Guy v. Hermance

5 Cal. 73

Opinion

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

1. The right of the State to lands under water where the tide ebbs and flows, is founded upon her sovereign control over the easement, or right of navigation. Where, therefore, the easement is destroyed, the right of the State ceases, except to prosecute for perpresture, and have the easement restored.

2. The Legislature cannot exercise judicial functions, and therefore cannot except one case, or one party, from the operation of a. general rule of law, either as to right or remedy. That portion therefore of the Act of May, 1853, entitled, “ An Act to provide for the sale of the interest of the State of California in the property within the water line,” &e., which prescribes that no injunction shall be issued against the Commissioners is invalid.

3. The right of a party to have his title to land protected from a sale which might create a cloud upon it, was upheld by this Court in the cases of Smith v. Morse, 2 Cal. 524. Shattuck v. Carson, 2 Cal. 588

Judgment affirmed.