APPEAL from a judgment of the Superior Court of Alameda County. F. W. Henshaw, Judge.

The facts axe stated in the opinion of the court.

' The complaint in this case is similar to the information or bill in equity in the Chicago case, and states a cause of action. (Illinois Gent. R. R. Go. v. Illinois, 146 U. S. 387.) The attorney general had authority to institute this action. (People v. Stratton, 25 Cal. 242; People v. Gold Run Ditch etc. Go., 66 Cal. 138; 56 Am. Eep. 80; County of Yolo v. Sacramento, 36 Cal. 193; High on Injunctions, secs. 761, 1303.) Judicial notice could not properly be taken upon demurrer of any grant made to Oakland by tbe act of May 4,1852, judicial notice being merely a species of evidence where there is a trial upon an issue of fact. (Code Civ. Proc., secs. 590, 1823, 1827.) Any qualified rights in navigable water held under grant from the state are subject to tbe right of the state to protect navigation; and the state cannot part with rights which are held in trust for the public. ' (Const., art. XV, secs. 1, 2; Heckman v. Swett, 99 Cal. 309, 310; Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 452-56; Gould on Waters, sec. 32.) There is no misjoinder of causes of action. It is the great object of courts of equity to put an end to litigation, and to settle the rights of all persons interested in or affected by the subject matter of the controversy. (Reynolds v. Lincoln, 71 Cal. 187.) Different modes of relief do not make different causes of action. (Bliss on Code Pleading, sec. 114.) It was not necessary that the complaint should define what portion of the lands described in the complaint any defendant claims nor the interest that he claims. (Castro v. Barry, 79 Cal. 443.) The state alone has the right to complain of any trespass upon its rights. (San Pedro v. Southern Pac. R. R. Co., 101 Cal. 337.)

The court properly took judicial notice of the statutes taking title out of the state. The court may, upon demurrer, take judicial notice of facts not averred, which are established by law. (Cole v. Segraves, 88 Cal. 103; Faekler v. Wright, 86 Cal. 210; Rogers v. Cady, 104 Cal. 288; 43 Am. St. Rep. 100; Chapman v. Wilber, 6 Hill, 475; De Baker v. Railway Co., 106 Cal. 257; 46 Am. St. Rep. 237.) The state cannot complain of improvements made within the limits of the grant from the state to the city of Oakland. (Attorney General v. Utica Ins. Co., 2 Johns. Ch. 381-3.)

The legislature had the right to make the cession to the town of Oakland made by the incorporating act of May 4,1852. (San Pedro v. Southern Pac. R. R. Co., 101 Cal. 337.) The city of Oakland is the successor of the town under the act of March 25, 1854. (Oakland ¶. Carpentier, 13 Cal. 540; 21 Cal. 642; San Francisco etc. R. R. Co. v. Oakland, 43 Cal. 504, 505.) The state has recognized tbe right of tbe city of Oakland to control tbe barbor and wharves erected therein. (Stats. 1854, p. 183; Stats. 1860, p. 67; Stats. 1861, p. 384; Stats. 1862, pp. 337-55; Stats. 1867-68, p. 501; Stats. 1870, p. 693; Stats. 1875-76, p. 567;' Freeholder Charter, Stats. 1889.) A fact of which the court takes judicial notice is as much part of the pleadings as if it had been averred. (Branham v. Mayor etc., 24 Cal. 602.) The courts take judicial notice of whatever is established by law. (Code Civ. Proc., sec. 1875; People v. Smith, 1 Cal. 9; Irwin v. Phillips, 5 Cal. 140; 63 Am. Dec. 113; Ede ¶. Johnson, 15 Cal. 53; Payne etc. v. Treadwell, 16 Cal. 220; People ¶. Potter, 35 Cal. 110; People v. llagar, 52 Cal. 188.)

The attorney general was not the proper officer to begin this action. (Pol. Code, secs. 443, subd. 16, 470.) There is a mis-joinder of parties defendant and of causes of action. (Code Civ. Proc., sec. 427.) The court properly took judicial notice that the state had parted^with its interest in the subject matter of the action. (Code Civ. Proc., sec. 1875; Cole v. Segraves, 88 Cal. 105; Ex parte Kearney, 55 Cal. 221; People v. Ha-gar, 52 Cal. 188; Whiting v. Townsend, 57 Cal. 515; Faekler v. Wright, 86 Cal. 210.)

Courts take judicial notice at any stage of an action or proceeding, without averment or proof. (Code Civ. Proc., sec. 1875; 12 Am. & Eng. Ency. of Law, 151, 159, note 2; Bliss on Code Pleading, sec. 177; Stephen’s Pleading, 345, 353, 354; Wilhoit v. Cunningham, 87 Cal. 458; Kraner v. Halsey, 82 Cal. 210; Brown v. Anderson, 77 Cal. 236; Belcher etc. Co. v. Deferrari, 62 Cal. 162; Staude v. Election Commrs., 61 Cal. 313; People ¶. Hagar, 52 Cal. 188; Talbert v. Hopper, 42 Cal. 397; People v. Robinson, 17 Cal. 371.) The state had the authority to make the grant to the city of Oakland. (Shively v. Bowlby, 152 U. S. 1; Taylor v. Underhill, 40 Cal. 473; Kimball v. Macpherson, 46 Cal. 104; Upham v. Hoslcings, 62 Cal. 250; Northern Ry. Co. v. Jordan, 87 Cal. 23; Weber v. Harbor Commrs., 18 Wall. 65, 66.)

Tbe legislative grant to the city of Oakland was for a public use, and was valid; and the authority of the city as a public trustee has never been revoked by the legislature. (Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387; Pollard v. Hagan, 3 How. 212; Shively v. Bowlby, 152 U. S. 1; San Francisco v. Itsell, 80 Cal. 59; People v. Holladay, 93 Cal. 243; 27 Am. St. Rep. 186.)