The San Francisco call., 1895-07-17
0AKLAND'S VICTORY,
Continued from First Page.

able waters upon the ground of purpresture
merely. 1t is question of sovereign pleasure
only and not question of public justice"
1t might be said that inasmuch as the deed
from Oakland to Carpenter is void the de-
fendant could obtain no rights in or to any
portion of the land in question. But where
the occupation is OF such portion of the
premises as might originally be granted by
the city Chat is to say, would not interfere with
navigation and commerce and requiring no
Governmental eontrol) and improvements are
erected thereon, and subjected to private con-
troll, the doctrine of estoppel is invoked.
A party will in many cases be estopped by
his declarations or conduct which have in
fiuenced the conduct of another to his injury.
But this doctrine is never extended to defeat
public policy.
Certainly the city of Oakland has done all
in its power to lead the defendant and all
others to believe that the lands IN question
were proprietary lands.
The fact that the code authorizes a writ of
possession in actions similar to the one at bar
makes it proper to here add that nothing has
been adduced upon the part of the plaintiff to
show that the land below high tide, upon
which wharves have been constructed, can be
taken possession of under the decree to be
rendered in this action.
THE DEED To CARPENTER.
In view of the foregoing conclusions of law
it becomes unnecessary to pass upon the effect
of the deed from Marier to Carpenter. 1t is
sufficient to say that viewing 1t as contended for
by defendant, it becomes but a patent" A
legislative grant is fully as high muniment
of title patent.
1t was urged near the close of the testimony
taken in this case that the plaintiff should be
compelled to bring in as defendants all
~, y,
their presence this court could not decide this
cause.
Section 738 of the Code of Civil Procedure
provides that an action may be brought by
any person against another who claims an
estate or interest in real property adverse to
him, for the purpose OF determining such. ad-
verse claim.
This action differs in many respects from
bill quia tinet.
Formerly, where the defendants claim was
void, it was deemed that the plaintiff was not
entitled to relief at equity; but the section 73S
just cited changes the former rule.
The section is very broad in its scope and
must be held to authorize an action against
any one who claims an adverse interest or es-
tate in the property in question, and such
ae tion does not abate by reason of the fact that
others make like claims.
1t may be the city of Oakland is advised she
is estopped from claiming title to those pieces
sold by the defendant to third persons for pur-
poses of trade and commerce, and, therefore,
does not desire to affect their claims. If so
see no reason why she should be forced to
make them parties defendant. The decree in
this section should recite that nothing con-
tanned therein should affect the title or right
of possession of third parties.
Plaintiff has not fixed ordinary high-tide
lire or the encroachments made upon the
former line of ordinary high tide or the accre-
tions to the land made by the wash of the sea-
This being so the present line of ordinary high
tide will govern as the boundary of the land to
be affected by this decree.
If either party to this action be advised that
other testimony = in accordance with this
opinion-should be received in support of the
claim to the land covered by the wharves now
in possession of defendant, they may within
five days after the filing of this opinion move
the court for the privilege of presenting such
additional testimony, and the entry of the de-
cree will be stayed for that period
Il Let decree be entered in accordance with
this opinion, the line of ordinary high tide
as it now exists being the boundary on the
north and east, and the southern and western
boundary OF the city being the boundary on
the south and west F. b. OGDEN Judge.
Jr11v 16 1905