gained by adverse possession, and the statute of limitations does not apply to an action by the state or its agents to recover such property from one using it for private purposes not consistent with the public use. This is the settled rule in this state with respect to all properties so devoted to public use, and tide-lands, underlying waters forming part of the waters of a navigable bay used for navigation, are not, in this respect, to be distinguished from property used for other. public purposes. Upon this point the rule is thus stated: "It is immaterial where the title-that is, the record titleis held, whether by the state at large, or by a county, or by some municipal department or other official body. There can be no adverse holding of such land which will deprive the public of the right thereto, or give title to the adverse claimant, or create a title by virtue of the statute of limitations. The rule is universal in its application to all property set apart or reserved for public use, and the public use for which it is appropriated is immaterial. The same principles which govern the adverse holding of a street, a public square, a quay, a wharf, a common, apply to the adverse holding of a schoolhouse. The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." This rule has been often repeated in the opinions of this court. (Hoadley v. San Francisco, 50 Cal. 275; People v. Pope, 53 Cal. 437; Visalia v. Jacobs, 65 Cal. 434, [52 Am. Rep. 303, 4 Pac. 433]; San Leandro v. Le Breton, 72 Cal. 170, [13 Pac. 405]; Yolo Co. v. Barney, 79 Cal. 378, [12. Am. St. Rep. 152, 21 Pac. 833]; Mills v. Los Angeles, 90 Cal. 522, [27 Pac. 345]; Orena v. Santa Barbara, 91 Cal. 621, [28 Pac. 268]; San Francisco v. Bradbury, 92 Cal. 418, [28 Pac. 803]; Archer v. Salinas, 93 Cal. 43, [28 Pac. 839]; Ames v. San Diego, 101 Cal. 394, [35 Pac. 1005]; Home v. San Fran cisco, 119 Cal. 537, [51 Pac. 950]; Holliday v. San Francisco, 124 Cal. 358, [57 Pac. 146]; San Francisco v. Sharp, 125 Cal. 536, [58 Pac. 173]; Southern Pacific Co. v. Hyatt, 132 Cal. 240, [64 Pac. 272].)

It is true that the public use may, by some lawful act of public authority, be discontinued or abandoned and that, in that event, the property may thereupon cease to be protected

by this rule. If the title is at that time held by the state, it will thereafter hold it as a proprietor and not as a public agent or sovereign in charge of a public use. If an adverse possession can be maintained, or if the statute of limitations can run against the state, in regard to such proprietary property, it will begin from the date when the public use ceased and not before. If the power is left to the legislature, it may then provide for the sale of such property in order that it may become the subject of private ownership. But, as was said in Yolo County v. Barney, 79 Cal. 378, [12 Am. St. Rep. 152, 21 Pac. 833], the fact that the public authorities in charge of the property have power to discontinue or abandon the public use and sell the property for private use, does not affect the rule above cited, nor enable an occupant to gain it by adverse possession before that event occurs, or to invoke the statute of limitations to protect his possession against the state.

This was the rule applicable to such property, so held and used, before the adoption of the constitution of 1879. To make such tide-lands more secure against unwise disposition by the legislature to the detriment or destruction of the public rights, the following provision was inserted therein: "All tide-lands within two miles of any incorporated city or town in this state, and fronting on the waters of any harbor, estuary, bay, or inlet, used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations." (Art. XV, sec. 3.) Other constitutional provisions prevent the gift of any state property by the legislature. (Art. IV, sec. 31.) So long, therefore, as property of this character remains subject to use for the purposes of navigation, it cannot without an amendment of the constitution be disposed of by the state in any manner, except in furtherance of the purposes of navigation to which it is dedicated. The provisions of the constitution are of higher force than the statute of limitations, or the statute defining the manner of acquiring title to property by adverse occupancy. If the state is without power to dispose of this land for private use at all, its officers and agents must be without power to make a virtual disposition of it by their neglect in permitting private persons to occupy it for a period of ten years, under claim of ownership, and thus giving such persons an opportunity to invoke for their benefit a legislative declaration

that such occupancy will bar the state of its title. So far as the statutes referred to may have had that effect before the adoption of the constitution, they must be considered as having ceased to exist when the constitution took effect. The constitution declares that all laws inconsistent with its provisions shall cease upon its adoption. (Art. XXII, sec. 1.) In this view of the case, it is immaterial whether title by prescription under the code is, or is not, founded upon the presumption that the possession was originally taken under a grant which had been lost in the lapse of time, as was the case at common law, even if it were conceded that the rule that there can be no adverse possession of property devoted to public use did not apply to this land.

It is claimed that the land in controversy is not now devoted to public use for navigation; that, by lawful action of the harbor board, the public use has been discontinued and abandoned and the land made available for sale to private use, and thus has become proprietary in character; that this occurred more than ten years before the action was begun, and hence, that the statute of limitations has barred the action and the defendants have acquired title. This theory is based on the fact that on March 17, 1890, the board of harbor commissioners of San Diego, under the provisions of sections 2587 and 2588 of the Political Code, established a line for the location of a seawall or a harbor embankment to be thereafter erected, and that this land is between that line and the shore, and some one hundred and fifty feet distant from the seawall line. It may be admitted that when a seawall shall be constructed on this line and the water between it and the shore is thereby excluded from use for navigation, the land between the wall and ordinary high-tide line, not abutting on the wall, nor lying so near it as to be reasonably necessary for purposes incidental to and in furtherance of navigation, may become proprietary lands, which, like ordinary public land, may be sold by the state to private persons for private use not connected with navigation. Perhaps before such wall is constructed, land within the seawall line and so remote therefrom that its use for private purposes would not be detrimental to the public use or the public right, might be disposed of to private persons in connection with and in aid of the building of such wall and its adaptation to purposes

of navigation and commerce, as, for instance, to raise funds wherewith to build the wall. We are not called upon here to express any opinion on these questions. No such case is presented. No such disposition of the land has been made to the defendants, or to any person. No seawall has been built or projected; no barrier or obstruction to navigation has been placed on the line. For all practical purposes the bay is open to navigation to the actual shore line of high tide over the land in question as fully and freely as before the line was so located. It still remains, in fact, a part of the bay of San Diego which, by section 2579 of the Political Code, is placed in the possession and control of the harbor commissioners, with all the rights, privileges, easements, and appurtenances connected therewith. They may, at any time, change the location of the line. (Pol. Code, secs. 2579, 2588, 2593.) Before a seawall is constructed and before private rights accrue from such construction it would seem that their power to make such change is unlimited. It may therefore be changed so as to include this land within the waters of the bay set apart exclusively to navigation. In People v. Williams, 64 Cal. 499, [2 Pac. 393], the court says: "The mere establishment of a harbor line does not deprive the state of the right to control and regulate the water within the line." We think the establishment of the seawall line has no effect whatever upon the character of the waters and tide-lands between it and the shore as property devoted to use for navigation, at least, until some further action is taken looking to the erection of the wall, or the abandonment of the public use of the waters between it and the shore.

On March 18, 1850, the alcalde of the pueblo of San Diego, in consideration of the building of a wharf by the grantees, executed a deed purporting to convey to Jose Aguirre and others fifteen acres of land, including the land in controversy. The defendants claim under this deed and deraign title therefrom by a regular chain of conveyances. The wharf was built, but is gone. Defendants do not claim that they ever maintained any wharf. San Diego was incorporated on March 27, 1850, nine days after the execution of this deed. (Stats. 1850, p. 121.) This conveyance could not have been of any force or effect to pass the title. At that time the title had accrued to the United States as sovereign. The community which after

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ward became the city of San Diego was then a mere unincorporated village, or at most, a Mexican pueblo, exercising some powers in that capacity. Whatever powers it may have possessed over this land as a Mexican pueblo before the cession of the territory to the United States, those powers ceased when the cession took place, and the sole power and authority to dispose of such lands was thereupon transferred to the United States and was by it transmitted to the state of California at the time of its admission as a state on September 9, 1850. There is nothing in the incorporating act creating the city of San Diego that purports to validate the previous grants of tide-lands made by the alcalde. The act of May 14, 1861, refers only to marsh and tide-lands within five miles of the city of Oakland and San Francisco, or within one and a half miles of San Quentin prison. The proviso in that act declares that no sales of such land within those limits shall be confirmed by the act, "excepting alcalde grants which are hereby ratified and confirmed." (Stats. 1861, p. 363.) Statutes which operate to deprive the state of its property are to be construed favorably to the state, or, at all events, are not to be construed strictly against it. Under any theory of interpretation applicable thereto, this statute should not be deemed a ratification of previous alcalde grants of tidelands in or adjacent to San Diego.

We have said nothing so far upon the question whether or not the provisions of section 315 of the Code of Civil Procedure do, in fact, apply to actions by the state for the recovery of possession of these tide-lands, aside from their exemption under the constitution, or as lands devoted to public use. For the purposes of the discussion we have assumed that they would apply but for such exemption, and that their effect was similar to that of section 318 respecting private property, except as to the length of the period of limitations. The language of the two sections, however, is materially different. Section 318 declares the action barred, unless the plaintiff, or his privies, were "seized or possessed of the property in question within five years before the commencement of the action." Section 315 is as follows: "The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless: