
    [S. F. No. 4352.
    In Bank.
    January 31, 1907.]
    DARBEE AND IMMEL OYSTER AND LAND COMPANY, Appellant, v. PACIFIC OYSTER COMPANY et al., Respondents.
    Partition—Eight to Use of State Lands for Oyster-Beds—Construction of Statute—Mere Personal License.—An action for partition cannot be maintained in respect of the rights conferred by the “act to encourage the planting and cultivation of oysters,” approved March 20, 1874. There is no element of an estate of inheritance or a perpetual estate conferred by that act; but it grants a mere personal license, not inheritable or transferable, •which may be revoked by the state.
    APPEAL from a judgment of the Superior Court of Alameda County. William H. Waste, Judge.
    The facts are stated in the opinion of the court.
    F. J. Russell, for Appellant.
    Campbell, Metson & Campbell, Charles Tupper King, J. R. Moulthrop, and Reed, Nusbaumer & Black, Amici Curice, for Respondents.
   McFARLAND, J.

Plaintiff, a corporation, brings this action for a partition of certain premises which it avers to be “real property,” and avers that it has an “estate of inheritance” therein. A demurrer to the complaint was filed by some of the defendants. The demurrer was general and special, and was sustained in the court below, and judgment was rendered in favor of defendants. From this judgment plaintiff appeals.

The action is based on section 752 of the Code of Civil Procedure. That section is under the head of “Actions for the partition of real property,” and it provides that an action for partition may be brought by one or more cotenants of real property, in which one or more of them “have an estate of inheritance, or for life or lives, or for years.” The court below held that the complaint shows that neither plaintiff nor any of the defendants had an estate of inheritance, or for life, or for years, in any real property, and upon that ground sustained the demurrer; and as we think that this conclusion was right, we need not examine any other question raised in the case.

In the complaint the alleged real property in which plaintiff is averred to have an estate of inheritance is described as follows: “The right to the exclusive use and occupation thereof for the purposes of laying down and planting oysters and taking up and carrying off the same in and from said real property, in accordance with and as provided by the terms of an act of the legislature of the state of California, entitled ‘An act to encourage the planting and cultivation of oysters,’ approved March 30, 1874.” Those parts of said act of March 30, 1874, (Stats, of 1873-4, p. 940,) which are material here, are as follows: The title of the act is “An act to encourage the planting and cultivation of oysters,” and the first section is as follows :—

“Any citizen of the United States may lay down and plant oysters in any of the bays, rivers or public waters of this State; and the ownership of and the exclusive right to take up and carry off the same shall be continued and remain in such person or persons who shall have laid down and planted the same.” The next sections, down to and including section 8, provide that the person desiring to use the right must define the limits of his claim by stakes, etc., must maintain thereon a sign on which must be painted the words “Oyster Beds,” and must record a description of his bed or beds of oysters in the county recorder’s office. (In the case at bar it does not appear that appellant complied with these provisions; but we will not consider that matter.) It is further provided that, after he has complied with these provisions, any person who enters thereon and carries off oysters or removes therefrom marks designating boundaries shall be guilty of a misdemeanor. Section 9 is as follows:—
‘ ‘ This act shall not apply to any tide lands which the state may have sold to private parties; provided, further, that nothing herein shall be so construed as to interfere with the right of the state to sell and dispose of any of the tide lands, nor to affect in any manner the rights of purchasers at any sale of tide lands by the state.”

In the property described in the complaint there is no element of an estate of inheritance, or, as described in section 761 of the Civil Code, a “perpetual” estate. The privilege extended to all citizens by said act to temporarily use the unsold tide lands belonging to the state, if it can be considered as an estate at all in lands, is certainly of no higher dignity than an estate at will. But, in our opinion, it is really nothing more than a mere personal license. That was the view taken of similar statutes by the highest court of Maryland, where the oyster business is a very large one. In Phipps v. State, 22 Md. 380, [5 Am. Dec. 654], the court, was dealing with statutes like ours and it said: “It abundantly appears from the nature of the privilege in dispute, as well as from the terms in which it was conferred, that no transfer of the state’s title to lands covered by navigable water was contemplated. Permission to use given areas covered by navigable water for a particular purpose seems to be all that the legislature intended, and we think the language of its assent to that use should be construed, not as a grant binding the state, but as a conditional license, revocable at the pleasure of the legislature.” Again, in Hess v. Muir, 65 Md. 586, [5 Atl. 540, 6 Atl. 673], Alvey, C. J., said: “These statutes, the better to promote the growth and to increase the supply of oysters in the waters of the state, provide that any of the citizens of the state may locate one lot, and only one, of five acres, in any unappropriated ground covered by the tide, and plant the same with oysters, and thereupon he is given exclusive control thereof. This, however, is not a grant of an indefeasible right or estate in the lot thus authorized to be located and planted with oysters. It is simply a conditional or qualified license or franchise, revocable at the will and pleasure of the state. (Phipps v. State, 22 Md. 380, [5 Am. Dec. 654].) It is neither inheritable nor transferable, but is purely a personal privilege in the party locating the lot.”

The judgment appealed from is affirmed.

Angellotti, J., Sloss, J., Henshaw, J., and Lorigan, J., concurred.  