Dean v. City of San Diego

GILBERT, Circuit Judge (after stating the facts as above). The deed to the appellant purports to convey all the right, title, interest, estate, and claim of the city in the property described therein “as fully and absolutely as we, the said president and trustees, may or can *971 by virtue of the power in us vested convey the same.” The appellant asserts that the appellee is estopped to deny the title thus conveyed, for the reason that the conveyance to the appellant is a deed of bargain and sale, and not a mere quitclaim. It is not important to discuss the nature of the conveyance, further than to say that it contains no covenant of seisin or warranty. The fundamental fact which determines the controversy is that the city had no title to the premises in dispute at the time when the deed was made to the appellant and has acquired none since that date. The patent from the United States to the city of San Diego conveys hone of the property in controversy, nor does the act'of the Legislature of California (St. 1911, p. 1357) confer upon the city any title thereto. While that statute vests in the city the right to. make upon the lands beneath the waters of San Diego Bay improvements and structures for the development of commerce, navigation, and fishing, it expressly provides that no grant, conveyance, or transfer of any character shall ever be made by the city of the lands therein described, and requires the city to continue to hold said lands unless the same revert or be re-ceded to the state. No estoppel can relieve the city of its obligation to obey the law, or operate to vest in the appellant an estate in violation of the law. There can be no decree quieting title in a suit by a grantee as against his grantor in a case, where the latter never conveyed title to the grantee and never acquired title to the land described in the conveyance. In Williams v. City of San Pedro, 153 Cal. 44 , 94 Pac. 234 , the question of the right of cities to tidelands in the state of California was determined. The court held that all tidelands within any incorporated city or town, other than San Francisco or Oakland, are excluded from the operation of the laws of the state which authorize the sale of lands. The court used words that are applicable to the present case: “It is elementary that a plaintiff in an action to quiet title cannot prevail, unless he shows title in himself. If he has no title, he cannot complain that some one else, also without title, asserts an interest in the land.” The decree is affirmed. HUNT, Circuit Judge, dissents.