# California v. Southern Pacific Company (157 U.S. 229)

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## Dissenting Opinion

    Harlan
United States Supreme Court
157 U.S. 229
California v. Southern Pacific Company
The state of California, by its attorney general, by leave of court, exhibited its bill in equity in this court against the Southern Pacific Company, a corporation and citizen of Kentucky, on November 6, 1893; and an amended bill of complaint was filed on like leave, and with the consent of the defendant, March 5, 1894. The amended bill averred that the state of California was admitted into the Union under an act of congress approved September 9, 1850, with certain specified boundaries, and it was alleged that said boundaries embraced all the soil of the beds of the Bay of San Francisco, and all the arms of that bay, including what was known as 'San Antonio Creek,' sometimes called 'San Antonio Estuary'; that the state, upon its admission into the Union, acquired and continued to retain jurisdiction over the soil of the beds of said bay, including San Antonio creek, and absolute title to the same, subject only to the right of the United States of supervision over the navigable waters of the bay so far as necessary in exercising its right to regulate commerce with foreign nations and among the several states; and that the state, thus possessing the sovereign power over the Bay of San Francisco and the San Antonio creek, and the beds thereof, had the right to protect and defend the same from infringement, and to sue for relief in respect of encroachment or infringement of its sovereign or proprietary rights therein.
The bill further alleged that certain lands, described by metes and bounds, and designated as tracts numbered first, second, third, fourth, fifth, sixth, and seventh, were situated in that part of the Bay of San Francisco which, together with San Antonio creek, constituted the harbor of the city of Oakland, in the county of Alameda; that the city of Oakland was situated upon that part of the bay which included said lands, and upon San Antonio creek; that all the lands numbered first, second, third, fourth, fifth, and sixth were situated within the limits of the city of Oakland, and were formerly situated within the limits of what was the town of Oakland; that that portion of the tract of land numbered seventh, which was situated within the limits of the city of Oakland, was situated within the limits of the town of Oakland; that the lands, at the time the state was admitted into the Union, extended, and now continued to extend (except so far as the defendant, or parties under whom it claimed, had filled in portions of said land), to a considerable distance under the navigable waters of the Bay of San Francisco and of San Antonio creek, to ship channel in said navigable waters, and to a depth, at ordinary low tide, of 24 feet; that a large portion of the lands had always been constantly covered by said waters; that the residue of the lands had at all times been covered with navigable waters at ordinary high tide, except so far as the defendant and those under whom it claimed had filled in the same; that San Antonio creek was, and always had been, navigable, and the government had been and was expending large sums of money in improving the navigation of the creek and bay, as a harbor for the city of Oakland; and that the Bay of San Francisco was a tidal bay, and a large body of navigable water, connected with the Pacific Ocean.
It was further averred that he city of Oakland contained a population exceeding 60,000 inhabitants, which was constantly increasing; that said city fronted upon the tidal waters of the bay and of San Antonio creek, and the lands embraced a large portion of the shore of the bay and of the shores of the creek within the city, and embraced a large portion of the water front of the city, upon which landings, wharves, docks, piers, and other structures for the landing, loading, and unloading of vessels at said city could be constructed and maintained; that a large part of the water front of the lands was now required for the erection of wharves, docks, and piers for the use of vessels landing at the city, and the necessity for the use of additional portions of these shores and lands for the purpose aforesaid was constantly on the increase; that there were large portions of the lands and shores that were required for the termini of railroads hereafter seeking to enter the city of Oakland, and to obtain access to said navigable waters for the purpose of connecting with vessels navigating those waters, and of bringing ship and car together. The bill also stated that the city of San Francisco contained a population of 350,000, and was the largest city on the eastern side of the Pacific Ocean, lying across the Bay of San Francisco, and opposite the city of Oakland, about a distance of four miles; that the interest of the cities of San Francisco and Oakland and the general public, and the convenience and necessities of commerce, both foreign and domestic, required that the control of the state over these lands, and its ownership thereof, should be enforced and maintained; that all the commodities and passengers transported between the city of San Francisco and other parts of California and the eastern and other portions of the United States were carried over these lands; that they were situated so as to practically control the harbor of the city of Oakland, and especially that part thereof used in forming a connection between the city of Oakland, by boats on the Bay of San Francisco and of San Antonio creek, with railroads extending eastward; and that the exclusive use and occupation of such land created a monopoly of any part thereof, and that the entry upon and use and occupation of the public domain to other parts of the state of California and the eastern portions of the United States.
The bill further averred that defendant claimed, as owner in fee, title and right adverse to the state in and to all the tracts of land described and numbered in the bill, and without the consent of the state, and without any right whatever, defendant and those under whom it claimed had taken possession of portions of said tracts numbered 1 and 5, and had filled in parts thereof, and had driven piles in other parts thereof, and had placed on said portions of land railroad tracks and buildings which greatly obstructed the navigation of said waters; that all of said tracks, buildings, and other structures were now being unlawfully maintainel by defendant under its claim; that defendant claimed and asserted exclusive control over the lands described in the bill, and prohibited all vessels, excepting its own, and such vessels as carried freight from the railroad of defendant, from landing upon any part of the shore embraced by these lands, that defendant denied the right of the state to exercise any control over any of these lands, or to authorize the construction of wharves or landings of any kind upon any part of them, or to regulate any wharf built upon said premises, and to collect tolls or wharfage for the use of any part of said premises: that but a small portion of these tracts of land were in the actual occupation or use of defendant, and no part of the tracts numbered 3, 6, and 7 was being occupied or used by defendant.
The bill alleged that the ground on which defendant based its claim was that under and by virtue of an act of the legislature of California entitled 'An act to incorporate the town of Oakland and to provide for the constru tion of wharves thereat,' approved May 4, 1852 (a copy of which act was annexed to the amended bill, and marked 'Exhibit A'), the state granted to the town of Oakland the title to the whole water front of that town,-that is to say, all the land lying within its corporate limits between high tide and ship channel, including the lands described in the bill; that the town of Oakland, under said act, had authority to grant and convey, and did grant and convey, by conveyance absolute and in fee, in 1852, to Horace W. Carpentier, all of the said water front of the town of Oakland; that, by mesne conveyances from him, defendant had become and was the owner in fee simple of the tracts numbered 2 and 4; and that, by leases made and delivered to it by persons claiming in fee under and by virtue of mesne conveyances from Carpentier, defendant had acquired and now held an estate for the term of 99 years from the 17th of February, 1885, in all the remaining lands and premises thereinbefore described. And it was further averred that the state did not by the act approved May 4, 1852, or otherwise, convey the water front, or any part thereof, to the town of Oakland, nor place the control of the same in the town, nor divest the state of its control over the water front, nor had the legislature of the state any power or authority to grant the lands to the town or any one, or to divest the state of its control thereof, and that the town did not grant or convey to Carpentier, and had no power or authority under the act of May 4, 1852, or otherwise, to grant or convey to him, any part of the water front of the town of Oakland, and that the said lands, at all times since the creation of the state of California, had been, and now were, held in trust by the state for the benefit of the state, and at all times had been, and now were, incapable of alienation to any person, or of being reduced to private ownership.
The bill then proceeded to set forth a number of other claims of defendant in and to the premises adverse to the title of the state, such as decrees to quiet title, conveyances under judgment sales, and sales for taxes, all of which were alleged, on various grounds, to be of no force or effect, as against the state; and it was averred that defendant had not, and never had, any estate, right, title, or interest in or to the lands, or premises, or any in or to the lands or premises, or any part thereof, or any right to the possession of any part thereof, and that the entry upon and use and occupation of the public domain, as set forth, was a purpresture and a public nuisance, and interfered with the control and development of the harbor of Oakland.
It was also alleged that the act entitled 'An act to incorporate the town of Oakland, and to provide for the construction of wharves thereat,' approved May 4, 1852, was repealed by an act entitled 'An act to incorporate the city of Oakland,' passed March 25, 1854.
The prayer of the amended bill was that 'said defendant, the Southern Pacific Company, be required to set forth in its answer the nature of its claim or claims, and that all adverse claims of said defendant to said premises be determined by a decree of this honorable court, and that in and by said decree it be adjudged that your orator is the owner of the whole of said premises, and has lawful right to control the same, and that said defendant, Southern Pacific Company, has no estate or interest whatever in or to said premises, as against your orator, and no right to the possession of any part thereof, and that the clouds and doubts cast thereby on the title of your orator be removed; that the structures so as aforesaid unlawfully placed upon said premises by said defendant be abated, and that the writ of injunction issue out of this honorable court, and under the seal thereof, commanding the removal thereof, and that said defendant, and all persons claiming or to claim by or under it, be perpetually enjoined, restrained, and debarred from asserting any claim of, interest in, or title to or control over said lands, or any p rt thereof, adverse to your orator; that your orator be declared to have the sole and exclusive right to develop and control the said harbor of said city of Oakland, and to dispose of such rights at its pleasure, for the interests of the public, and that it be adjudged by said decree that said town of Oakland did not grant or convey, and had no authority to grant or convey, to said Carpentier, all the water front of said town, to wit, all the land lying within the corporate limits of said town, situated between ordinary high tide and ship channel, or any part thereof; and that by said decree it be further adjudged that the state of California did not and could not grant or convey the said water front, or any part thereof, to the said town of Oakland, and that any control over said water front, if any, that was conferred on said town of Oakland by said act approved May 4, 1852, was revoked and annulled by said act passed March 25, 1854.'
On March 6, 1894, the defendant filed its answer, claiming title in fee simple to tracts numbered 3 and 4; a leasehold estate, under the Central Pacific Railroad Company, in tracts numbered 1, 2, 6, and 7; and, under the South Pacific Coast Railroad Company, in tract numbered 5. The answer admitted that by virtue of its sovereignty the state of California became the owner and proprietor of the beds of the Bay of San Francisco and San Antonio Estuary, but averred that by the grant thereinafter set forth the state lost the proprietary right and title over the described property situated between high-water mark and ship channel in the city of Oakland. It admitted that the lands were ordinarily below the line of ordinary high tide, but denied that they all continued to lie below that line, and averred that a portion of the land which formerly formed a part of the bay and estuary was now above the hight tide line, having been filled in and reclaimed by defendant and its grantors and lessors; that at least one-half of tracts 1, 5, 6, and 7, and nearly all of tracts 2, 3, and 4, were entirely bare at low tide. It denied that any portion of the lands claimed by defendant interfered with the harbor of Oakland or of the city of San Francisco, or hindered or obstructed commerce, or infringed upon or obstructed the practicable navigable waters constituting the harbors of either of those cities, and averred that all the lands described in the bill, except parcel numbered 6, were occupied by wharves, warehouses, depots, and other structures necessary for the convenience of commerce and navigation, and that all of said structures were used in the interest of the same, and were lawfully erected and maintained.
The answer admitted that the defendant claimed the title and right adverse to the state in and to all the premises particularly described, except that portion which was included within the harbor lines of the creek of San Antonio, as established by authority of the United States, and that defendant asserted exclusive control over all of the lands except those outside of the pier-head lines of the harbor, but denied that it prohibited all vessels except its own from landing, or excluded any person from using said wharves, although it admitted that it would prohibit any one from using any part of the shores or buildings without defendant's consent, or unless compensation was made therefor.
The answer denied the right of the state to exercise any control over any of the lands not covered by navigable waters, except governmental, and, while admitting that the state had the right to regulate wharves built upon said premises, denied that it had any power to collect wharfage or dockage from the use of any part thereof. The answer denied that the only ground on which defendant based its claim was that by virtue of the act of the legislature of May 4, 1852, the state granted to the town of Oakland the title to the whole of the water front of that town, that is to say, of the land lying within the then corporate limits of the town of Oakland, situated between high tide and ship channel, and which included the lands hereinbefore described,-but admitted that it was one of the grounds, and insisted that by said act the town of Oakland was vested with the absolute control and ownership of the water front, with power to dispose of and convey the same, absolutely and in fee simple, to any person, and that thereby the state divested itself of all control and supervision over the land as proprietor thereof, and could only control the same politically. And defendant claimed that the town of Oakland, under said act, had lawful authority to grant and convey, and had granted and conveyed, both by ordinances and by a deed of conveyance, the land absolutely, in fee, to H. W. Carpentier, in 1852, and that, by mesne conveyances from said Carpentier, defendant became and was the owner in fee simple of the tracts of land described in the bill, and numbered third and fourth; that by mesne conveyances from said Carpentier the Central Pacific Railroad Company became and was the owner in fee simple of the tracts of land described as first, second, sixth, and seventh, and that defendant had a leasehold interest therein; that the South Pacific Coast Railway Company, by mesne conveyances from said Carpentier, became and was the owner in fee simple of the tract of land numbered fifth in said amended bill of complaint; and that the defendant had a leasehold interest therein. The answer set forth minutely and in detail all the grounds on which defendant rested its claim, and which need not be repeated here.
Replication was filed March 12, 1894, and on the same day the court denied a motion of the city of Oakland for leave to be joined by intervention as co-complainant in the bill, but granted leave to the city to file briefs, accompanied by such documents and maps, illustrative of its alleged title, as it might be advised. On April 30, 1894, an order was made by the court in reference to depositions theretofore placed in the custody of the clerk of the court, together with maps and exhibits, and appointing a commissioner to take testimony herein; instructing him to take and return such testimony as might be offered by either of the parties, and to receive and return such documents and maps illustrative of the alleged title of the city of Oakland as it might deem proper to offer, pursuant to the order of March 12, 1894.
The depositions and exhibits referred to in this order were thereupon opened and filed, and subsequently the evidence adduced before the commissioner, and transmitted with his report to the court. This embraced many depositions on both sides, and a large number of maps, papers, and documents. The cause was heard upon pleadings and proofs, December 19, 20, and 21, 1894.
The record is voluminous, but only so much of the matters disclosed as will tend to explain the nature and scope of the case, chiefly as presented by defendant, need be stated.
The legislature of California, on May 4, 1852, passed an act entitled 'An act to incorporate the town of Oakland and to provide for the construction of wharves thereat'; the boundaries of the town embracing some 7,840 acres of land between high tide and ship channel, 1,549 acres of upland, and 493 acres of salt marsh. The corporate duties and powers of the town were vested in a board of trustees, including the usual powers of such municipalities in regard to streets, roads, bridges, wharves, ferries, docks, piers, etc.; and the act also provided that, 'with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship channel, are hereby granted and released to said town: provided, that said lands shall be retained by said town as common property, or disposed of for the purposes aforesaid.' The trustees were chosen as prescribed by the act in May, 1852, and organized as a board thereunder. On the 18th of May the board of trustees passed an ordinance entitled 'An ordinance for the disposal of the water front belonging to the town of Oakland, and to provide for the constru tion of wharves,' which was engrossed and signed by the president and clerk of the board on May 27, 1852. This ordinance granted, in its first section, to Horace W. Carpentier and his legal representatives, for the period of 37 years, the exclusive right and privilege of constructing wharves, piers, and docks at any points within the corporate limits of the town, with the right of collecting wharfage and dockage at such rates as he might deem reasonable, subject to a proviso for the erection of these wharves within a specified time and at particular locations, and the payment to the town of a certain percentage of the receipts for wharfage, and, by its second section, granted to him and to his assigns or legal representatives, with the view, as expressed therein, to more speedily carry out the intentions and purposes of the act of incorporation, and in consideration of the premises, and of a contract on Carpentier's part to build for the town a public schoolhouse, 'the water front of said town, that is to say, all the land lying within the limits of the town of Oakland between high tide and ship channel, as described in said act, together with all the right, title and interest of the town of Oakland therein'; and by the third section the president of the board of trustees was 'charged with the duty of executing, on behalf of the town Oakland, a grant and conveyance in accordance with the provisions of this ordinance.' On May 31, 1852, the president or the board executed and delivered to Carpentier a deed of conveyance, which declared that the president, in conformity to the provisions of the ordinance of May 27, 1852, and in virtue of the authority vested in him by the constitution and laws of California, and especially by the act of May 4, 1852, in his official capacity 'as said president, and in view of the public convenience,' granted to Carpentier the exclusive right and privilege of constructing wharves, etc., with the right of collecting wharfage and dockage for 37 years; and 'in consideration of the covenants hereinafter mentioned, and of five dollars paid to the town,' in obedience to the ordinance aforesaid, and by virtue of the authority as aforesaid vested in him as president of the borad of trustees, and by virtue of said office, sold, transferred, granted, and released to Carpentier and his legal representatives 'all the right, title, and interest of the said town of Oakland in and to the water front of said town, that is to say, all the land lying within the now corporate limits of the town of Oakland, and situated between high tide and ship channel,-as granted to said town by, and as described in, said above-entitled act,' provided that Carpentier or his legal representatives should construct certain wharves within times specified, and also that 2 per cent. of the receipts for wharfage should be payable to the town of Oakland. Upon this deed an agreement by Carpentier, under seal, was indorsed, bearing the same date, covenanting and agreeing to carry out the objects and purposes of the grant and conveyance, to construct the wharves as provided for in the deed, and to build for the town a public schoolhouse, agreeably to the terms of an earlier obligation in reference thereto. This conveyance and contract were filed for record January 12, 1853. Thereupon, Carpentier built one of the wharves, upon the completion of which the board of trustees, on January 1, 1853, passed a further ordinance, entitled 'An ordinance to approve the wharf at the foot of Main street, and to extend the time for the construction of the other wharves,' which declared that the wharf at the foot of Main street had been built and completed to the entire satisfaction of the board of trustees, and according to the terms and within the time specified in the ordinance of May 18, 1852, accepted the same, and extended the time for the completion of the other two wharves. Carpentier constructed a second wharf, and built and delivered to the town a public schoolhouse, conformably to his contract; and thereafter, and on ugust 27, 1853, the town passed another ordinance, ratifying and confirming the original ordinance of May 18, 27, 1852, and granting, selling, and conveying the water front of the town of Oakland 'unto the said Carpentier and his legal representatives, in fee simple forever, with the right to erect wharves, piers, docks and buildings at any and all points thereon, not obstructing navigation, and to freely use and occupy the lands herein conveyed.' This ordinance approved of the second wharf as built within the time and in accordance with the provisions of the preceding ordinances, and accepted and approved of the schoolhouse as completed to the satisfaction of the board, and according to the terms of the ordinance and contract, and provided that the third wharf might be built at the foot of another street than that originally mentioned, which third wharf, the evidence tended to show, was subsequently constructed.
On March 25, 1854, an act of the legislature of California was approved, entitled 'An act to incorporate the city of Oakland,' which provided in its first section that 'the corporation or body corporate now existing and known as the town of Oakland. shall remain and continue to be a body politic and corporate by the name of the city of Oakland,' and that 'the boundaries of said city shall be the same as the boundaries of the present town of Oakland.' Section 12 of this act provided: 'The corporation created by this act shall succeed to all the legal and equitable rights, claims, and privileges, and be subject to all the legal liabilities and obligations made bona fide of the town of Oakland; and the common council shall have full power to maintain suits in the proper courts to recover any right, or interest, or property which may have accrued to the town of Oakland.' Section 19 was as follows: 'The act entitled 'An act to incorporate the town of Oakland, and to provide for the construction of wharves thereat,' is hereby repealed; and any ordinance of said 'town of Oakland,' providing for the levying and collection of taxes, and directing or authorizing the expenditure of money, or the assumption of any debts or liabilities, are hereby suspended until the organization of the government created by this act.' By the fifth section of an act of the legislature of California approved May 14, 1861, 'amendatory and supplementary to' the act of March 25, 1854, it was provided, 'The common council of the city of Oakland is hereby authorized and empowered to ratify and confirm any ordinance or resolution of the board of trustees of the late town of Oakland.' On May 15, 1861, the legislature of the state passed another act to amend the act of March 25, 1854, reincorporating the city of Oakland, the twelfth section of which read as follows: 'The corporation created by this act shall succeed to all the legal and equitable rights, claims, and privileges, and be subject to all the legal or equitable liabilities and obligations of the town of Oakland; and the ordinances of the board of trustees of said town are hereby ratified and confirmed, and the common council shall have power to maintain suits in the proper courts to recover any right or interest or property which may have accrued to the town of Oakland.'
On March 21, 1868, the legislature of California passed an act authorizing and empowering the council of the city of Oakland, the mayor concurring, 'to compromise, settle and adjust any and all claims, demands, controversies and causes of action in which the said city is interested.' On March 27, 1868, the Oakland Water-Front Company was organized under an act of the legislature of April 14, 1853, having the objects, among others, 'to acquire, build, construct, own, hold, manage, use and control wharves, docks, basins, dry docks, piers and warehouses in the city of Oakland and in the vicinity thereof in the state of California, and to lease, sell, convey, grant, mortgage, hypothecate, alienate or otherwise dispose of the same.' The council of the city of Oakland on April 1, 1868, passed an ordinance 'for the settle ent of controversies and disputes concerning the water front of the city of Oakland, the franchises thereof and other matters relating thereto,' which ordained that 'the claims, demands, controversies, disputes, litigations, and causes of action, heretofore existing between the city of Oakland on the one part, and Horace W. Carpentier and his assigns on the other part, relating to the force validity and effect of the ordinance of May 18, 27, 1852, and of the conveyance to Carpentier by the president of the board of trustees, dated May 31, 1852; and of the ordinance of the town of January 1, 1853; and of the ordinance of August 27, 1853, are hereby compromised, settled, and adjusted, and the said above mentioned ordinances and conveyances are made valid, binding, and ratified and confirmed, and all disputes, litigations, controversies, and claims in and to the franchises and property described in said ordinances and deed of conveyance, and every part thereof are abandoned and released by the said city of Oakland to the said Carpentier and his assigns, upon the following conditions, to wit, that the said Carpentier and his assigns shall convey by proper and sufficient deeds of conveyance all the property and franchises mentioned and described in said ordinances and deeds of conveyance hereinbefore referred to, to the Oakland Water Front Company, to be used and applied in accordance with the terms, conditions, stipulations, and agreement contained in certain contracts between the said Oakland Water Front Company and the Western Pacific Railroad Company and other parties, bearing even date herewith, with the exceptions in the said agreement specified.
On April 2, 1868, the council passed another ordinance entitled 'An ordinance finally settling, adjusting and compromising the question of the water front,' reciting that it appearing that all the terms and conditions of the previous ordinances had been fully satisfied and complied with by Carpentier and his assigns, all the ordinances and deed therein mentioned and described were finally ratified and confirmed, and all disputes, controversies, causes of action, between the city and Carpentier and his assigns, were released to the said Carpentier and his assigns, 'provided, that nothing herein contained shall release the right of the city of Oakland to the reversion of the property, franchises and rights released, as provided in the contract between the Western Pacific Railroad Company and the Oakland Water Front Company, in case said city of Oakland shall become entitled to the same under said contract.' The contracts mentioned in the first ordinance were a contract between the Oakland Water-Front Company, the Western Pacific Railroad Company, the city of Oakland. Horace W. Carpentier, John B. Felton, and Leland Stanford, not in fact executed by the city of Oakland; and a contract between the Western Pacific Railroad Company, Stanford, and the Oakland Water-Front Company. The first contract recited the deed, dated March 31, 1863, acknowledged April 1, 1868, of Horace W. Carpentier to the Oakland Water-Front Company for the water-front property, and that 'the said deed was executed to the Oakland Water-Front Company, upon the express trusts, and subject to the covenants and agreements, herein set forth.' By this contract it was provided that the Western Pacific Railroad Company should select from and locate upon the premises described in the deed from Horace W. Carpentier to the Oakland Water-Front Company 500 acres of land, in one or two parcels; that it should have frontage on ship channel not exceeding one-half mile in legth,-and also select and locate within said time, over the remainder of said premises, certain right of way. And the Oakland Water-Front Compoany, on its part, covenanted that it would, at any time after such selection and location, upon demand, convey by proper conveyances the said 500 acres, and the right of way aforesaid, and that such conveyance or conveyances should contain a covenant that if the parcels, or either of them, § ould be located out to a westerly water front of 24 feet of depth of water at low tide, no lands should be sold westerly therefrom, and no obstruction or impediment should ever be placed or put in front or westerly of the same, or anything be done to prevent the free and unobstructed approach of vessels to said parcels. It was further covenanted on the part of the Oakland Water-Front Company that it would, upon demand, convey to the city of Oakland a certain described part of the premises, and that it would, within a reasonable time, designate and dedicate as a navigable water front for public use the channel of San Antonio creek from ship channel to the town of San Antonio, stating the width. In the contract between the Western Pacific Railroad Company, Stanford, and the Oakland Water-Front Company, the Western Pacific Railroad Company covenanted that, upon conveyance being made to it, so as to vest a good title in fee simple in said company, and upon the performance and execution by the municipal authorities of the city of Oakland of all instruments, ordinances, acts, and proceedings necessary to perfect, complete, and make good the title to said premises described in said deed from said Carpentier to said Oakland Water-Front Company, within a reasonable time, and with reasonable dispatch, it would proceed and construct, or purchase and complete, a railroad connection from its main line to the said parcels thus selected by it, or one of them, and would, within said time, complete such connecting railroad thereto, and would construct on said parcels, or one of them, the necessary buildings and structures for a passenger and freight depot, and would expend, within three years, not less than $500,000 upon said premises, and, if it should fail or neglect or refuse to do the same with in three years, that the 500 acres of land thus conveyed should be forfeited, and should be conveyed by the company to the city of Oakland.
By deed dated March 31, 1868, and acknowledged April 1, 1868, Horace W. Carpentier conveyed to the Oakland Water-Front Company, its successors or assigns, the water front to the city of Oakland, and the rights and franchises therein mentioned. The Oakland Water-Front Company, by deed dated January 12, 1868, conveyed to the city of Oakland the land agreed to be conveyed in the above contract. The Oakland Water-Front Company, July 12, 1879, dedicated for the purposes of a harbor and navigable water course nearly the whole of the estuary of San Antonio, and, to the fullest extent, all the land in the estuary set aside by the government for harbor purposes. On July 27, 1870, the Oakland Water-Front Company conveyed to the Western Pacific Railroad Company the tract of land on the water front selected and located by it for railroad purposes under the terms of the contract of April 1, 1868, as desired and required by the city of Oakland, and these are tracts 1 and 6, and a portion of 5. The Western Pacific Railroad Company, in 1868 or 1869, established its terminus on tract first; built a long wharf and station at the end of it, with buildings, docks, wharves, and depot for passengers and freight by vessels and ferryboats. Tract second was conveyed by the Oakland Water-Front Company to the Central Pacific Railroad Company on May 3, 1878. The greater portion of this tract is occupied by a slip for freight steamers, and the tracks and appurtenances necessary in handling freight cars. Large sums of money were expended by the railroad companies, and the fulfillment of conditions on their part may be assumed. The area of the seven tracts embraced 838 acres. It was stipulated that the Central Pacific Railroad Company, since the year 1870, had been, and still was, a corporation organized and existing under the laws of the state of California, by the consolidation and amalgamation of the Central Pacific Railroad Company of California, the Western Pacific Railroad Company, San Francisco & Oakland Railroad Company, San Francisco & Alameda Railroad Company, and other railroad companies, all there ofore organized and doing business under the laws of the state of California; that the South Pacific Coast Railway Company, since the year 1887, had been, and still was, a corporation organized and existing under the laws of the state of California; that the Oakland Water-Front Company was organized as a corporation under and in pursuance of its articles of incorporation set forth in the record, and was created for the purposes therein specified, as such corporation, and none other, and had ever since existed, and still existed, under such articles, and none other, under the laws of the state of California; that the defendant, Southern Pacific Company, was a corporation, citizen, and resident, as set forth in the original and amended bills of complaint; that the different pieces or parcels of land described were parts and portions of the Bay of San Francisco and of San Antonio Estuary, and, in their natural state, were covered by their waters, at ordinary high tide, and were so at the time California was admitted into the Union; that tracts first, second, third, fourth, fifth, sixth, and seventh were separated from the upland by the patent line of the Mexican grant known as the 'Peralta Grant,' confirmed by the United States to the heirs of Peralta, which line was designated as meandering along the line of ordinary high tide; that the Gentral Pacific Railroad Company was the owner of the upland down to the Peralta grant line in front of tracts first, second, and seventh, and was the owner of an undivided one-half interest in the upland down to the Peralta line fronting upon tract sixth; that the Gentral Pacific Railroad Company leased all of said tracts of land, both upland and tide water, to defendant, Southern Pacific Company, on February 17, 1885, for a period of 99 years, and the Southern Pacific Company ever since that time had been in the actual occupancy of tracts first and second; that the Southern Pacific Company was the owner of the upland in front of and bounded by tract third, and in the actual occupation thereof; that said company was not the owner of any upland adjoining tract fourth, but was in the actual occupancy of that tract; that the South Pacific Coast Railway Company was the owner of at least an undivided one-half interest in the upland down to the Peralta grant line in front of tract fifth, and that company, on July 1, 1887, leased that tract, together with the upland, to defendant, Southern Pacific Company, for a term of 99 years, and ever since that time said Southern Pacific Company had been occupying and using said tract; that defendant, Southern Pacific Company, acquired by mesne conveyances from Horace W. Carpentier all the right, title, and interest of Carpentier, if any he had, in and to tracts third and fourth; that the South Pacific Coast Railway Company acquired by like conveyances such interest, if any there were, to tract fifth; and that the Central Pacific Railroad Company had acquired, by like conveyances, such interest, if any, to tracts first, second, sixth, and seventh. Certain proceedings and decree in a suit in 1857 between the city of Oakland and Carpentier were also put in evidence; also, a sheriff's deed to one Watson, dated April 24, 1856, purporting to convey the water front; also, tax deed dated October 14, 1871, to Thomas Lemon, on judgment for taxes against the Oakland Water-Front Company and the water front of the city of Oakland; also, tax deed, dated May 14, 1880, of the water front to Watson. It was agreed that whatever right, title, or interest was acquired through these deeds, or either of them, became vested by mesne conveyances in the Central Pacific Railroad Company, as to tracts first, second, sixth, and seventh; in defendant. Southern Pacific Company, as to tracts third and fourth; and in the South Pacific Coast Railway Company, as to tract fifth.
On July 12, 1882, the council of the city of Oakland passed an ordinance directing the withdrawal of defenses in certain cases, and the filing of a disclaimer of any interest or estate in he property described therein, and the discontinuance of an action in which the city of Oakland was plaintiff and the Oakland Water-Front Company and others were defendants, with a stipulation that the Oakland Water-Front Company might have a final judgment and decree quieting its title to the land described in its cross bill of complaint, provided that the reversion of the city to collect wharfage, tolls, and dockage at the expiration of the original grant to Carpentier should not be affected, and further providing that all claims, demands, controversies, actions, and causes of action against the Central Pacific Railroad Company and the Oakland Water-Front Company, or against either of them, in which the city of Oakland was interested, were thereby released, compromised, settled, and adjusted forever. Certain decrees in the suits referred to in the ordinance, quieting title to the tracts in the Central Pacific, the Oakland Water-Front Company, and Huntington, as against the city of Oakland, are in the record.
W. H. H. Hart and Aylett R. Cotton, for complainant.
H. S. Brown, William M. Stewart, J. Hubley Ashton, John K. Cowen, and Hugh L. Bond, Jr., for defendant.
W. R. Davis, John S. Miller, J. A. Johnson, William Lair Hill, and E. J. Pringle, for City of Oakland.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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