Los Angeles herald., 1893-01-10

of it's supposed analogy to similar in
strument by which the government title
to public lands is transferred to indi-
viduals. But the situation of the re-
spective paramount proprietors is 80
different that, so far at least as this case
is concerned, the analogy is destroyed.
The state itself had no title to the dis
puted premises unless they were, in
veyor general of the state had plenary
power to make tide lands by mere
declarations to that effect would be to
arm that official with power over the
waves of the sea, even greater than that
which certain ancient potentate is said
to have arrogated to himself. In the
exercise OF this power he might cause
the sea at ordinary high tide to wash
over thousands of acres, and thus by the
sweep of his pen and the impress of the
official seal tranfer the property of both
the general government and the private
individual beyond the power of the courts
to apply remedy, or stay the unspar
ing hand OF the dictator. If the land
belonged to the state in any event it
would be quite as proper for it to intrust
it's surveyor general with authority to
determine the character of such land
for the purpose of disposition, as it
would for the general government to
clothe the public land department with
similar powers in respect to its lands;
but the statute attempt to give this
officer absolute and unrestricted power
to irrevocably fix upon lands character
which ipso facto made them state lands
by no other process or proceeding than
simply granting such land to an individ-
ual by patent, such enactment would be
80 clearly unconstitutional that scarcely
any one could be found with sufficient
hardihood to test it's validity in the
courte. Where the title of the state de-
pends upon the character of the land
claimed, any one against whom q pat
entee of the state claims adversely, may
attack the validity of the patent upon
the ground that the premises do not
come within the description of the
lands.
1t is argued by plaintiff that before
one can be in position to attack the
patent he must connect himself with
the original source of title. This is q
rule which. believe, applies as we'll to
direct as to collateral attack upon pat
ents. (Smelting company vs.. Kemp,
supra.) There are authorities which
state that mere prior possession is not
sufficient connection with the original
source of title to entitle one to dispute
the presumptive title to patentee.
This is true where the rival claims are
under the same source. Here plaintiff
claims under the state and defendant is
in possession under authority of the
general government. If the disputed
property is not tide land, it belonged
either to the owner of the Palos Verdes
rancho or the government of the United
States. Defendant is in actual posses
sion, claiming under both these parties,
or rather claiming under either. If the
property is not tide land, then plaintiff
has no right to oust defendant, what
ever be defendants title.
Even if this were tide land and was
covered by defendants easement, de-
fendant could not be ousted from the
possession and use of the premises
authorized by the prior permit from the
surveyor-general. Whether the 200.foot
strip which defendant was authorized to
occupy embraces the Reynolds survey or
not, lam unable to determine accurately,
after careful reading of the testimony,
and an examination and comparison of
such exhibits as are in my possession,
nor do 1, in view of the evidence as to
the main fact, deem it essential that |
should do SO.
There is no dispute as to the meaning
OF the term "tide lands" 1t is such
land as is covered by water at ordinary
high tide. The evidence in this case
preponderates SO largely against the
conclusion that the land in question was
of this character that it is deemed an
necessary to go over it in detail. Even
most of the witnesses called by plaintiff
as to this question admitted that when
ever it was covered by water it was
either an extraordinary tide or there
was a wind of unusual violence that
aided it in it's flow. The meager
knowledge of the locality displayed by
the surveyor who made the survey upon
which the application for patent was
made, together with the noticeable alb.
sence of any pretended knowledge on
his part of the proper distinction be-
tween the flow of ordinary and extraor-
dinary tides will not suffice to support
the claims of the patentee against the
positive knowledge of other witnesses
whose testimony is given as the result
of years of daily observation and expe-
rience.
The conclusion reached is that the
judgment in this case should be for de-
fendant, and it is SO ordered.
Findings upon the ultimate facts
alone will be prepared aud submitted by