Opinion
September Term, 1901.
Isaac P. Coale, for the relator.
John C. Davies, Attorney-General, and Henry B. Coman, Deputy Attorney-General, for the respondents.
The question of the title of the State to the land under water, for which a grant was here applied for, cannot be tried in the first instance in this appellate court, nor can it be tried by the land board, for that board of State officials is not a court having jurisdiction to try and determine such questions. The State has never submitted its land titles to the final determination of such a tribunal. Nor has the Legislature constitutional power to create a court of this character and force other contestants of the title to submit here their rights for adjudication. The Commissioners of the Land Office are simply agents of the State. They have power to grant to the owners of the uplands such rights as the State may possess in the lands under water bordering on such uplands, and that is all. As incidental to the exercise of that power, the land board must determine, as between opposing claimants to the uplands, who is the actual owner in order to keep within their power to grant such title as the State may have to the water front, only to the actual owner of the upland. Nor do I think the conclusion of the land board in this respect res adjudicata as to the title to the upland between such opposing claimants. Such title can be settled only in a constitutional court, but for the purposes of the grant of the water front it is incumbent on the land board to investigate and satisfy itself as to the ownership of the abutting upland in order to enable the board to act with reasonable certainty in compliance with the statutory injunction to grant the water front only to such owner, but should it subsequently be determined by a proper court that the title to the upland was not in the grantee of the water front, without doubt such grant would be void because of the statutory prohibition. While this implied power to investigate and discover the real owner of the upland is obviously in the Commissioners of the Land Office, to enable them to reasonably comply with the statute in making a grant of the title of the State to the water front, the implication by no means follows of any power in the Commissioners of the Land Office to determine the title of the State to the water front or the land under water when a claim of adverse ownership is made thereto. Such a determination is wholly unnecessary to the exercise of the functions with which the Legislature has endowed them, viz., to grant such title as the State may possess in the water front to the upland owner. Such a grant determines no title as to the land under water. While the adverse claimant to such lands may not as plaintiff litigate with the State because the State has not in this matter created any tribunal in which to litigate, still the claimant may as plaintiff bring an action against the grantee and litigate the title in any constitutional court into which individuals have a right to go. It seems to me very plain that the decision of the land office to grant such title as the State may possess to the land under water to the grantee Brightson in the case here considered determined nothing touching such title. They had no power to determine the title. No such power is given them by statute and none is implied or necessary to the discharge of their functions. They have no right to assume such a power or subject the title of the State to their decision, nor could the plaintiff here be in any manner affected by their decision. The purpose of giving plaintiff and all others notice of the Brightson application was solely to enable the commissioners to determine title to the upland and to determine also how commerce or the rights of others might be affected, and the facts so elicited bear only upon the discretion of the land board in granting or withholding the patent. This being so, the plaintiff has no grievance which this writ is intended to redress.
The Code of Civil Procedure (§ 2122) provides that a writ of certiorari cannot be issued "to review a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed." Section 2127 provides: "An application for the writ must be made by or in behalf of a person aggrieved by the determination to be reviewed." What rights have been finally determined here by this inferior tribunal? Who is aggrieved by the determination? Who are the parties? If there has been any determination of rights to the land under water, obviously the State is an interested party. Who represents the State and under what name does the State here appear? It cannot be said that the Commissioners of the Land Office represent the State, for they constitute the tribunal which it is claimed has determined these rights. It is plain that the State did not and could not appear before that tribunal, nor does it appear in this court. How then can it be said that the rights of the State to this land under water have been finally determined? If the rights of the State were not then finally determined neither were the rights of the plaintiff, and the plaintiff is not a party aggrieved by any determination of the land board.
This question of title to the lands under water must be relegated to the courts organized and empowered to hear and with the aid of a jury to determine such questions, upon common-law proof, in the usual way. The grant to Brightson simplifies the situation and makes it possible for the plaintiff to reach a determination concerning the title which will be a final and binding determination.
The writ should be dismissed, with fifty dollars costs and disbursements.
All concurred.
Writ dismissed, with fifty dollars costs and disbursements.