Knight

In whatever point of view this case may be regarded, I am of opinion that th,e evidence was admissible to show that the land in controversy was situated below the ordinary high-water mark of the- bay of San Francisco, as it existed on the seventh day of July, 1846.

Whatever the right of the pueblo was to the land, for which confirmation was sought by the city of San Francisco, it was never held to extend below the ordinary high-water mark of the bay. It was so adjudged by the decree of confirmation entered in May, 1865. The act of Congress of March 8, 1865, ratified the decree as it was made and entered.

If there was no judicial determination binding on the state fixing a different boundary from that of high-water mark as determined by the decree, the evidence above referred to, in my judgment, was clearly admissible. As the decree adjudges to the city nothing beyond high-water mark, evidence was admissible to locate this line so as to show that the land sued for was outside of that line.

In my opinion, the patent which sets forth the decree shows no different determination as to this line from that set forth in the decree itself. The patent shows the only other determination…

This case was first heard and an opinion thereon filed in Department. Subsequently a rehearing in Bank was granted, and after argument a decision was filed January 2, 1890. This was followed by divers petitions for a second rehearing, representing that tile case was one of great public importance, involving the validity of land titles to a very considerable, and what is now a very valuable, portion of the city of San Francisco; and in view of the alleged importance of the questions involved, a rehearing was granted. Upon this hearing elaborate oral arguments have been made, and all who desired have been permitted to file printed briefs and arguments, all of which have been carefully considered, and we are still constrained to adhere to the conclusion first reached in Bank, and announced in the opinion written by Mr. Justice Paterson, post, p. 474.

This is not, as assumed on behalf of appellant, a case of conflict between two parties, both claiming under the *457 government of the United States; nor is it a case where one is claiming under patent issued by the government of the United States, and the other is a mere naked trespasser, failing to connect, himself with any paramount…

I dissent. I could not express my views of the question involved in an original opinion as satisfactorily to myself, and certainly not as satisfactorily to others, as they are expressed in the deliberate opinion of this court delivered by Mr. Justice McKinstry in the recent case of People v. San Francisco, 75 Cal. 338 . The reasoning of that opinion, and the authorities therein cited, are, to my mind, unanswerable and conclusive. It is said that in that opinion the court was not happy in its selection of authorities, and that it ought to have been controlled by Doolan v. Carr, 125 U. S. 618 , Wright v. Roseberry, 121 U. S. 488 , and Smelting Co. v. Kemp, 104 U. S. 641 . But it happens that all the authorities cited in People v. San Francisco dealt with the very matters involved in this case,—that is, with rights claimed under Mexican grants, with the conclusiveness of United States surveys and patents in such cases, and with powers exercised under the act of March 3, 1851, and subsequent acts, to ascertain and settle such claims in the state of California. On the other hand, Doolan v. Carr merely decides that the United States land department has no power to issue a patent to a…