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
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.
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
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
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
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
"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."
Page 189 U. S. 394
"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
"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
"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
"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
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. 763. This writ of error was thereupon sued out.
Page 189 U. S. 403
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
"It will be observed," as was said by the circuit court of
"that the judgment [of the circuit court] is not limited to the
two rocks or islands embraced in the executive order of January 13,
1899, the one covering 14-100 and the other 1-100 of an acre, but
awards the government the entire tract of 14.69 acres, including
the warehouses and other improvements constructed by the defendant
and its predecessors in interest."
The circuit court of appeals confined the recovery of the
plaintiff to the rocks proper, and awarded the submerged lands to
the defendant. The controversy then is which party has the title to
the latter? The defendant in error is the successor of the rights
and title of the California Dry Dock Company, that company being
grantee of Henry B. Tichenor, who received the patent for the lands
on the 11th of July, 1872, from the State of California, in
pursuance of and in conformity with an act of the legislature of
the state entitled
Page 189 U. S. 404
to Provide for the Sale and Conveyance of Certain Submerged
Lands in the City and County of San Francisco to Henry B. Tichenor.
Stat.California, 1869-70, p. 801."
Had the state the title to convey? The plaintiff in error in
effect contests this, and asserts, besides, a right to the
submerged land as an easement appurtenant to the islands.
The title and dominion which a state acquires to lands under
tidewaters by virtue of her sovereignty received elaborate
consideration, exposition, and illustration in the case of
Shively v. Bowlby, 152 U. S. 1
152 U. S. 58
Prior cases are there collected and quoted, among others,
18 Wall. 65. From the latter as
follows (and the case concerned tidelands in California):
"Although the title to the soil under the tidewaters of the bay
was acquired by the United States by cession from Mexico, equally
with the title to the upland, they held it only in trust for the
future state. Upon the admission of California into the Union upon
equal footing with the original states, absolute property in and
dominion and sovereignty over all soils under the tidewaters within
her limits passed to the state, with the consequent right to
dispose of the title to any part of said soils in such manner as
she might deem proper, subject only to the paramount right of
navigation over the waters, so far as such navigation might be
required by the necessities of commerce with foreign nations or
among the several states, the regulation of which was vested in the
And Mr. Justice Gray said, delivering the opinion of the Court
in Shively v. Bowlby:
"Each state has dealt with the lands under the tidewaters within
its borders according to its own views of justice and policy,
reserving its own control over such lands, or granting rights
therein to individuals or corporations, whether owners of the
adjoining upland or not, as it considered for the best interests of
This right is an attribute of the sovereignty of the state, and
it follows that in the exercise of the right, as said by Mr.
Justice Gray, the state may "dispose of its tidelands free from any
easement of the upland proprietor." The facts of the case
emphasized its doctrine. Shively was the owner of
Page 189 U. S. 405
the upland. Bowlby was the grantee of the State of Oregon of the
tidelands in front of Shively's property. The grant was sustained.
The sovereignty of California and the rights and powers dependent
upon it are as complete as those of other states. How has
California chosen to exercise them? In other words, what is the law
of California as to the title and rights of riparian or littoral
proprietors in the soil below high water mark? Upon the answer to
these questions the present litigation must be determined. The
title papers of the defendant contain an act of the legislature of
the state conveying the lands in controversy in private ownership,
and the history of the state shows that the act was in accordance
with the policy and practice of the state.
The legislature, commencing at the first session after the
admission of the state into the Union, made grants of the tidelands
to municipalities under conditions which contemplated their being
conveyed to and held in private ownership. Among these was the Act
of March 26, 1851, known as the "Beach and Water Lot Act." It was
entitled, "An Act to Provide for the Disposition of Certain
Property of the California." Section 1 provided that
"all the lots of land situated within the following boundaries
according to the survey of the City of San Francisco and the map or
plat of the same now on record in the office of recorder of the
County of San Francisco are known and designated in this act as the
San Francisco Beach and Water Lots -- that is to say, beginning at
etc. Then follows a description by streets, which includes a
portion of the bay. Section 2 grants the use and occupation of the
land for ninety-nine years, and confirms grants of lands sold by
authority of the ayuntamiento, or town or city council, or by any
alcalde of said town or city, and section 4 makes the boundary line
described in the first section a permanent water front of the city.
These acts came up for consideration, and the character of the
title conveyed was defined in Smith v. Morse,
2 Cal. 524;
Eldridge v. Cowell,
4 Cal. 87; Chapin v. Bourne,
8 Cal. 294; Hyman v. Read,
13 Cal. 445; Holladay v.
15 Cal. 635;
Page 189 U. S. 406
Wheeler v. Miller,
16 Cal. 125; San Francisco v.
84 Cal. 124.
These cases all expressed under varying facts the validity of
the title conveyed by the acts of the legislature. They are
reviewed in Pacific Gas Imp. Co. v. Ellert,
64 F. 421.
In Taylor v. Underhill,
40 Cal. 473, Mr. Justice Temple
said, speaking of lands below high water mark: "The state can
probably sell the land, and authorize the purchaser to extend the
water front so as to enable him to build upon this land. . . ."
The decisions cover a period of many years, and have become a
rule of property and the foundation of many titles. As said by
Circuit Judge Ross, delivering the opinion of the circuit court of
"A large and valuable part of the City of San Francisco,
extending from the present waterfront to, in some places,
Montgomery Street, was at the time of and subsequent to the
admission of California into the Union a part of the submerged
lands of the bay, but has since been filled in by the many hundred
grantors under the city and state, who have erected buildings and
improvements thereon at costs running into many millions of
dollars. All of this was done in aid of commerce, in the upbuilding
of a great city upon the bay, and with the encouragement and
consent of the general government."
There is nothing inconsistent with these views in Shirley v.
67 Cal. 545; People v. Gold Run Ditch and Mining
66 Cal. 151, or in Heckman v. Swett,
303. In Shirley v. Bishop,
there was no question of
riparian rights. The defendants attempted, under a franchise from
the City of Benicia, to erect a wharf within three feet of the
plaintiff's wharf, and parallel to it for sixty feet in the
navigable waters of the Straits of Carquinez, and beyond the
waterfront established by an act of the legislature of the state.
The building of the wharf was restrained. The other two cases
expressed the general doctrine that the title of the state to the
lands covered by navigable waters is held in trust for the public.
That doctrine is declared in all of the cases. It has a conspicuous
illustration in the Lake Front Case (Illinois Central Railroad
v. Illinois), 146 U. S. 463
The doctrine and its limitations
Page 189 U. S. 407
are expressed in Heckman v. Swett,
99 Cal. 309, and in
Shively v. Bowlby.
The court said in Heckman v.
"Navigable streams and the shores to ordinary high water mark
are held by the state in trust for the public; but qualified rights
therein may be granted, so far as they are not inconsistent with,
or are in aid of, the principle use, viz.,
purposes of navigation."
In other words, the rights granted must be in aid of commerce,
and it is recognized, as we have seen, in judicial decisions and
established by practical examples that the conveyance by the state
of its title to tidelands, to be held in private ownership, free
from any easement of the upland proprietor, is in aid of commerce,
and therefor in strict performance of the state's trust.
in addition to the other cases, Oakland v.
Oakland Water Front Co.,
118 Cal. 160.
2. A claim was made in the circuit court of appeals by the
plaintiff in error under section 5 of the Act of Congress of July
1, 1864, entitled, "An Act to Expedite the Settlement of Titles to
Lands in the California." 13 Stat. 333. By that section, the title
of the United States to the lands within the corporate limits of
the City of San Francisco was relinquished and granted to the city
"for the uses and purposes" specified in a certain ordinance of the
city called the Van Ness ordinance, which ordinance had been
ratified by the legislature of the state. Answering and disposing
of the contention of the plaintiff in error, the circuit court of
"Those uses and purpose . . . had no relation whatever to the
rocks or islands here in controversy, which were and are far
outside of the pueblo grant of lands claimed by and confirmed to
This is not contested here, but it is urged that
"the order of President McKinley may be read not as a
reservation under that act, but as an appropriation of Mission
Island and the small island southeast thereof, with the shores,
contiguous submerged land, and navigable water appurtenant thereto,
permanently for naval purposes."
There are two answers to the contention. The order of the
President explicitly designates the islands proper, and, besides,
limits the areas appropriated to "14-100 of an acre and 1-100 of an
acre, respectively." At the time the order
Page 189 U. S. 408
was made, the land in controversy had been reclaimed by the
California Dry Dock Company, and upon it were "extensive
warehouses," which had been built by that company, "and wharves
erected for the accommodation of shipping." The property was so
valuable that the plaintiff in error regarded itself damaged by its
withholding in the sum of $250,000, and the rental thereof was
alleged to be $5,000 per annum. It is not conceivable that the
President, by his order, intended to appropriate so valuable a
property without explicit declaration, or to leave the
appropriation to result as "appurtenant" to the rocks.