The Act of 1858 (Sec. 13) makes a distinction between ordinary fresh-water swamp land and " salt marsh land," in this, to wit: that the latter were not to be subject to sale until six months after the passage of the Act, except to parties owning or occupying the adjoining arable lands. But subject to this restriction, " salt marsh" lands were certainly subject to sale. It becomes material, then, to inquire what are " salt marsh" lands? I claim them to be all lands which at certain stages of the tide, whether of the neap tides or spring tides, are covered with water, and at other stages are not covered. If they are covered by the daily high tides, and are above the water at low tide, they are as much " salt marsh" lands as if they were covered at the spring tides only. But if " salt marsh" lands are covered by the daily ordinary high tide, then they are lands which belong to the State by virtue of its sovereignty. This will not be denied. Nor can it be denied that such lands were subject to purchase under the Act of 1858. It is obvious, then, that by that Act, lands which belonged to the State by virtue of her sovereignty, could be purchased. But as a condition to the purchase, the applicant was required to make oath that he desired the lands for the purpose of settlement and cultivation. This restriction was removed by the Act of 1859, after which such lands were subject to purchase without any qualifications as to the purpose to which they were to be applied. It appears, then, that some lands, below ordinary high tide, and which belonged to the State by virtue of her sovereignty, were liable to purchase, and without any obligation on the purchaser to reclaim or cultivate them. In such case must the purchaser stop at the beach? or may he not take all the land down to low tide or beyond it, if he wishes? Why allow him to purchase a part of the land, below the usual high tide, and exclude him from other portions? Where could the line be drawn in such a case? If the beach shelve up gradually from low water mark and extend back for half a mile, creating a salt marsh, could not such land be purchased down to low water mark? If not, at what point could the line be drawn?
The point I make, therefore, on this clause of the statute is, that all salt marsh land, whether below neap or spring tides, is subject to purchase down to low water mark; from which it isevident the Legislature did not intend to reserve the beach from sale.
But subsequent legislation indicates distinctly the policy of the State in respect to these lands. By the Act of May 13th, 1861, a Commission was organized for the reclamation and sale of swamp and overflowed, salt marsh, and tide lands. It does not repeal the Act of 1859, except that it modifies the affidavit to be made by the claimant, and all the above-named lands are placed on the same footing. (Sec. 27.) They are all to be surveyed, segregated, and sold. By another Act passed on the next day (14th May, 1861, Session Acts 1861, p. 363), the sales of all marsh and tide lands belonging to this State, that had 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," were ratified and confirmed; and it was further provided, that all such lands remaining 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."
This Act recognizes the fact that tide lands had been sold in accordance with previous Acts, and ratifiessuch sales. But it is said that if the previous Acts authorized the sale, and if the sales had been made in accordance with those Acts, what need was there of a confirmatory Act? A ready answer is found in the fact that doubts existed as to the validity of such sales, and the Act was passed simply to remove these doubts. Hence, it provides that where sales had been made " in accordance with," that is to say, according to the forms prescribed by former Acts, the sales shall be deemed valid. It was simply a legislative interpretation of the former Acts, and in order to remove all doubt for the future, it provides that all such lands remaining unsold may be purchased under the provisions of the laws then in force. It also changes the destination of the funds to be derived from such sales, and appropriates them to the swamp land fund. This Act indicates, unmistakably, the policy of the Legislature in respect to tide lands. It confirms all sales that had been made, and authorizes future sales.
But this Act has an important bearing on the case at bar in another respect. The first affidavit made by the respondent with a view to the purchase of the land in contest, was made on the 2d March, 1861, and was filed with the County Surveyor on the 8th March, and the first survey was made on the 14th March. An amended affidavit was made on the 20th April, 1861, and filed with the County Surveyor on the 20th May, 1861. The last-named affidavit was therefore made a few days before the passage of the Act of the 14th May, 1861, but was filed with the Surveyor after the Act passed and whilst it was in force. The patent was issued October 4th, 1861. The survey was approved by the Surveyor-General, July 30th, 1861. The Act of May 14th was therefore in force when the amended affidavit was filed, when the survey was approved, and when the patent issued. On these facts I insist that the patent is valid as coming within the provisions of that Act. All the proceedings which give validity to the title occurred after the passage of the Act, and are governed by it. It is wholly immaterial that the affidavit was sworn to before the passage of the Act. It took effect as an affidavit from the time of its delivery to the Surveyor, and the survey founded upon it being approved after the passage of the Act, must be governed by it. The question to be decided is whether or not, atthe date of the survey and patent, the land in contest was subject to be so conveyed. If the land was then subject to sale, it does not follow that any slight irregularity in the preliminary proceedings would vitiate the patent. When the State asks the Court to vacate its own patent, it must establish either fraud or mistake, or that the patent was issued in violation of law. I am now considering the latter ground, and think I have shown that the land was subject to purchase under the Act of May 14, 1861, when all the essential steps were taken, to wit: when the surveyor received the affidavit, when the survey was approved, and when the patent issued, and these are all that were necessary to establish the power of the Governor to issue the patent. In the absence of fraud, so solemn an instrument as a patent for lands ought not to be disturbed on the purely technical ground that an affidavit was sworn to a few days before it was delivered to the proper officers. The State has been paid for this land, and ought not to be allowed to avoid its deed on the dryest possible technicality, which in no manner affects the intrinsic merits or justice of the respondents' title to the land.
Inentering or pre-empting lands under the land system of the United States, certain forms are prescribed and certain acts to be done before and by the Register and Receiver. If a slight informality occurs in the proceedings, if an affidavit is sworn to a few days too late or too soon, or before the wrong officer, or if the surveyor in sectionizing the land has committed a small mistake, and the claimant in good faith has paid his money and received his patent, would any Court tolerate an application from the Government to vacate the patent for such reasons? If so, there would be no repose in titles. No man would be safe in buying patented lands if his title was at any time liable to be overthrown by proceedings to vacate the patent because of trifling defects of form in the preliminary steps. Every principle of public policy demands that patents shall not be disturbed for trivial causes.
My argument on this branch of the case may therefore be summed up as follows, to wit:
1st. That by the Act of 1855, tide lands were expressly excepted from sale.
2d. That by the Act of 1858, the reservation was removed, and said lands were authorized to be sold.
3d. That it was nota condition of such sale that the lands were to be reclaimed or cultivated, or that they were fit for cultivation.
4th. That the Act of May 14, 1861, is a legislative interpretation of the preceding Acts, and was intended only to remove existing doubts as to the validity of such sales.
5th. That the patent is valid under the last-named Act, and is protected by it.
6th. That slight irregularities, if any existed in the preliminary steps, will not vitiate the patent.
The appellants claim that even though the beach itself was subject to purchase, the land below low water mark was not, and that as the patent embraces lands covered with the water of the ocean at all times, the whole patent is void.
Their position is that if a patent embrace some lands which were grantable and others which were not, the whole patent is void, that it cannot be good in part and bad in part, but will be set aside in toto if it embrace any lands which could not be granted. The District Court held the patent to be good for the beach, but void as to the land below low water mark.
For the purposes of this argument it is not material whether the lands below low water markcould be granted or not, provided the Court was right in the position that the whole patent is not void because it embraced some lands not subject to grant. I shall, therefore, first address myself to the latter proposition.
The law on this point is too well settled to admit of serious debate.
The leading case on this point in the Supreme Court of the United States is Danforth v. Wear (9 Wheat. 673), in which the Court held the patent to be valid for a part of the land and void as to the residue. The case of Patterson v. Jenks' Lessee (2 Pet. 216), is directly in point. The Court in its opinion uses this emphatic language: " In the nature of the thing we perceive no reason why the grant should not be good for land which it might lawfully pass, and void as to that part of the tract for the granting of which the office had not been opened. It is every day's practice to make grants for lands which have in fact been granted to others. It has never been suggested that the whole grant is void because a part of the land was not grantable." The opinion was delivered by Mr. Chief Justice Marshall.
This was followed by the case of Winn v. Patterson (9 Pet. 663), inwhich the opinion was delivered by Judge Story, and in which occurs the following passage. Referring to one of the instructions, he says: " It contains a proposition absolutely universal in its terms, and that a grant of land is an entirety, and that a grant void in part is void for the whole. If this proposition were true, then a grant of ten thousand acres which was void for any cause as a conveyance of one acre, although it might be for want of title in the grantor, would be void in the remaining nine thousand nine hundred and ninety-nine acres."
The same principle is held in People v. Mansan (5 Denio, 389); People v. Livingston (8 Barb. 253-283); S.C. 6 Taunt. 369.
I invite attention also to the case of The People v. Van Rensselaer (5 Seld. 291), in which the principle is discussed at some length, and the authorities are collated on pages 323, 324. (See also Little v. Bishop, 9 B. Mon. 246; Janet v. West, 1 Har. & J. 501; Hough v. Dumas, 4 Dev. & B. 328.)
These authorities are a sufficient response to the argument of appellants' counsel on this point. They establish the principle too firmly to admit of debate that a patent is not void becauseit embraces some land not grantable, but is good for all the land which it properly includes.
JUDGES: Shafter, J. Mr. Justice Sawyer expressed no opinion.
OPINION
SHAFTER, Judge
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 land are large and valuable deposits and beds of asphaltum. No part of the tract is fit for cultivation or capable of producing 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, 1851; 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, 3 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 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. None 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 pre-empt 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 rule 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 nor 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); and it 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 strictness, 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., Sec. 278 a, 279, 279 a; Fellows v. Fellows, 4 Cow. 682; Owen v. Frink , 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 injunction 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. But 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., Sec. 284 a, 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.