THE PEOPLE OF THE STATE OF CALIFORNIA ex rel. NELSON PIERCE, NELSON PIERCE and THE DEAD WHALE ASPHALTUM MINING COMPANY v. CHARLES MORRILL, 26 Cal. 336

By the Court, Shafter, J. This suit was brought to set aside a patent issued by the State to the respondent on the 4th of October, 1861.

The lands covered by the patent are described therein as “ one hundred and sixty acres of State tide lands, situated in the County of Santa Barbara.” It appears further from the record that the lands lie immediately upon the sea beach, composed of rock and sand, upon which a heavy surf runs at ordinary high tide; and that the remaining portion of the land is covered by the waters of the ocean to a depth, at ten chains from the shore, sufficient for any class of vessels, and beyond that to a depth of from sixty to one hundred fathoms.

That the average width of that portion between ordinary high and low tide is about one hundred feet, and at ten or twelve feet from ordinary high water mark, without the boundaries of the tract, there is a range of perpendicular cliffs, averaging two hundred and fifty feet in height, running along the whole length of the land, the base of which at the high tides is washed by the surf, and in which, and in and along which said last portions of laud, are large and valuable deposits and beds of asphaltum. No part of the tract is fit for cultivation or capable of pro- . ducing a crop or vegetable growth of any kind.

It appears by one of the recitals in the patent that the land was taken up by the respondent under the Act of April 21, 1858. The prayer of the complaint is to the effect that the patent may be vacated on the ground of fraud, and on the further ground that lands of the character included in the patent have never-been offered for sale by the State. We shall have occasion to discuss only the point last named. 1. The public lands of the State are distinguishable into two general classes : First, those which it holds by virtue of grants from the United States; second, those which it owns by reason of its sovereignty.

The first class includes the grant of five hundred thousand acres, September 4,1841; the grant of the sixteenth and thirty-sixth sections in each township for the use of schools therein; of seventy-two sections for the use of a seminary of learning, and of ten sections for public buildings, March 3, 1853 ; the grant of one hundred and fifty thousand acres for an agricultural college, July 2, 1862, and the grant of all the swamp and overflowed lands in the State belonging to the Government, September 28, 1850.

The second class of lands, belonging to the State by reason of its sovereignty, includes the shore of the sea and of its bays and inlets, in the common law definition of the word “ shore that is, the land usually overflowed by the neap or ordinary tides. (Pollard's Lessee v. Hagan, 4 How. 212; Goodtitle v. Kibbe, 9 How. 471; 13 How. 25; Teschemacher v. Thompson, 18 Cal. 21; Act of 1850 adopting the common law, Wood’s Digest, 168.) In the Act of 1855 (page 189) there is a direct expression of legislative opinion as to the character of the land owned by the State by virtue of her sovereignty.

The Act is entitled “An Act to provide for the sale of the swamp and overflowed lands belonging to this State,” but it is provided in the eighteenth

section that the Act “ shall not apply to or in .any manner affect any lands belonging to this State by virtue of its sovereignty, below the line of ordinary high tide water, or the sea shore and the shores of the harbors on the coast of this State.” In so far as the lands-held by grant are “ swampy or subject to such periodical overflows as to injure or destroy the crops” (see circular of General Land Office, March 8, 1864, Wood’s Digest, p. 746,) the State became the owner of them by reason of the Act of September 28, 1850, commonly known as the “Arkansas Act.” From this examination it appears that the lands included in the defendant’s' patent are lands that became the property of the State by reason of its sovereignty. 2.

Hone of the lands belonging to the, State by reason of her sovereignty were offered for sale by the Act of 1855, as we have already seen.- This Act was repealed by the Act of April 21, 1858. (Acts 1858, p. 198.) That Act, by its title provides for the sale of “ swamp and overflowed lands,” but the 'first

section not only describes the lands offered for sale as “ swampy and overflowed,” but indicates their character still more precisely by referring to them as lands comprehended in the grant by Congress of September 28, 1850. By

section thirteen all swamp and overflowed lands, situated in certain localities named, are permanently excepted out of the operation of the Act, and in so far as the State’s swamp and overflowed land may-be made up of “ salt marsh,” a right to preempt is reserved for six months to the owners of the adjoining arable land.

The result is that nothing was offered for sale by the Act of 1858, except the lands falling within the description of the Arkansas grant of 1850 ; and as the land included in the- defendant’s patent is not within that description, it follows that the groundwork of defendant’s purchase must be sought for and found, if at all, in subsequent legislation. It is urged, however, on the part of the respondent, that it appears from the proviso to the first

section of the Act of 1858 that the State by that Act offered for sale its lands situate below ordinary high tide. The proviso is as follows : “ Provided, that if upon the survey of such lands any portion thereof shall be found to be lands belonging to the State by right of her sovereignty, the moneys arising therefrom shall be paid into the Treasury of the State as other State revenues.” This proviso is to be read in the light of the subject matter.

It is well known that that portion of the swamp lands of the State known as “ salt marsh” are threaded by channels of greater or less width within the ebb and flow of the tide, which channels are of little or no use either in the way of fishing or navigation. They are but extensions of the “ mud flats,” and like them belong to the State by right of its sovereignty.

While the principal purpose of the Act was to sell the swamp and overflowed lands,' which the State held by grant, still it was considered that that purpose could be best subserved -by allowing purchasers of salt marsh to include such channels, when reasonably necessary, within their surveys. To that extent and under such or kindred circumstances it is true that the lands belonging to the State by reason of her sovereignty were offered for sale by the Act of 1858. But none of these circumstances connect themselves with the lands included in the defendant’s patent.

The words “ if any portion thereof shall be found,” etc., show very clearly that the Legislature considered the proviso as but a relaxation of the general rule in favor of a case which it regarded as exceptional. 3. The Act of April, 1859, is amendatory of the Act of 1858, but we do not consider that it enlarges the scope of the offer to sell contained in that Act.

It applies to “ persons who wish to purchase under this Act,” (the Act of 1858) to land that is “'swamp or swampy for the greater part,” or “ that is subject to inundation at the planting, growing or harvesting seasons, so as to endanger or destroy the crops, taking the average seasons for a reasonable number of years prior to the year 1850 as a rulé of determination.” If the Legislature had intended to offer all the lands for sale owned by the State by virtue of its sovereignty, it is not to be supposed that a description so labored and so inapposite would have been adopted.

The lands of the defendant’s patent are neither swamp or swampy, nor is there any sensible connection between them and the “ seasons” named, nor between them and “crops;” and the “average” stated might very well have been spared in view of the fact that a state of “ inundation” recurring with the regularity of the tides is the normal condition of those lands. But reference is also made to the second proviso of the fourth

section of the Act of 1859, and it is claimed that it appears from that proviso that the Legislature intended to offer for sale indiscriminately all the lands which the State owned by reason of its sovereignty.

The proviso is as follows : “ Provided, further, that the said claim shall not exceed six hundred and forty acres, or measure more than one half mile front, by legal subdivision, on any bay, lake, or navigable stream.” The lands included in the patent have in fact no relation to any bay or lake or navigable stream, and, therefore, if they should be considered as without the Act, the just operation of the proviso would be in no manner interfered with. The swamp and overflowed lands offered for sale and claimed by grant, border to a great extent on bays, lakes or navigable streams, as matter of fact.

They extend down to the line of ordinary high water, and the lands claimed by the State by right of sovereignty extend up to the same line, and the only purpose of the proviso was to limit the number of acres which the citizen could buy landward from that line, and to limit also the extent of the frontage upon it. A conveyance by the State bounding upon the sea, or upon a bay, or navigable stream, would extend to high water mark. The proviso is then entirely reconcilable with the views which we entertain as to the real purpose of the Act. » 4.

The Act of May 13,1861, (Acts of 1861, p. 355,) entitled “An Act to provide for the reclamation and segregation of swamp and overflowed land, and salt marsh and tide lands donated to this State by Act of Congress,” has no bearing upon the question of the validity of the defendant’s purchase, for the only purchases it provides for not only lie in the future, but are to .be made after the segregation contemplated, by the Act (Sections 19, 27); audit may be added that the record shows that defendant did not purchase with any reference to that Act, nor does the argument of counsel claim that he did. 5.

The only question remaining to be considered is, whether the purchase of defendant was authorized by the Act of May 14, 1861. (Acts 1861, p. 363.) The Act ratifies a class of purchases previously made, and authorizes purchases thereafter ; but as the purchase of the defendant was not only consummated but initiated after the passage of the Act, it does not fall within the class of purchases which the Act was intended to “ ratify.” The Act is entitled “An Act to provide for the sale of the marsh and tide lands of this State,” and is as follows: “ The sales of all marsh and tide lands belonging to this State that have been made in accordance with the provisions of any of the Acts of the Legislature providing for the sale of the swamp and overflowed lands belonging to this State are hereby ratified and confirmed, and any of said marsh and tide lands that remain unsold may be purchased under the provisions of the laws now in force providing for the sale of the swamp and overflowed lands of this State, and all moneys derived from the sale of such lands shall be paid into the State swamp land fund, to be used for the reclamation of the swamp and overflowed lands; provided, no marsh or tide lands located within five miles of the City of San Francisco or of the City of Oakland, or within one mile and one half of the State Prison grounds at Point San Quentin, shall be sold or purchased by authority of this Act; and, provided, further, that no sales of lands,.either tide or marsh, excepting Alcalde grants, which are hereby ratified and confirmed, within five miles of said cities, or within one mile and one half of the State Prison grounds aforesaid, shall be confirmed by this Act.” For all the purposes of the present discussion we shall assume that the word “ tide” is used in contradistinction to the word “marsh,” and that it is applicable to all the lands which the State owns by reason of its sovereignty, lying below ordinary high water mark, unless it appears that the meaning of the word, or rather the words, “ tide lands,” is limited to lands of that character that are capable of reclamation.

It is to be noticed, in the first place, that the purchase moneys of the lands intended to be sold are, by the Act, to be paid into the “ State swamp land fund,” and are “ to be used for the reclamation of the swamp and overflowed lands.” The grant to this State of the swamp and overflowed lands contained a provision that the proceeds of sales should be devoted by the State, so far as should be necessary, to their reclamation; and the policy of the State, as shown by the general current of its legislation, has been to make those lands pay for their own reclamation; and so rigorously was that policy adhered to in 1858 that by the Act of that year, if any land claimed by the State by right of sovereignty “ should be found to be included in a survey of swamp and overflowed lands,” it was required that the moneys arising therefrom should be paid into the Treasury of the State as other State revenues.

If the Legislature intended by the Act of May 14, 1861, to secure the reclamation of the public lands, except by sales of such as were themselves reclaimable, then it must be held to have abandoned a policy not only sensible in itself, but one which had become traditional also. But, further, the Act in question requires that purchases “ should be under the provisions of the laws now in force, providing for the sale of swamp and overflowed lands of this State.” The Acts then in force were the Act of 1858, as amended in 1859, and the Act of May 31, 1861.

The former Act was passed for the purpose of “ reclamation,” as stated in the title, and all purchase moneys are required to be credited, when paid in, to the swamp land fund, to be appropriated to the work of reclamation as the Legislature shall thereafter direct. The Act of 1859 is but amendatory of the Act of 1858, and therefore in effect bears its title, and it does not vary the disposition to be made of the purchase moneys.

Though the Act of 1859 presents a form of affidavit differing in some respects from that prescribed by the Act that preceded it, yet in our judgment the Acts agree in this, that the lands to which they both relate are lands susceptible of reclamation; and as to the Act of May 13, 1861, “reclamation” is one of the objects avowed in its title, and one to which its provisions steadily refer. From the foregoing examination it appears, then, that one of the leading “provisions” subject to which tide lands were offered for sale, under the Act of May 14, 1861, required that they should be reclaimable in their character.

It is no misuse of terms to hold that the very subject matter of an enactment is within its “provisions,” and it is difficult to see how the respondent could purchase a kind of land “under” the “provisions,” referred to in the Act of 1861, to which lands those provisions had no just application. It is at least indisputable that the provisions under which lands are to be bought by the Act in question include all matters of procedure, nor can it be doubted that the affidavit required by the Act of 1859 is a part of the procedure.

But the nature of the facts to be set forth in the affidavit fix the character of the land to which the affidavit was intended to apply, and the land to which the affidavit was intended to apply must be the land, and the only land, which the Legislature intended should be sold.

It may be true, as the counsel of the respondent contends, that one of the purposes of the affidavit (and counsel insists that it was the sole purpose) was to distinguish between the lower lands and upland; but to our minds it is equally clear that the purpose was to distinguish also between tide lands that were reclaimable on the one hand and those that were irreclaimable on the other.

The “ facts” of the affidavit are to be regarded as tests of character, and while the words “swamp” and “ swampy,” and the reference to “ planting, growing or harvesting seasons,” etc., and to “ crops,” very clearly exclude uplands from the offer to sell, they are in our judgment no less efficient to exclude lands of the quality covered by the respondent’s patent. 7. As to the demurrer for misjoinder of parties plaintiff.

It is not denied that the State is interested in the principal purpose of the bill—the cancellation of the respondent’s patent; and, as owner of the land, it could properly claim an injunction restraining the defendant from removing the asphaltum. The asphaltum company claims an interest in the lands under the mining laws of this State; but over and beyond that, it is a party to an action of replevin that cannot be determined upon its merits so long as the respondent’s patent shall be outstanding; and Pierce is interested in the cancellation of the patent for a similar reason.

While it is true that there is, in stiictness, no joint interest vested in the plaintiffs adverse to the respondent, still they all have a common interest in annulling the patent—and that is enough. (Story’s Eq. Pl. §27Sa, 279, 279a; Fellows v. Fellows, 4 Cow. 682; Owen v. Frink et al. 24 Cal. 171.) But admitting that the plaintiffs have a common interest to the intent of cancellation, it is still insisted that the people have no interest in the temporary inj unction granted in the first instance, except in so far as it restrains the defendant from excavating and removing the asphaltum.

That Pierce and the company having no interests in the land, nor in the asphaltum deposits, are interested in the injunction only in so far as it restrains the prosecution of the personal actions before referred to, pending this litigation. Assuming that there is a misjoinder in this aspect of the complaint, still there being no misjoinder of parties so far as the question of the validity of the patent and the relief of cancellation is concerned, the demurrer should be overruled on the ground that it is too general.

If a demurrer is too general, that is, if it covers, or is applied to the whole bill, when it is good as to part only it will be overruled; for a demurrer cannot be good as to a part which it covers and bad as to the rest, and therefore it must stand or fall together. Bat again, the objection of multifariousness, comprehending to some extent the case of misjoinder of parties and causes, is in many cases a matter of discretion, and no general rule can be laid down on the subject. (Story’s Eq.

Pl. §284a, 533.) As matter of discretion, we consider that in this case there is no misjoinder of parties or of causes of actions. The parties are all interested in the principal question raised by the complaint; the issues tendered are simple and foreshadow no embarrassment to a convenient and orderly trial; and by the joinder objected to a multiplicity of suits has been avoided. We add further, that no question upon the demurrer is properly before us, but as the parties have argued it we have concluded to give our opinion upon it. The order dissolving the injunction is reversed. Mr.

Justice Sawyer expressed no opinion.