In such circumstances a valid contract for the purchase of the land arose, which was not abrogated thereafter by incorporation of the city. Although the patent was not issued until after the incorporation of the City of Newport Beach, on September 1, 1906, prior thereto Harbou had applied for the patent, paid the purchase price and received a certificate of purchase. The prohibition contained in section 3, article XV of the Constitution forbidding alienation to private persons of tidelands within two miles of any incorporated municipality does not invalidate the patent herein. ) Said patent was issued to Harbou prior to the enactment in 1909 of section 3443a of the Political Code, which withholds from sale by the state tidelands on navigable waters. The effect of the patent issued by the state to Harbou, plaintiff's predecessor, was to vest in him title to the tidelands in question subject to the public easement for navigation, commerce and fishing. It is true that Newport Bay was not included in the list of navigable waters in section 2349 of the Political Code, until 1909, but this does not mean that prior to that date it was not navigable in fact. In the light of the evidence the trial court lawfully could reach no other conclusion than that the lots were tidelands on navigable waters. Alamitos Land Co., supra.) The federal government has established pierhead and bulkhead lines in said bay as a navigable harbor. Alamitos Land Co., supra.) None of the witnesses herein was familiar with the lands as early as 1850, but their testimony as to the condition of the lots at a later date was material in arriving at a conclusion as to their status at the earlier time. For the purpose of determining whether lands vested in the state by virtue of her sovereignty it is their condition as tidelands at the time of the admission of California into the Union in 1850 which is material. Defendant city also offered oral testimony as to the tideland character of the lots in question. As to the patentee and plaintiff, successor in interest to said patentee, said patent is a conclusive determination of the nature of said lots, and establishes their character as tidelands on navigable waters, title to which vested in the state of California by virtue of her sovereignty on her admission to the Union in 1850. The lots were described in said patent as tidelands belonging to the state by virtue of her sovereignty, and were conveyed to Harbou by reference to a plat known as Location 267, State Tidelands. Said patent was issued under the provisions of sections 3440-3443 of the Political Code, providing for the sale by the state of its swamp and overflowed, salt marsh and tidelands. Plaintiff deraigns her title through a patent issued by the state of California in 1907 to George W. Defendant city further contends that the title of those through whom plaintiff claims was divested by certain tax sales, and that as purchaser at said sales it owns title to said lots in fee. It contends that in view of the finding that the lands are tidelands subject to the public trust, it is entitled to make changes and improvements thereon in the interest of the public trust, as administrator of said trust by virtue of a legislative grant to the city from the state in 1927 of the state's interest in tidelands of Newport Bay. It further adjudged that defendant city had no right, title or interest in said land. The judgment provided that plaintiff was the owner in fee of said lots, "subject to an easement in favor of the public for right of navigation and fishery only, but without any right in the public or any public agency to make any physical changes or improvements therein or thereon without the exercise of eminent domain". The court found that the lots were tidelands in Newport Bay. Plaintiff brought this action against the City of Newport Beach to quiet her title to two lots within the bounds of said city. CITY OF NEWPORT BEACH (a Municipal Corporation), Appellant.Įdward V.
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