US SUPREME COURT DECISIONS

The State of California, upon its admission into the Union, acquired absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject to the paramount right of navigation over the waters, so far as such navigation might be required for the necessities of commerce with foreign nations or among the several states, the regulation of which is vested in the general government. Shively v. Bowlby, 152 U. S. 1.

The State of California, pursuant to an act of legislature, issued its patent in 1872 for certain submerged lands in San Francisco Bay, about fourteen, acres and upwards, which the patentee's grantees improved by filling in and building docks and warehouses. Within the boundaries were two small rocks or islands, one fourteen one-hundredths of an acre and the other one one-hundredth of an acre in area . In 1899, the President made chanrobles.com-red

Page 189 U. S. 392

an order reserving the two rocks and describing them as of the above mentioned fractional acreage for naval purposes. The United States demanded possession of the original islands and of the adjacent property appurtenant thereto.

Held that as to all the premises except the two rocks or islands, which were awarded to the United States, the grantee under the state patent had good title, and could not be ejected.

Held that in the absence of explicit directions, the President's order could not be construed as appropriating such valuable property as that adjacent to the rocks and islands as being appurtenant thereto.

Ejectment brought in the Circuit Court of the United States, Ninth Circuit, Northern District of California, by the United States against the California Dry Dock Company. Pending the hearing, the latter company sold and transferred its title to the Mission Rock Company, a corporation, which thereupon entered into possession of the property. By stipulation, the Mission Rock Company was substituted as defendant, and an amended and supplemental complaint was filed.

The property sued for was described by metes and bounds, and, it was alleged, constituted a

"tract of land, being a square, including the rock known as Mission Rock, and containing 14.69 acres, more or less, and being a fractional part of the westerly half of section 11, township 2 south, range 5 west, Mount Diablo base and meridian."

Damages and rents and profits were also prayed in the sum of $355,000.

By consent, the case was tried by the court, and its findings, as far as material, are as follows:

"II. At the date of the admission of the State of California into the Union, the premises sued for consisted of two rocks or islands adjacent to one another and projecting above the plane of ordinary high water in the Bay of San Francisco, the larger of which rose to a height of more than twenty and less than forty feet above such high water. Also of other lands contiguous thereto and surrounding said rocks or islands, which were completely submerged and over which the daily tides continuously flowed and ebbed. The rocks or islands referred to are laid down on the chart in this cause, and marked Exhibit 'A.'"

"III. The areas of these rocks or islands above ordinary high water mark at the time of the admission of the State of California

Page 189 U. S. 393

into the Union were as follows: the one on the chart called 'Mission Rock' had an area of fourteen one-hundredths (14-100) of an acre; the other had an area of one one-hundredth (1-100) of an acre. These rocks or islands rose abruptly out of the Bay of San Francisco. Their sides to the extent that they were covered and uncovered by the flow and ebb of the tide varied from ten to twenty-five feet, depending on their steepness. Both rocks were barren, without soil or water, and were of no value for purposes agricultural or mineral. They lay at a distance of about half a mile of the then shore line of that part of the bay upon which the City of San Francisco fronted. Navigable water divided and still divides the lands sued for from the mainland, and surrounded and now surrounds them."

"IV. The lands described in the complaint were not, at the date of the admission of the State of California into the Union, within the boundaries of any valid private or pueblo grant of lands of the Spanish or Mexican governments."

"V. No approved plat of the exterior limits of the City of San Francisco, as provided by the terms of section 5 of the Act of July 1, 1864, 13 Stat. 332, has been filed or rendered to the General Land Office of the United States, or of the State of California. The lands sued for in this action are within such exterior limits."

"VI. On the thirteenth day of January, 1899, the President of the United States, purporting to act in conformity with the Act of July 1, 1864, already referred to, issued the following order:"

"Executive Mansion, January 13, 1899"

" It is hereby ordered that the Mission Island and the small island southeast thereof, designated on the official plat on file in the General Land Office, approved October 12, 1898, as lots 1 and 2 of section 11, township 2 south, range 5 west, Mount Diablo meridian, California, containing, according to the plat, fourteen one-hundredths of an acre and one one-hundredth of an acre, respectively, be, and they are hereby, declared as permanently reserved for naval purposes."

"William McKinley"

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"VII. On the ___ day of March, 1864, the United States surveyor general for the State of California extended the public survey so as to comprehend and include the rocks or islands and the lands in controversy in the present suit."

"VIII. On April 4, 1870, the Governor of the State of California approved an act of the legislature of the state entitled, 'An Act to Provide for the Sale and Conveyance of Certain Submerged Lands in the City and County of San Francisco to Henry B. Tichenor,' which act as printed in the statutes of California for the years 1870, 1871 at 801, is hereby referred to and made part hereof."

"The lands herein described include the lands sued for in this action."

"On the 11th day of July, 1872, the State of California, in conformity with said act, issued its patent for the said lands to said Henry B. Tichenor, purporting to convey the same to him. Said patent was duly recorded in liber 1 of Records of Patents, page 66."

"After execution of the said patent, the said Tichenor executed and delivered a deed of grant, bargain, and sale, dated May 1, 1878, purporting to convey the said lands to the California Dry Dock Company, which thereafter, on the 6th day of June, 1900, executed and delivered to the Mission Rock Company, the defendant, a like deed to the said lands. The last-named company has not, since said date, conveyed to any person or corporation the said lands."

"IX. The California Dry Dock Company, upon going into possession of said lands so conveyed, undertook the improvement of the same by filling in portions of the submerged lands immediately around and contiguous to said islands or rocks with many thousands of tons of rock, thus increasing the available area of said lands to about four acres, upon which extensive warehouses were built by it, and wharves erected for the accommodation of shipping."

"Since the issuance of the state patent hereinbefore referred to, the patentee thereof up to May 1, 1878, the California Dry Dock Company from said time to the 6th day of June, 1900, and the defendant from said last-named date to the present

Page 189 U. S. 395

time have been in continuous and uninterrupted possession of the said lands, using the same and the improvements thereon for commercial purposes, and claiming to be the absolute owner thereof."

The conclusion of the court was that the United States was entitled to the lands sued for, without damages or rents and profits, and judgment was entered accordingly.

The circuit court of appeals reversed the judgment and remanded the cause with instructions

"to enter judgment for the plaintiff for the recovery of the possession of the two islands or rocks mentioned in the record, containing, respectively 14-100 of an acre, and 1-100 of an acre, and designated on the official plat on file in the General Land Office, approved October 12, 1898, as lots 1 and 2 of section 11, township 2 south, range 5 west, Mount Diablo meridian, California, and as respects the remainder of the land sued for, that the plaintiff take nothing."

109 F.7d 3. This writ of error was thereupon sued out. chanrobles.com-red

Page 189 U. S. 403