same spot, a fraction less than two miles; and the distance intermediate the spot where the wharf' is to be built and the usual track of vessels entering into and departing from the harbor, as given by the pilots, is five hundred feet. This spot is part of the soil below low-water mark, the property of the state, granted by her to those under whom defendants claim.

There is nothing in this case which would authorize this court to declare the .structure of a wharf at that locality to be a nuisance,' on the ground that it impeded the free navigation of the bay. The bill does not so treat it. There is a general allegation that the work is wrongful and if continued and completed will obstruct and cut off this plaintiff from the use and enjoyment of his riparian rights, and entirely destroy his present waterfront. The only additional allegation in the bill on this point is, “that if said work be permitted to progress, the same will greatly impede the free navigation of that part of the bay now navigable, and great wrong will accrue to the public, especially to the plaintiff.” There is no allegation in this bill of any obstruction which will impede or threatens to impede the harbor or bay, as a common highway. The bill is predicated upon the idea that an obstruction to any extent of a portion of navigable water by the construction of a wharf in pursuance of a system of improvement laid down by the state in establishing a water-front to her port of entry, can in itself constitute a nuisance which this court may enjoin. Upon a careful examination of this case we consider that the motion for an injunction must be denied; and it is ordered accordingly.