sition is based upon the theory that the deed executed by her conveyed title to the grantee to the strip of land between the straight line from B to C referred to in the opinion in the Wheatley case and the tide line to the south of it. This claim is without foundation. The boundary of the land described in her deed to the Terminal Land Company was not, as appellant claims, the straight line extending from B to C, but was the south boundary of Wilmington itself, that is to say, the actual high tide line of the bay. [2] That deed presents the familiar case of an irregular boundary located by means of a meander line giving straight courses from point to point along the irregular line to be located thereby. In such cases the boundary extends to the irregular natural object which is meandered by the straight (See Woods Appeal, 63 Pa. St. 221; 1 Jones on Real Prop., sec. 491.)

courses.

The judgment and order denying a new trial are affirmed.

L. A. No. 3298. In Bank. March 4, 1915.

*GEORGE C. FLINT, Plaintiff and Respondent, v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY, a corporation, Defendant and Appellant.

Appeal from Superior Court of Los Angeles County-Frank G. Finlayson, Judge.

For Appellant-W. F. Palmer, F. A. Waters, Wilfrfed M. Peck. For Respondent-Woodruff & McClure.

BY THE COURT.

The question in this case, based upon similar facts, are considered and decided in the case of Wheatley v. San Pedro, Los Angeles & Salt Lake Railroad Company (L. A. No. 3299), this day decided. Upon the authority of that decision the judgment and order denying a new trial are affirmed.

L. A. No. 3485. In Bank. March 4, 1915.

RUTH PATTON, ANNIE WILSON and HANCOCK BANNING, Plaintiffs and Appellants, v. THE CITY OF WILMINGTON et al., Defendants, THE CITY OF LOS ANGELES, Respondent.

[1] TIDE LANDS-ACCRETION TO MAINLAND CONSTRUCTION OF RAILROAD EMBANKMENT-STATE TITLE NOT DIVESTED.-The title of the state to tidelands withheld from sale is not divested by reason of an accretion to the mainland caused by the erection of a railroad embankment leading from the mainland across a part of the bay.

[2] ID. LITTORAL RIGHTS RIPARIAN OWNERS OVER ADJOINING TIDELANDS-SUBORDINATION TO PUBLIC EASEMENT OF NAVIGATION.—All rights of riparian owners over adjacent tidelands are subject to the public easements for the purposes of navigation, and must yield thereto when the latter are asserted by the state or its agencies.

[3] ID.-STATUTE OF LIMITATIONS-ADVERSE POSSESSION OF TIDE LANDS-FEE SUBJECT TO PUBLIC EASEMENTS NOT ACQUIRABLE.—A title On hearing after judgment in District Court of Appeal, Second District (18 Cal. App. Dec. 563).

to tidelands which have been withheld from sale by the state cannot be acquired by adverse possession in the fee subject to the public easements of navigation and fishing (Angellotti, C. J., not concurring).

[4] ID.-ID.-ID.-ID.-SALE OF SWAMP AND TIDELAND UNDER CODE PROVISIONS-SALE SUBJECT TO PUBLIC EASEMENTS-EFFECT OF RECENT DECISION.-The declaration in the recent decision of People v. California Fish Co., 166 Cal. 576, that a sale of tideland, in pursuance of the swamp and tideland provisions of the Political Code, constitutes a valid transfer of the subordinate estate, does not justify the conclusion that prescription runs against the state as to the fee in tideland, as there is nothing in the swamp land laws purporting to deal with the subject of navigation, or to protect, preserve or provide for it or to show a design to execute the public trust upon which the state holds tideland in the interest of navigation.

Appeal from the Superior Court of Los Angeles County-—Walter Bordwell, Judge.

For Appellants-Smith, Miller & Phelps.

For Respondent-John W. Shenk, City Attorney, Anderson & Anderson, Leslie R. Hewitt.

The plaintiffs have appealed from the judgment.

The city of Los Angeles was not named as a defendant in the complaint. It was, however, substituted as defendant instead of the city of Wilmington. Thereupon the action was dismissed as to all the other defendants. The action proceeded as an action between the plaintiffs and the city of Los Angeles as the sole defendant, the city filed an answer, and upon these pleadings the trial took place.

The complaint states a cause of action to quiet title to a tract of land, a part of which lies within the bay of San Pedro, containing about seven acres, and incidentally to enjoin the defendants from removing the soil therefrom and from depositing soil thereon, and for damages. The pleading of the city of Los Angeles denies the plaintiffs' title and the alleged trespasses and damages. It further alleges that the part of the land described in the complaint which lies south of the southern boundary line of the San Pedro or Dominguez ranch is tide land and is covered by the ordinary tides of the bay of San Pedro. Thereupon it asks judgment that the plaintiffs have no right or title in or to said tide land.

The findings state that the plaintiffs are the owners of the part of the tract lying north of the San Pedro ranch boundary and that the city of Los Angeles is the owner of the part lying south of said line, that is, of the tide lands, and is entitled to the possession thereof, and further that said land has been reserved, for purposes of navigation, by the United States government. Judgment was given that the plaintiffs are the owners of the said upland parcel and that the city of Los Angeles is the owner of the parcel of tide land, in trust for the uses set forth in the act of the legislature granting said lands to the said city.

In explanation of what would otherwise seem to be a finding outside of the issues, it is to be observed that after the filing of the answer and before the trial, the legislature passed the

act of May 1, 1911, granting to the city of Los Angeles all the right, title and interest of the state in all the tide and submerged lands within the city boundaries, as then constituted, which included the tide land in controvery here, in trust for certain enumerated uses and purposes which may be described in general terms as the uses and purposes of public navigation and commerce. (Stats. 1911, 1256.) At the time of the trial, therefore, the city of Los Angeles had succeeded to the title of the state. The case is to be considered as a controversy between the plaintiffs and the city of Los Angeles as the successor of the state. As this was shown as matter of law, of which the court will take judicial notice, and as there seems to have been no objection made in the court below to the substitution of the city of Los Angeles for the city of Wilmington, or to the filing of the answer by the former, or to the sufficiency thereof, or to the making of the finding of title in the former, provided it is supported by the law and the evidence, the irregularity of the proceedings may be disregarded. The trial manifestly proceeded upon the theory that the title of the defendant, under the aforesaid statute, and the title previously held by the state as well, was in issue.

The first point urged is that the land south of the boundary of the San Pedro or Dominguez grant is not tide land. If it is tide land, then, under the decisions in People v. California Fish Co., 166 Cal. 576, and the companion cases decided at the same time, it was withheld from sale at the time the predecessors in interest of the plaintiffs claim to have purchased it from the state and the patents and purchases made by them from the state officers are void. In so far as it proves to be tide land, a secondary question is presented, namely, the claim of the plaintiffs that they have acquired title thereto from the state by prescription. The appellants also claim littoral rights as owners of the upland riparian to the navigable water.

[1] It is first contended that a part of the land south of the boundary has ceased to be tide land because of an accretion to the mainland caused by the erection of an embankment leading from the upland by the Southern Pacific Railroad Company along the line of its road leading from the mainland across a part of the bay. Regarding this and other claims of accretions by and additions to the upland, or because of erections and embankments of others, it is sufficient to say that the point assumes that it was once tideland, and that this being so, it was reserved from sale, and was not alienable by any state officer under any law, during the time when the alleged accretions occurred, and, therefore, no artificial embankment, made by third persons, or made or suffered by state officers or agents, nor any accretion to the adjacent upland caused thereby, could operate to divest the state of its title to the tide land so reserved. There was an interval of nearly a year, being the period between March 12, 1887, the date of the repeal of the act incorporating Wilmington, and March 1, 1888, the date of the incorporation of the city of San Pedro, during which there was no incorporated city or town

within two miles of this land and it was free from the reservation aforesaid. We do not think this fact could have effect to attach to the upland, as part thereof, the previously formed accretions and embankments, or to divest the state of its title to the tide land with which it had not previously parted. The railroad embankments were made pursuant to a license from the state under the Civil Code. We can see no plausible reason for the contention that the making of such embankments, or accretions caused thereby, would operate in favor of third persons to divest the state of its title to tide lands covered by the embankment and accretions extending out over it from the adjacent upland, and transfer the title to the owner of the upland. The case of Ledyard v. Ten Eyck, 36 Barb. 102, cited by appellants in support of the proposition that such embankments or accretions belong to the owner of the adjacent upland, is really authority to the contrary. That was a controversy between the owner of the upland and the owner of other land in the vicinity. What the court decided was that the possession of the accretions by the owner of the abutting upland could be disputed by no one except the state. In view of the statute under which this railroad embankment was made and the purposes for which it is used, the state cannot have intended to put itself in the position of one who affixes his property to the land of another without an agreement for its removal, and thus to transfer the affixed property to the owner of the land, as provided in section 1013 of the Civil Code. That section can have no application to an accretion thus caused.

The appellants also claim title to a part of the tideland that has been filled in by the city of Los Angeles since its acquisition of the title, in the improvement of the land to fit it for navigation and commerce. The city, under its grant, has no power to deal with the land otherwise. This change in the character

of the land could have no effect to transfer it to the owners of the abutting upland. Our conclusion, upon all these points, is that the land south of the ranch boundary still retains its character as tideland.

[2] With regard to the claim of littoral rights, we need only refer to the discussion thereof in People v. Southern Pacific Co., 166 Cal. 629, and in the more recent case of Henry Dalton & Sons Co. v. Oakland, 143 Pac. 721, wherein it is held that all rights of riparian owners over the adjacent tidelands are subject to the public easements for the purposes of navigation, and must yield thereto when the latter are asserted by the state or its agencies.

The remaining proposition urged for reversal is that of the claim of the appellants to title by adverse possession. There is evidence that in 1874 the plaintiffs' predecessor in interest took possession of the part of the land north of the ranch boundary, under a deed from Banning & Alexander, purporting to describe and convey the entire tract in controversy, including the tideland, and that said predecessor and the plaintiffs have ever since that date held possession of such upland, claiming title to the

entire tract. The claim is that under this deed and possession of the upland, the plaintiffs have for that period had constructive adverse possession of the tideland. If this is correct, and such adverse possession could lawfully divest the title of the state to the tideland, the plaintiff would thereby have acquired such title and the judgment awarding said tideland to the city would be erroneous.

It is conceded that no character or period of adverse possession could terminate or affect the public easements for purposes of navigation and fishery. It has long been the doctrine in this state that no length of time of maintenance, or number of repetitions, of wrongful encroachments can legalize a public nuisance; that adverse possession of land devoted to public use does not divest the right of the state, or other public body corporate in which the title is vested, to maintain such public use, nor in any manner affect the public right or the public (People v. Kerber, 152 Cal. 731, and cases there cited; to which may be added, Er parte Taylor, 87 Cal. 95; Bowen v. Wendt, 103 Cal. 238; Hoadley v. San Francisco, 70 Cal. 324; San Fran cisco v. Itsell, 80 Cal. 59; San Francisco v. Straut, 84 Cal. 125; People v. Holladay, 93 Cal. 245; Hargro v. Hodgdon, 89 Cal. 631; Board v. Martin, 92 Cal. 209.) So far as the public easements and the right of the state to improve and control the land for such purposes are concerned, therefore, the claim based on adverse possession gives the plaintiffs no rights whatever.

use.

[3] The theory is advanced that, although the public easements are not impaired or affected, the adverse possession is effectual to vest in the possessor the servient estate, the fee subject to the public easements. The general doctrine is that the title acquired by complete adverse possession is a title in fee simple. (Wright v. Carillo, 22 Cal. 594; Arrington v. Liscom, 34 Cal. 370; Cannon v. Stockmon, 36 Cal. 541.) The suggestion is that, if this be so, the adverse possession will be given effect as far as it can go, and will divest that part of the estate which the state had power to alienate without a violation of its duty to protect and improve the land in furtherance of the public use, the same effect that this court, in People v. California Fish Co. supra, held will be given to sales of unreserved tidelands under the law for the disposition of swamp and tidelands, that is, to give the possessor the naked title to the soil without right to interfere with the public easements.

There can be no doubt that this proposition has not heretofore had the approval of this court. The contrary has been often, in effect, adjudged. An examination of the cases above cited and referred to shows that in many of them the decision and judgment was, in effect, a denial of the doctrine.

recover

In People v. Kerber, supra, the plaintiff sued to possession of tidelands in San Diego bay. The defendants denied the plaintiff's ownership and claimed title by prescription. The judgment in favor of the state, covering the entire fee, was affirmed. The defendants had held possession for some fifteen years, claiming title in fee. If this possession had availed to