after stating the case as above, delivered the opinion of the court.

As the appellee’s title is deraigned from the grant of lands to'the town of Oakland by the act of May 4, 1852 (St. 1852, p. 180, c. 107), it becomes necessary to ascertain the extent and boundaries of that grant. It was a grant of lands, not coterminous with, but within the limits of, the town of Oakland. Both the limits of the town and the limits of the grant have been determined by the Supreme Court of California in a case in which it became necessary to construe the grant and the boundaries of both the town and the grant. City of Oakland v. Oakland Water Front Co., 118 Cal. 160 , 50 Pac. 277 . The construction placed by that court upon the language of the act of May 4, 1852, and its determination of the questions qf local law involved in that suit, must, of course, be adopted by a federal court in dealing with questions arising under them. This rule is so well established that the citation of authority is unnecessary. Its binding force and its applicability to the present case are admitted by both parties to the controversy. The court in that case held that the southerly line of the San Antonio creek, intended by the act as the southern boundary of the town, was the line of low tide, and not the high-tide line. Said Chief Justice Beatty:

Having determined the southerly boundary of the town, the court approached the question of the westerly boundary, and entered into a discussion of the words “ship channel” as used in the description there *383 of. The question was considered at length in the opinion of the chief justice. The scope of the discussion was premised with the following remarks:

The chief justice considered the contention of both the parties to the cause then under consideration, in which contention both agreed, which was that the “ship channel” referred to in the description of the town limits was the line of three fathoms depth in the bay. This the opinion denominated an assumption that had no tangible basis, and said it was to be rejected, both because it was not a definite line, and because the call for the western boundary is “thence northerly and easterly by the line of ship channel to a point where the same bisects the said northeastern boundary line”; whereas, the three-fathom line does not run northerly and easterly, but runs throughout its whole extent in a uniformly northwesterly direction. After alluding to the fact that there never had been any law establishing a water front or bulkhead line in front of the city of Oakland, the court deduced this conclusion:

The result of the whole discussion was summed up in the opinion as follows:

After defining the boundaries of the town, the opinion of the chief justice proceeds to define the limits of the grant of land to the town, which grant is expressed in the following words:

With reference to this grant, the opinion contains the following carefully considered language:

The attention of the court was directed to the doctrine of the Chicago Water Front Case (Illinois Central Railroad v. Illinois; 146 U. S. 387 , 13 Sup. Ct. 110, 36 L. Ed. 1018 ), with reference to the power of the state to authorize the town to convey submerged lands to private owners, and the opinion proceeds as follows:

■And the chief -justice quoted with approval the language of Judge ' Sanderson in Ward v. Mulford, 32 Cal. 372 , in which it was said;

These expressions of the opinion of the chief justice, concurred in by two other members of the court, and supported by the associate justices especially concurring, render it clear that the majority of the court meant to say that the granted lands were tide lands or shore lands, and no other lands. This is borne out by other expressions of the chief justice in the opinion. He refers to the title under the grant as “private ownership of the shore,” and to the grantee as a “grantee of shore lands,” and again, arguendo, ■ he refused to impute to the Legislature an intention to vest the town council with authority to cut rhe tQlyn off from access to ,the water front, “by a transfer-of the whole strip of shore lands.” , , .

*385 The opinion of the Chief Justice was concurred in without modification or reserve by two others of the members of the court. Mr; Justice McFarland filed a brief concurring opinion, in which he said:

Justice Garoutte also concurred, and said:

Mr. Justice Harrison, with whom concurred Mr. Justice Henshaw, dissented, on the ground that no valid grant of the lands had ever been made. We have, then, the concurrence of five of the members of the court in the decision as to the limits and definition of the boundaries of the town of Oakland and of the grant of lands to the town.

We have here, then, the decision of the Supreme Court of California, deliberately expressed in carefully chosen phrase, that “ship channel,” as the term is used in defining the boundaries of the town, is ordinary low-water mark; that the boundary follows the line of low tide along the south short of San Antonio creek, by the low tide of the bay on the headland south of the mouth of the creek, thence across the navigable water of the estuary to the low-tide headland on the north thereof, and thence northeasterly by the low-tide line of the bay; and that the grant of lands to the town of Oakland is only of the land between high-water mark and ship channel within those boundaries, and includes nothing west of the line of ordinary low tide on the bay front, and nothing beyond the line of ordinary low tide on the north shore of the estuary. These lines are definite and fixed and capable of ascertainment. The lands in controversy in the present suit lie entirely without the limits of the grant to the town as it is thus judicially determined by the court.

But the court below found, in the decision of the Supreme Court of California, a meaning widely variant from this, and reached the conclusion that the line of low tide, which the opinion in that case declared was the line of ship channel, did not mean the line of low tide on the- bay front, but another line lying waterward of low tide, the line of the Unfit of convenient navigation from the bay, a line along the outer edge of a certain bar lying about a mile off the mouth of San Antonio creek, a line which is now approximately marked by the United States bulkhead line. This conclusion was reached upon a consideration of certain expressions which are used in the opinion of Chief Justice Beatty, *386 one of which is the sentence found on page 180 of 118 Cal., page 284 of 50 Pac.: “Ship’s channel comprises the waters left free to navigation.” In this the court below found support for the theory that Chief Justice Beatty meant by the line of low tide the line at which convenient navigation was interrupted at any stage of the tide. The sentence was used in connection with a discussion of the San Francisco beach and water lot act, to which the Chief Justice adverted in search of an analogous use of the term “ship channel.” He found that in that act the expression “line of ship’s channel” had been used. “Now, here,” he said, “we have an indication of the meaning of the term. The water front established by law and ship’s channel are coterminous. The line to which the city may extend its streets and within which it may sell lots and authorize the purchasers to fill them up and occupy them is water front; immediately beyond is ship’s channel.” And the chief justice reached the conclusion that the term “ship’s channel,” so used in the act relating to San Francisco, was intended to include all the navigable waters of the bay outside of the bulkhead line as then established by law. But, proceeding with the discussion, he said :

Nothing could be clearer, we think, than that the opinion directly and entirely rejects the theory of navigability as the test of the position of the line of low tide. In the case of the San Francisco beach and water lot act there was a definitely marked line, a bulkhead line between land and water. That was found to be the line of “ship’s channel,” within the meaning of that act. But, along the water front of the town of Oakland at the time of its incorporation, there was no such line. The only fixed and definite line was the line o"f low tide. This was the line which the Supreme Court of California adopted, and, when the Chief Justice said, “ship’s channel comprises the waters left free to navigation,” he did not mean waters free from obstruction to navigation, but all the waters of the bay proceeding landward to the line of demarcation from the land. We find no warrant for holding that any other line was intended. There was no other line.

„ But the decision of the court below seems to have been principally influenced by the sentence contained in brackets in the following portion of Chief Justice Beatty’s opinion:

The court below, after quoting this language, said:

We are unable to agree with the court below that Judge Beatty intended to find in the intersection of the government bulkhead line with the jetty walls a point of departure for the last call of the description, for there were two of those walls separated by an interval of 800 feet. We understand the opinion of Judge Beatty to mean that the course of the western boundary line of the town running northeasterly from low tide at the southwest corner of the town acros’s the mouth of the estuary is approximately marked by the intersection of the government bulkhead line with the south jetty wall. We know that he had-before him the United States coast survey map of 1859, and it can be seen that on that map, on the scale upon which it is drawn, a line crossing the estuary from the low tide line of the bay on the south side of the estuary, to the corresponding low-tide headland on the opposite side thereof, will pass apparently but a short distance aside of the bulkhead line where that line touches the shoal or bar off the mouth of the estuary. It should be borne in mind that the bracketed sentence so relied upon appears in a portion of the opinion which is addressed to the contention presented by counsel upon both sides of that case that by ship channel was meant the three fathom line in the bay. In answering that contention the chief justice directed attention to the fact that the three-fathom line would never run northwardly and eastwardly according to the call of the last course, but would always and uniformly run in a northwesterly direction. He was not, in that portion of his opinion, attempting to locate the actual position of the line of low tide. It is true, as he said, that from the mouth of the estuary the boundary line runs northerly and easterly. That line is, by operation of law, the low-tide line across the mouth of the estuary. It is not a low-tide line in fact. We cannot find, in this casual, and perhaps inadvertent, expression of the opinion, an intention to modify the whole purport of the decision, elsewhere so clearly and precisely expressed in words carefully chosen, and to declare that it does not mean what its clear import intends, but something entirely at variance therewith. Throughout the whole discussion the chief justice had been in search of a “definite natural boundary,” to.meet the call for the line of ship channel. He found it in the line of low tide, and said: “This is a definite line, and the only definite line beyond the line of high tide.” The line north of the estuary, which was adopted by the court below, is not only not a definite line, but it is not a natural line. Between it and high tide lies the definite natural line of low tide.

The appellee, while admitting that the western boundary of the town *388 of Oakland is as -we have found it, contends that that western boundary is throughout its whole length the line of low tide, and that this is likewise the western boundary of the grant, within the meaning of the decision in the Oakland Water Front Case, locating the granted lands between high and low tide. The appellee’s contention is best exhibited by its map,, which is here inserted:

*389 On that map the line of actual low tide north of the estuary, as it was in 1852, is marked “false line of 1852.” It is admitted that it is the true line of low tide of 1852, as shown by the government maps: but it is said that the true line of low tide as the boundary of the granted lands, as determined by the decision before referred to, is the line running from “D” to “E,” and that this contention is sustained, not only by the opinion of Chief Justice Beatty, but by the decision of other courts, citing Knight v. U. S. Land Association, 142 U. S. 161 , 12 Sup. Ct. 258, 35 L. Ed. 974 , and San Francisco v. Le Roy, 138 U. S. 656 , 11 Sup. Ct. 364, 34 L. Ed. 1096 . This is claimed by virtue of a rule of surveying, which is thus stated by Justice Field in his concurring opinion, in Knight v. U. S. Land Association:

This is the established rule of surveying applicable to affluents or other waters which interrupt a tide line adopted as a boundary. The rule is to draw the line between the nearest points of land on each side of the interruption in continuation of the general outline. But the line crossing such intervening water, while a true boundary line, is not in any sense in itself a tide line, but a projection thereof.

Nor do we find anything in the opinion in the Oakland Water Front Case to sustain the appellee’s contention. It is said, in its brief, that:

It is true that Judge Beatty, in locating the south line of the town, held that the line was to be carried across from headland to headland at the mouth of the Brooklyn Basin, hut that is not to say that the tide line itself crossed the water of that basin. . What he said was that:

He thus expressly recognized an interruption in the tide line. It is obvious that the line of measurement and location of a tide line, when adopted as a boundary may, at points of interruption, be very different from the line of actual tide. It was not a theoretical but the actual low-tide line which was adopted by the court in the Oakland Water Front Case as the boundary of the granted lands. This is made too clear to admit of question. When the chief justice had traced the southern boundary to the headland, which is marked “D” on the appellee’s map, he carried it across the intervening navigable water to the opposite headland, marked “E.” This line he found to substantially mark the mouth of the estuary, and it is very clear from his opinion that he considered that the estuary itself continued westward to this point. In speaking of the navigability of the estuary, he said:

*390 'Judge Beatty considered that the estuary extended westward at least as far. as the western boundary of the town, and, in defining the grant to Oakland as, lands including nothing, west of the line of low tide on the- bay front, and nothing beyond the line of low tide on the north and: west shore of the estuary, he said:

•:*It- is contended that, in any view of the proper position of the line of ship channel, the appellee -has the right to wharf out to deep water over- the tide lands-which it owns, and that that right is so exclusive in its nature as to justify the court below in enjoining' the appellant from occupying the strip of land immediately adjoining the north jetty ánd between the United States bulkhead line and the pierhead line., The rights'of littoral owners in adjacent navigable waters'depend on the local laws of the several states, subject to the paramount authority of the United -States to protect navigation and to make improvements ifi aid of the 'same. It may be said, in general, that such owners have the right of access to the channel or navigable part of adjacent waters, unless prevented by improvements made under the constitutional authority vested in Congress. But the question .of the right of access, strictly so-called,'is not necessarily here involved. The right which the appellee claims, and which was accorded it by the court below, is the right- to wharf out to navigable water. At common law no such right attached to the owner of shore lands. Gould on Waters, § 167; Yates v. Milwaukee, 10 Wall. 497 , 19 L. Ed. 984 ; Weber v. Harbor Commissioners, 18 Wall. 57 , 21 L. Ed. 798 ; Hedges v. West Shore R. R. Co., 150 N. Y. 150 , 44 N. E. 691 , 55 Am. St. Rep. 660 . Said the Supreme Court of California, in Dana v. Jackson St. Wharf Co., 31 Cal. 118 , 89 Am. Dec. 164 :

. The appellee has - not acquired the right to wharf out, under the general statute of California, providing for the exercise of that right, and its right so to do must depend upon the construction of its title through Carpentier, under the grant made to Carpentier from the town óf Oaklánd, and the subsequent act of the Legislature affirming the same. .

! .What was.-th,e'act of May 4, 1852? Its title is of significance in construing its intent and purpose. It was “An act to incorporate the town -of Oakland and to provide for the construction of wharves thereat.” , The grant of lands which it contains, therefore, must have béen ma.de'in aid of, the general purpose mentioned in the title, and -it is so expressly declared. The first section of the act creates the town and defines its boundaries. The second section (page 181) provides for a board of trustees,, The.third section gives to the board power to tfiake, regulate, and keep in, repair'all.wharves, docks, pier'l, and slips,ana..also, authorizes- the construction of the same, and proceeds with these words:

There is undoubtedly implied in this grant, when read with the titles “to provide for the construction of wharves thereat,” the right to project wharves into the bay, whether within or without the corporate limits of the town, for the purpose of reaching navigable water. Said the court, in Langdon v. Mayor, 93 N. Y. 129 -151:

It was in aid of this grant of the right to construct wharves that the land between high tide and ship channel was granted and released to the town, since access to deep water could only be had by passing-over the intermediate tide lands. The express grant of authority to the town to construct wharves is the full expression of the legislative will as to that authority, and it implies the exclusion of any such authority as incident to the grant of the lands which the act expressly said was made to facilitate the exercise of.the power to wharf out. Lt is not to be presumed that the Legislature intended, by making the subsidiary grant of lands, to grant therewith by inference or by implication a right which had already been granted and defined in express terms.

The town, having received this right to construct wharves, and the grant in aid thereof, adopted an ordinance for the disposal of the water front and for the construction of wharves. This ordinance gave to Carpentier for the period of 37 years “the exclusive right and privilege of constructing wharves, piers and docks at any points within the corporate limits of the town of Oakland with the right of collecting wharf-age,” etc. Section 3 of the ordinance provides:

In this ordinance is granted to Carpentier the exclusive right to construct wharves at any points within the corporate limits of the town, and in addition thereto, in a separate section of the ordinance, there is a grant of lands between high-water mark and ship channel within the town. The rights so granted are so plain and well defined as to require no construction, and there would be but little room for discussion as to Carpentier’s rights, were it not for the confirmatory ordinance of August 37, 1853, on which the appellee relies for its contention that the town granted to Carpentier the exclusive right in perpetuity of constructing wharves on the water front of the town. That ordinance was passed upon the substantial performance on the part of Carpentier *392 of' the obligations which he had assumed as conditions ■ of the grant. Section 4 of that ordinance is as follows:

As we construe this ordinance, its effect is to ratify the previous ordinance, and nothing more. It ratifies the grant of an exclusive wharfing privilege for the term of 37 years. It ratifies the conveyance of land which had already been granted in fee simple. It adds, however, to the grant of the lands, “the right to erect wharves, piers, docks and buildings at any points thereon not obstructing navigation.” What was the purpose, and what is the effect, of these words? The land having been granted in fee simple, the grant of. a right to erect wharves and buildings thereon could add nothing to the rights which went with the fee-simple title. It is not to be presumed that the ratifying ordinance was intended to convey any further grant than the prior ordinance. There was no consideration for any such further grant. It must be clear to any one who reads the record of these ordinances, and the litigation which has followed, that the trustees of the town of Oakland and Carpentier at all times supposed that the waterward limit of the grant of lands was a practicable ship channel, and that it included land lying under the waters of the bay. The town had granted to Carpentier the exclusive right to erect wharves, piers, and docks at any points within the corporate limits of the town, and in this ordinance of 1853 the trustees declared their intention to give him the right to erect wharves and buildings on the granted lands, with the restriction that he should not thereby obstruct navigation. It would seem that the expression of the right to erect such wharves and buildings on the granted lands was set forth, not for the purpose of enlargingthe prior grant, but for the purpose of so restricting the right to construct buildings and wharves thereon that navigation should not be obstructed. When the Supreme Court of California, by the decision in the Oakland Water Front Case, curtailed the grant of lands to the line of low tide, it necessarily therewith curtailed the expressed right of erecting wharves and buildings which were by the ordinance of 1853 permitted to be placed only on the granted lands. To say that the ordinance of 1853 changed the grant of an exclusive privilege, which was. limited to 37 years, into an exclusive privilege in perpetuity, is to say that the latter ordinance ratified only a portion of the former, and that it vastly enlarged the prior grant by nullifying the limitation as to the duration of the privilege. There is a principle of construction which is applicable, here. Said the court, in the Chicago Water Front Case, 146 U. S. 468 , 13 Sup. Ct. 124, 36 L. Ed. 1018 :

*0

*393 In the Oakland Water Front Case, Chief Justice Beatty said:

In that case Chief Justice Beatty, discussing the question of the validity of these ordinances of the town of Oakland, said:

This conclusion was concurred in by the majority of the court. The majority of the court held also that the legislative action of March 21, 1868, and the compromise ordinance of April 1, 1868, validated those void ordinances and deed. Turning to the compromise ordinance, we find that it ordains that the controversies which had theretofore existed between the city of Oakland and Carpentier and his assigns, relating to the validity and effect of the ordinance of 1852 and the conveyance executed by Marier, as the president of the board of trustees, also the ordinance of August 27, 1853, wherein and whereby the said first-mentioned ordinance was in all things ratified and confirmed and the said water front again granted, sold, and conveyed to the said Carpentier in fee simple forever, “are hereby confirmed, sdtled and adjusted, and the said above-mentioned ordinances and conveyances are made valid, binding, ratified and confirmed.” This defines the scope of the ordinance of 1853, and declares that thereby the said water front was again granted, sold, and conveyed, thus recognizing the intention of that ordinance to be merely to grant again and confirm rights already granted. If we are right in this construction of the ordinances, as vivified by the compromise ordinance of 1868, the wharfing privilege granted to Carpentier in 1852 is not now vested the appellee, but it has long since expired, and has reverted to the city of Oakland, as the successor of the original town of Oakland.

The appellee contends that, at and before the commencement of the Suit, it was in the actual, open, notorious, adverse, and exclusive possession of the strip of land which is here in controversy. It claims that it had such possession under two conveyances; the first a deed of date October 31, 1892, which conveys the tract designated as “S. P. C. Co. No. 1” on the map which is found in the opinion of the court below, and which is here adopted.

The description in that deed is of a tract bounded on the northwest by a diagonal line running from the corner marked “3,” south 60° 08' west to the middle of ship channel; thence easterly along the middle .line of ship channel to its intersection with the westernmost boundary line (produced southerly) of the 59-acre tract, conveyed to *394 the Central Pacific Railroad Company by the Oakland Water Front Company by deed dated May 3, 1878. This description locates the south line of the tract on a line running east and west midway between the north training wall and the south training wall. The second deed is of date January 8, 1903. It conveys all of the real property owned by the Oakland Water Front Company within the boundaries of a tract bounded on the north by the 319-acre tract, which had theretofore been conveyed to the Central Pacific Railroad Company, marked on the map “Oakland Mole and Long Wharf Tract,” on the east and south by the Peralta grant land and by the diagonal line mentioned as the northwest boundary of the tract'marked “S. P. C. Co. No. 1,” on the south by the north training wall of the San Antonio estuary, and on the west, by ship’s channel of the bay of San Francisco.

It is evident that this latter deed could give no color of title to any land westward or southward of the'line of the land actually owned by the Oakland Water Front Company. While the appellee does not contend that it was in the actual physical occupancy of these lands, it urges that the lands so described in these conveyances were inclosed, and that thereby the appellee had possession of the tract in dispute at the time when the appellant committed the acts which are complained of in the bill. The contention is that the land was inclosed on the south by the north training wall, on the north by the Oakland Mole, on the east by the upland and the Peralta Street Slip, both of which were held and occupied by the appellee, and on the west by the waters of the bay. Was this an inclosure, within the meaning of section 323 of the Code of Civil Procedure of California, which declares that land shall be deemed to be possessed and occupied “where it has been protected by a substantial inclosure”? It is not disputed that there was no fence or wall or any mark of an inclosure along the diagonal line between these two tracts, but deeming, as we may, the two tracts one when dealing with' the question of their inclosure, was the whole tract within or protected by a substantial inclosure?

We find no ground for holding that the Oakland Mole is an inclosing wall or structure. It would convey-no such idea to an observer. It is a structure extending a long distance into the bay made solely for the transit of trains to and from ferry boats at deep water. The north training wall of the San Antonio estuary was made, not by the appellee or its predecessors in interest, but by the United States govern- • ment for the purpose of' improving navigation in the estuary. It was not intended as an inclosing wall, and there is nothing to show that it was ever used or claimed as such. Here, then, was a tract 2,000 feet in width, lying between these two structures, which projected out into the bay. There was nothing visible to indicate an inclosure on either the east or the west end, save the open waters of the bay, on the west, and the appellee’s railroad tracks, on the east. It is not to be denied that, if there had been a fence or inclosing wall on three sides of the tract, the water of the bay would serve therewith to constitute an inclosure. The possession of the appellee of the upland for its tracks and trains, and its possession of the Peralta Street Slip, suggested no occupation of the government’s north training wall or adoption of the same-as an inclosing structure.

*395 The appellee relics on Conroy v. Duane, 45 Cal. 597 . In that case the plaintiff's grantor had built a fence entirely around the premises claimed, the east side of which was located in the mud flats of the bay. The fence on that side was destroyed by a gale. The plaintiff had prepared to rebuild it, and for that purpose had deposited there a load of lumber. Speaking of the original fence, the court said:

The court then referred to the fact that' the land was a salt marsh covered at high tide with water to a depth of two feet, inclosed on three sides by a substantial fence, and on the fourth side by the bay or mud flat, over which cattle could not cross, and reached the conclusion that there could be no doubt that it was a substantial inclosure sufficient to establish actual possession of the premises.

The distinction between that case and the present case scarcely needs to be pointed out. Here was a large tract fronting on the bay, north of which was a structure not a fence, not made or used for an inclosure, on the south a similar structure made by the government for the improvement or navigation, on the east a line of railroad tracks showing actual occupation of the ground on which they were placed, but suggesting no occupation to the west thereof, and on the west the open v,raters of the bay. We hold that this was not an inclosure, within cither the meaning of the Code of Civil Procedure of California or the general law, which would be applicable in the absence of a statute. There being no inclosure and no physical occupation of the premises, it must be held that the appellee was not in the possession.

But it is argued that the occupancy of the appellant is a scrambling possession, sustained by force and arms, and that it is not such a possession as to give it any rights. The appellee, in its bill, alleges that the appellant and the American Dredging Company have constructed a bulkhead, commencing at or near the west end of the north training wall, and running thence perpendicularly thereto northerly about 1,000 feet, and thence at right angles easterly toward the shore, parallel to the said training wall about 3,000 feet, and that, at the time of the filing of the bill, said northerly construction parallel to the said north training wall was completed as a bulkhead for about 500 feet with piling driven for 2,500 feet or more additional still to the easterly, and crossing the United States bulkhead line, and that this was done to gain an actual possession and occupation upon the permanently submerged lands in the bay within said strip of 1,000 feet, the same to be used for general railway purposes; that, through the inducement of the appellant, there has been dredged and thrown upon the submerged lands within the inclosure so formed large quantities of earth and sand; that the appellant and said dredging company have been filling and are now filling the same with sand and debris and laying railway tracks thereon, and are now constructing, partly upon the appellee’s lands and partly upon the lands to the west thereof, a railroad track; and that the appellant is maintaining upon the land armed *396 bodies of men in large numbers who patrol said track. It is not alleged that the original entry by the • appellant was with force or violence, or that the appellee, or any one holding under it, was ousted from the actual possession' of the premises in controversy. Under this state of facts, it becomes unnecessary to enter into a discussion of the nature or extent of the appellant’s rights. The question here is one of the nature of the appellee’s rights, since it must prevail, if at all, on the strength of its own title.

Section 1006 of the Civil Code of California provides:

The charter of the city of Oakland, adopted in 1889, imposes upon the city the duty to “grant to any railroad company or corporation applying therefor a franchise to lay and maintain tracks along any line selected by the applicant,” and it contains a similar provision in regard to the duty of granting privileges under certain restrictions, for the construction of wharves, docks, slips, landing places, ferries, warehouses, and other property devoted to public use.

The appellee contends that by accretion the line of low tide, as it existed in 1852, has since that date been extended to the south and west so far as to include, at the present time, all of the land in controversy lying east of the United States bulkhead line, and that the land so added by accretion has become the property of the appellee, even if the limit of its land was originally the low-tide line. The evidence shows that the low-tide line of 1852 remained substantially unchanged until the year 1882, and that about that time changes in its position took place as the result of the deposit of material taken out of the channel on the south side of the north jetty constructed by the authority of the United States, and deposited on the north side thereof in the vicinity of the shoal which lay off the mouth of San Antonio estuary, also from material dredged by the Central Pacific Company, the predecessors of the appellee, in making a ship channel on the south side of the Oakland Mole, a large portion of which was carried in scows and deposited in the vicinity of the United States bulkhead line south and west of Gibbon’s Point. In addition to this a' large amount of dredging was done by private parties and under municipal authority in and about Oakland Harbor, the product of which was deposited in the space between the Oakland Mole and the north jetty. From these combined causes, and perhaps others, the waters of the bay along the shore have been filled, until, at the time of the commencement of the present suit, the line of low tide was as far west as the United States bulkhead line.

“Accretion,” generally speaking, is the product of gradual and imperceptible deposit on the shore, of earth, sand, or sediment, brought by contiguous waters, whether resulting from natural or artificial causes, or both combined. County of St. Clair v. Lovingston, 23 Wall. 46 , 23 L. Ed. 59 . In that case it was said:

*397 The right of the riparian proprietor, which in that case was upheld, was later defined, in Shively v. Bowlby, 152 U. S. 36 , 14 Sup. Ct. 548, 38 L. Ed. 331 , to be “the right to alluvion or increase of the -upland by gradual and imperceptible degrees.”

Was the appellee a riparian proprietor, and did it become the owner by accretion of the land lying between the limit of its original grant and the present line of low tide?

The appellant contends, on the authority of Dana v. Jackson Street Wharf Co., 31 Cal. 118 , 89 Am. Dec. 164 , and Weber v. Harbor Commissioners, 18 Wall. 57 , 21 L. Ed. 798 , that the holder of a water lot on the bay front of San Francisco Bay is not a riparian proprietor. It may be doubted whether the doctrine of those decisions is applicable to the present case, for the land of the appellee herein included nothing under the waters of the bay. The appellant contends, also, that from the evidence in the record it appears that the added land was made by-dredging, and that the deposit of material is therefore not in any proper sense accretion, for the reason that, while the ebb and flow of the tide may have caused its even distribution, the material so deposited was not carried upon the premises by-the water, citing the rule that the doctrine of accretion does not apply to land reclaimed by human agencies. In re Driveway in City of New York, 93 N. Y. Supp. 1107 ; Sage v. Mayor, 154 N. Y. 61 -83, 47 N. E. 1096 , 38 L. R. A. 606, 61 Am. St. Rep. 592 . The appellee, on the other hand, claims to find in the evidence sufficient proof to sustain the theory that the north jetty wall, and the material deposited thereat, formed with the Oakland Mole and the shore an impounding basin, into which material brought into the bay by the Sacramento river was carried and there dejected, thereby producing the greater portion of the deposit. The court below, having placed the boundary line of the granted land as far westward as the United States bulkhead line, found it unnecessary to discuss the question of accretion, and made no finding thereon.

We need not enter into a discussion of the conflicting testimony on this point, for in our opinion the material so deposited in front of the appellee’s land, from whatever source it came, is not alluvion, within the law of the state of California. The Civil Code of California, adopted in 1873, under the caption of “Accession to Real Property,” defines, in section 1014, the right to alluvion, as follows:

Section 4 of the Civil Code provides: “The Code establishes the law of this state respecting the subjects to which it relates.” And it further provides that the rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the Code. Section 1014 covers, therefore, the whole subject of the right to alluvion, and confines it to that which results from natural causes, and to that which is formed on the banks of rivers or streams.

In Louisiana a similar statute, giving the right to accretions only to riparian owners of land “situate on the shore of a-river or other *398 stream,” was held not to recognize any property right in süch accretion when formed on lakes, bays, arms of the sea, or other large bodies of water, and it was held that the modes of acquisition of property were limited to those so expressly prescribed, and could not be extended by implication. Zeller v. Yacht Club, 34 La. Ann. 837 . The appellee argues that there is a material difference between the language-of the Louisiana statute and that of California, that the former is more restrictive, and that the use of the word “other” therein, in connection with the word “river,” suggests that the whole statute must refer to running water. We find no ground for this distinction. In the California statute it is evident that the word “stream” is used in the same sense as river, and as a more comprehensive term. The-primary meaning of stream is “a course of running water, a river, rivulet or brook.” Century Dictionary. “A stream is a river, a brook or rivulet, anything in fact that is liquid and flows in a line or course.” French v. Carhart, 1 N. Y. 107 . “Stream implies a continuous current in one direction.” Murdock v. Stickney, 8 Cush. (Mass.) 118. The appellee cited Fillmore v. Jennings, 78 Cal. 634 , 21 Pac. 536 , in which it was said: “The' case falls exactly within the terms of section 1014 of the Civil Code, which is merely declaratory of the -law as it has always existed.” And it contends that thereby the court held section 1014'to be declaratory of the whole of the common law on the subject of accretion. But' the decision was made with reference to accretion on the bank of a river. It is true, as said by the court, that the section is but declaratory of the law of accretion on the banks of rivers. The court did not say, nor is it implied in what was said, that the section is declaratory of the law of accretion on waters other thán those particularly. mentioned therein.

1 In addition to the statute so enacted iri 1873, as bearing upon this question, is - the constitutional provision found in the Constitution adopted in 1879, in which it is provided, in article 15, § 3, as follows:

By the act of the Legislature of March 8, 1901, section 1014 of the Civil Code was amended by inserting therein after the word “stream” the words “or other water” (St. 1901, p. 395, c. 157); but, in Lewis v. Dunne, 134 Cal. 291 , 66 Pac. 478 , 55 L. R. A. 833, 86 Am. St. Rep. 257 , the act was held to have been unconstitutionally adopted..

'But it is said that the predecessors in interest of the appellee had a vested right’to "future alluvion, acquired'before the adoption of the provision of the Civil Code above quoted and before the adoption of the present Constitution, a right to all alluvion that might, be deposited upon its shore land in ail time to come, and that this right is sustained by the dictum of the court in County of St. Clair v. Lovingston, 23 Wall. 46 , 23 L. Ed. 59 . In the course of the opinion in that case, it was said: •: “The- riparian right to future alluvion-is a-vested right. Is is an inherent essential attribute of the original property.” -The controversy-in that case did- not even-remotely relate to the. *399 right to future alluvion, but related only to alluvion then existing. We cannot think that the court meant to announce the doctrine that the right to alluvion becomes a vested right before such alluvion actually exists. The language so used was quoted from the language, also obit-er, of Bullard, J., in Municipality No. 2 v. Orleans Cotton Press, 18 La. 122 , 36 Am. Dec. 624 , in which it was said, in substance, that, if the Legislature had attempted to declare that thereafter owners of tracts of land fronting on a river should no longer be entitled to any alluvion which might be formed, such act would be held unconstitutional, on the ground that the right to future alluvion is vested.

In Pearsall v. Great Northern Ry. Co., 161 U. S. 646 -673, 16 Sup. Ct. 705, 40 L. Ed. 838 , the court quoted with approval from Cooley’s Principles of Constitutional Law, 332, as follows:

Within that definition of vested rights, there can be no question,, we think, that the right to future possible accretion could be divested by legislative action. To say that one who acquires from the state title to tide lands acquires therewith a vested right to all possible future accretion is to impose a restriction on the power of the state to occupy or improve for the public benefit the adjacent submerged lands. Said the Supreme Court of Washington, in Eisenbach v. Hatfield, 2 Wash. 236 -250, 26 Pac. 539 , 12 L. R. A. 632:

The Supreme Court of Iowa, by its decision in Chicago, Burlington & Quincy Ry. Co. v. Porter Bros. & Hackworth, 72 Iowa, 426 , 34 N. W. 286 , in effect denied that the right to future accretion is a vested right. In that case the railroad company, under a statute of the state authorizing it to occupy without payment of damages any of the state lands, had constructed its railroad along the Mississippi river below the ordinary high-water mark. The defendants were owners of.the land bounded by the river. The court said:

*400 In Sage v. Mayor, 154 N. Y. 61 , 47 N. E. 1096 , 38 L. R. A. 606, 61 Am. St. Rep. 592 , it was held, that, in every grant of lands hounded by navigable waters made by the government or by the state as trustee for the public, there is reserved by implication .the right to improve the water front in aid of navigation for the public benefit without compensation to the riparian proprietor, and the decision in Shively v. Bowlby, 152 U. S. 1 , 14 Sup. Ct. 548, 38 L. Ed. 331 , sustains the power of a state to cut off, without compensation, the right of a riparian proprietor to future accretion. We know of no decision in which this doctrine has been questioned. If it is within the -power of the state to thus appropriate and improve tide land or submerged land in front of. a riparian proprietor, and thus deprive him of the right to future accretion, what tenable ground is there for saying that the state may not by a statute accomplish the same result, and for holding that the state of California by its statute of 1872 could not lawfully make provision, as it did, that the limits of lands owned by riparian proprietors of bays and arms of the sea could not be extended over the lands then held by the state in trust for the public by virtue of any accretion that might thereafter be deposited thereon?

We are of the opinion, moreover, that the grant made by the state to the town of Oakland in 1852 was intended to have fixed and permanent boundaries. The question whether a boundary of granted lands is to be fixed or shifting is often one of intention, to be ascertained by reference to the nature and purpose of the grant and the attendant circumstances. Scratton v. Brown, 4 Barn. & Cress. 485. In Trustees of East Hampton v. Kirk, 84 N. Y. 215 , 38 Am. Rep. 505 , it was said:

. The policy of the. Legislature of the state of California with reference to proprietory rights in the tide lands and flats on the bay of San Francisco had been indicated by its act of the year 1851, known as the “Beach and Water Lots Act,”' enacted for the purpose of establishing a water front for San Francisco, and adopting a line which defined the limit to which streets might be extended and lots and blocks laid out and sold. The title of the act in which the land was granted by the state to the town of Oakland is “An act to incorporate the town of Oakland and to provide for the construction of wharves thereat.” In this expressed purpose, we may find evidence of the intention of the Législature to fix a definite water front line. Said Chief Justice Beatty, in the Oakland Water Front Case:

' The. state .at,the time of ma,king the grant .held the title to all the lands lying below the line of low tide.

*401 The Supreme Court, in Gunter v. Geary, 1 Cal. 462 , said: “Below low tide is a public highway common to all citizens.” In Jones v. Soulard, 24 How. 41 , 16 L. Ed. 604 , the question arose as to the right of the city of St. Eouis to accretion in the Mississippi river. The court, while sustaining that right, based it expressly upon its construction of the boundary line of the city, which it held was the middle thread of the Mississippi river, and held that up to that line the city was the owner, of land created by accretion. In Indiana v. Kentucky, 136 U. S. 479 , 10 Sup. Ct. 1051, 34 L. Ed. 329 , it was held that the dominion and jurisdiction of a state bounded by a river continue as they existed at the time when it was admitted into the Union, unaffected by the action of the forces of nature upon the course of the riven The court said:

In Shively v. Bowlby, a case in which a donation land claimant had, while Oregon was still a territory, obtained title to land fronting on the Columbia river the court expressly recognized that it was within the power of Congress, if it had chosen to do so, to grant to such settler land-below high-water mark, but found reason for holding that it was not the intention of Congress to grant such right, in the general policy of the government to hold tide lands in trust for the future state.

Applicable to this question are the remarks of Mr. Justice Field, in Weber v. Harbor Commissioners:

It would he subversive of the policy of the state, and the purpose for which its title in lands below low tide is vested, to hold that the corporate lines of the town of Oakland, a political subdivision of the state, and the grant of lands expressly declared to be within those limits, are not permanent, but shifting, boundaries incapable of definite ascertainment at any time. “Because,” says Dillon, “the local juris *402 •diction of the incorporated place is- in most cases confined to the limits of the incorporation, it is necessary that these limits be definitely fixed.” ■ 1 Dillon on Municipal Corporations, 182.

■ Upon the issues and the evidence, and the law applicable thereto, it is our judgment that the court below was in error in ordering the injunction pendente lite in favor of the appellee.

The decree is reversed, and the cause is remanded for further proceedings not inconsistent with the foregoing opinion,