By the Court, Shafter, J.:
Action to recover damages for breaking and entering the plaintiff’s close. The defendants denied all the allegations of the complaint, and further defended on the ground that the locus in quo was the property of the Forth San Francisco Homestead and Railroad Association, a corporation formed under the laws of California, and that they, the defendants, performed the acts complained of as the agents and servants of said company. The appeal is by the plaintiff and is taken from the judgment and order denying a new trial.
First—For the purpose of proving the corporate existence of the company, the defendants offered in evidence an instru[361]*361ment purporting to be a certificate of incorporation of the North San Francisco Homestead and Railroad Association, signed and sealed by five persons only. The incorporation purported to be for twenty-five years. The plaintiff objected to the admissibility of the document, on the ground that five persons could not, by law, incorporate for homestead purposes, nor for a longer time than five years. The objection was overruled, and the plaintiff excepted.
There was no error in the ruling available to the plaintiff. The opening testimony of the plaintiff tended to prove that the company w'as a corporation defacto, and that evidence not only dispensed with the necessity of strict proof of the corporate character, but precluded the plaintiff from inquiring into or disputing it. Such inquiry could be had only at the suit of the State or on information by the Attorney-General. (Hittell, Art. 751.)
Second—To prove title in the corporation to the locus in quo, the defendants gave in evidence a special Act of the Legislature, entitled “ An Act to authorize the sale and conveyance to the North San Francisco Homestead and Railroad Association of certain overflowed lands in the City and County of San Francisco,” approved April 4, 1864 (Laws 1864, p. 482,) and then offered in evidence a patent of the State of California, dated June 23, 1864, purporting to be based upon the Act. Objection was taken by the plaintiff, on the ground that the patent “ was void on its face and professed to grant lands not authorized by the Act.” The patent was received and read to the jury, under the plaintiff’s objection, and “ subject to all objections as to its effect.” At a later stage in the trial the counsel of the plaintiff moved that the patent be stricken from the evidence, on the ground, “First—That it does not commence where the Act of April 4,1864, authorized it to commence; Second—That it embraced on its face lands not authorized to be granted by the statute; Third—That it not only takes land above the ordinary high water mark, but [362]*362extends out beyond six feet deep at low water.” The motion was denied and the plaintiff excepted.
It is settled by the decisions in this State, that if a patent . be void upon its face it may be assailed at any time and in all cases; for it is itself in such case record evidence of the matters which render it a nullity. And it is also settled, if a patent show upon its face that it was issued in the absence of legislation directing a disposition of the property described, that a case will be made out within the principle. Such patent may therefore be collaterally attacked in any action by any party interested to dispute its validity. (Doll v. Meador, 16 Cal. 297; Terry v. Megerle, 24 Cal. 624; People v. Stratton, 25 Cal. 251.) The learned counsel for the respondents dispute neither the correctness nor the conclusiveness of these judgments. The only point made by them in answer to the objection is, that the sale was not in any degree ultra vires on the face of the patent. We consider however that the second ground assigned by the plaintiff in support of his general objection to the admissibility of the patent in question to have been well taken as to the marsh lands included therein.
The only legislative warrant for the sale of State lands to the defendant is found in the special Act of 1864, upon which the patent purports to be based. The lands to be sold and conveyed to the company are described in the title of' the Act as “ certain overflowed lands in the City and County of San Francisco.” This description is vague and imperfect, but it is rendered sufficiently precise by a further description contained in the body of the Act. The lands are there described as lands “ belonging to the State in front of lands of said association in the northerly portion of the City and County of San Francisco, west of Buchanan street.” So far the description throws no light upon the quality of the land to be sold and conveyed, nor upon the nature or origin of the State’s title to it. But the description proceeds: “ Commencing at the northerly boundary of the lands of said association at high water mark on said Buchanan street, and exten ding to a distance north where the water is not exceed[363]*363ing six feet deep at low water along the entire front of the land of said association upon said northerly boundary thereof; and extending westerly to said reservation ; provided, that in no case shall it extend to a depth of water exceeding six feet at the lowest stage of the tide, nor interfere with the water front of the adjoining property.” It is claimed by the counsel of the plaintiff that this description is applicable, and applicable only to lands owned by the State by reason of its sovereignty; that is to say, lands below ordinary high water. (People v. Morrill, 26 Cal. 336.) And such we consider to be the clear result of the description on its face. The point of beginning is at “ high water marie in the northerly boundary of lands belonging to the association.” High water mark, in the absence of all statements to the contrary, must be intended to mean “ ordinary high water mark;” the point at which the sovereign ownership of the State begins. The line extends thence to the north—not landward, but seaward—to a point “ where the water is not exceeding six feet deep at low water.” From that point the line turns west and runs under the water at the depth of six feet at the lowest stage of the tide along the entire “ front ” of the lands, in the northerly boundary of which, one point, at least, is touched by ordinary high water. And we consider that it must be understood, from the description, that that boundary coincides with the line of ordinary high water throughout its entire length. The term “front” applied to that line,.indicates such general coincidence; and so does the fact already named, that one point in the line is expressly put at high water; but the provision that the line drawn to the west under water, not exceeding six feet in depth, shall not “ interfere with the water front of the adjoining property” demonstrates it. The adjoining property here alluded to must be the “ land of the association ” previously named, and along or over against whose entire “front” the water boundary of the patented lands is drawn. It must be understood that the front first alluded to is identical with the front last alluded to and distinguished as “water’’front— that is, the line, prima facie, of ordinary high water. The [364]*364result is, that the land embraced in the offer to sell, is, according to the statute description of it, all under water at ordinary high tide, and belonged to the State by reason of its sovereignty.
Row as to the patent; there are two descriptions given in it of the lands which it purports to convey.
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By the Court, Shafter, J.:
Action to recover damages for breaking and entering the plaintiff’s close. The defendants denied all the allegations of the complaint, and further defended on the ground that the locus in quo was the property of the Forth San Francisco Homestead and Railroad Association, a corporation formed under the laws of California, and that they, the defendants, performed the acts complained of as the agents and servants of said company. The appeal is by the plaintiff and is taken from the judgment and order denying a new trial.
First—For the purpose of proving the corporate existence of the company, the defendants offered in evidence an instru[361]*361ment purporting to be a certificate of incorporation of the North San Francisco Homestead and Railroad Association, signed and sealed by five persons only. The incorporation purported to be for twenty-five years. The plaintiff objected to the admissibility of the document, on the ground that five persons could not, by law, incorporate for homestead purposes, nor for a longer time than five years. The objection was overruled, and the plaintiff excepted.
There was no error in the ruling available to the plaintiff. The opening testimony of the plaintiff tended to prove that the company w'as a corporation defacto, and that evidence not only dispensed with the necessity of strict proof of the corporate character, but precluded the plaintiff from inquiring into or disputing it. Such inquiry could be had only at the suit of the State or on information by the Attorney-General. (Hittell, Art. 751.)
Second—To prove title in the corporation to the locus in quo, the defendants gave in evidence a special Act of the Legislature, entitled “ An Act to authorize the sale and conveyance to the North San Francisco Homestead and Railroad Association of certain overflowed lands in the City and County of San Francisco,” approved April 4, 1864 (Laws 1864, p. 482,) and then offered in evidence a patent of the State of California, dated June 23, 1864, purporting to be based upon the Act. Objection was taken by the plaintiff, on the ground that the patent “ was void on its face and professed to grant lands not authorized by the Act.” The patent was received and read to the jury, under the plaintiff’s objection, and “ subject to all objections as to its effect.” At a later stage in the trial the counsel of the plaintiff moved that the patent be stricken from the evidence, on the ground, “First—That it does not commence where the Act of April 4,1864, authorized it to commence; Second—That it embraced on its face lands not authorized to be granted by the statute; Third—That it not only takes land above the ordinary high water mark, but [362]*362extends out beyond six feet deep at low water.” The motion was denied and the plaintiff excepted.
It is settled by the decisions in this State, that if a patent . be void upon its face it may be assailed at any time and in all cases; for it is itself in such case record evidence of the matters which render it a nullity. And it is also settled, if a patent show upon its face that it was issued in the absence of legislation directing a disposition of the property described, that a case will be made out within the principle. Such patent may therefore be collaterally attacked in any action by any party interested to dispute its validity. (Doll v. Meador, 16 Cal. 297; Terry v. Megerle, 24 Cal. 624; People v. Stratton, 25 Cal. 251.) The learned counsel for the respondents dispute neither the correctness nor the conclusiveness of these judgments. The only point made by them in answer to the objection is, that the sale was not in any degree ultra vires on the face of the patent. We consider however that the second ground assigned by the plaintiff in support of his general objection to the admissibility of the patent in question to have been well taken as to the marsh lands included therein.
The only legislative warrant for the sale of State lands to the defendant is found in the special Act of 1864, upon which the patent purports to be based. The lands to be sold and conveyed to the company are described in the title of' the Act as “ certain overflowed lands in the City and County of San Francisco.” This description is vague and imperfect, but it is rendered sufficiently precise by a further description contained in the body of the Act. The lands are there described as lands “ belonging to the State in front of lands of said association in the northerly portion of the City and County of San Francisco, west of Buchanan street.” So far the description throws no light upon the quality of the land to be sold and conveyed, nor upon the nature or origin of the State’s title to it. But the description proceeds: “ Commencing at the northerly boundary of the lands of said association at high water mark on said Buchanan street, and exten ding to a distance north where the water is not exceed[363]*363ing six feet deep at low water along the entire front of the land of said association upon said northerly boundary thereof; and extending westerly to said reservation ; provided, that in no case shall it extend to a depth of water exceeding six feet at the lowest stage of the tide, nor interfere with the water front of the adjoining property.” It is claimed by the counsel of the plaintiff that this description is applicable, and applicable only to lands owned by the State by reason of its sovereignty; that is to say, lands below ordinary high water. (People v. Morrill, 26 Cal. 336.) And such we consider to be the clear result of the description on its face. The point of beginning is at “ high water marie in the northerly boundary of lands belonging to the association.” High water mark, in the absence of all statements to the contrary, must be intended to mean “ ordinary high water mark;” the point at which the sovereign ownership of the State begins. The line extends thence to the north—not landward, but seaward—to a point “ where the water is not exceeding six feet deep at low water.” From that point the line turns west and runs under the water at the depth of six feet at the lowest stage of the tide along the entire “ front ” of the lands, in the northerly boundary of which, one point, at least, is touched by ordinary high water. And we consider that it must be understood, from the description, that that boundary coincides with the line of ordinary high water throughout its entire length. The term “front” applied to that line,.indicates such general coincidence; and so does the fact already named, that one point in the line is expressly put at high water; but the provision that the line drawn to the west under water, not exceeding six feet in depth, shall not “ interfere with the water front of the adjoining property” demonstrates it. The adjoining property here alluded to must be the “ land of the association ” previously named, and along or over against whose entire “front” the water boundary of the patented lands is drawn. It must be understood that the front first alluded to is identical with the front last alluded to and distinguished as “water’’front— that is, the line, prima facie, of ordinary high water. The [364]*364result is, that the land embraced in the offer to sell, is, according to the statute description of it, all under water at ordinary high tide, and belonged to the State by reason of its sovereignty.
Row as to the patent; there are two descriptions given in it of the lands which it purports to convey. The first is by naming them “ State salt marsh and tide lands;” the second is by courses and distances—the last giving no clue to the character of the land.
“ Salt marsh” was first used to designate a class of lands belonging to the State in an Act passed May 13, 1861 (Acts 1861, p. 361, Sec. 27,) and we understand the term as applying to a certain class of “ swamp and overflowed lands ” held by the State under the “ Arkansas Act ” of September 28, 1850 (26 Cal. 352.) The descriptive phrase “ tide lands ” also occurs for the first time in the legislation of this State, in the Act of May 13, 1861; and it is applied to lands covered and uncovered by the ordinary tides (People v. Davidson, 30 Cal. 379.) As there is no third class of lands belonging to the State in which the characteristics of marsh and tide lands are blended, we interpret the patent as calling for marsh lands in part and for tide lands as to the residue. The latter is the efficient call of the patent, the former being null and void for the reasons already stated. The patent being good in part and bad in part, and there being no intendment that the locus in quo was on that part of the general area described by courses and distances which is made up of tide lands, the burden was upon the defendants of proving that such was the fact—that is to say, the burden was upon them of showing themselves within the only efficient call of the instrument under which they justified. Evidence was introduced by the defendants tending to prove that the fences torn down by them were on land below the line of ordinary high water, while the testimony of the plaintiff tended to prove that they were above that level, and were either marsh er upland ; one of which only was within the terms of the patent, and neither of which was within the offer to sell. On this state of the [365]*365evidence the Court told the jury, amongst other things, that “if they found on the evidence that the land on which the alleged trespass took place, where the fences stood, was above ordinary high water mark, but subject to periodical overflow of spring tide seas, they could not consider the injury to the plaintiff as against their holding under the patent.” This instruction was, in our judgment, erroneous. The jury were told, in effect, that the defendants would be entitled to recover, if the locus in quo was not in fact within the only operative call of the patent under which they justified.
The case at bar is not like that of Carder v. Baxter, 28 Cal. 99, cited for the respondents. The patent in that case was for swamp and overflowed lands, and it was held that the defendant being a stranger to the paramount source of title, could not dispute that the lands were in fact what they were represented to be in the patent. According to the patent in the case at bar, the locus in quo was either marsh lands or tide lands, but the patent did not determine which. The defendant undertook to show which it was by evidence introduced for that purpose, and the plaintiff co-operated in clearing up the question by evidence on his part.
Judgment reversed and new trial granted.