Tidelands

In 1847, prior to statehood, Brigadier General S. W. Kearney, granted to the town of San Francisco the certain beach and water lots on the east front of the town of San Francisco, and provided for the sale of the lots by public auction.

In 1851, the Legislature enacted Chapter 41, Statutes of 1851, which was known as the San Francisco Beach and Water Lots Act. The act granted to what had become the city of San Francisco certain tide and submerged lands in the city of San Francisco for use and occupation for a term of ninety-nine years. Supplemental acts included Chapter 44, Statutes 1851 and Chapter 75, Statutes 1851.

In 1853, the Legislature created the five-person state Board of California Land Commissioners. The Commissioners were appointed by the Governor and were subject to the consent of the state Senate. Although the sales of the beach and water lots had been authorized in 1851, it wasn’t until the five-member board was created that the sales occurred. These sales were carried out pursuant to a plan for the development of the San Francisco waterfront within an area known as the “Beach and Water Lots.” This area covered the entire waterfront of San Francisco as it existed as that time. These sales were not limited to tidelands but also extended into the submerged area of San Francisco Bay.

In 1863, the Legislature enacted Chapter 306, Statutes of 1863, establishing the state Board of Harbor Commissioners. The Harbor Commissioners were authorized to take possession of and hold all that portion of the San Francisco Bay lying along the waterfront of San Francisco, and adjacent thereto, to the distance of six hundred feet into the waters of the bay, together with all the improvements, rights, privileges, franchises, easements and appurtenances connected therewith, excepting such portions of said waterfront as may be held by parties under valid lease.

In 1868, the Legislature broadened the development plan and extended it throughout the San Francisco Bay Area. This was done through the creation of the state Board of Tide Land Commissioners (BTLC) was created pursuant to Chapter 543, Statutes of 1868. The Board was authorized to take possession of and to survey and subdivide all of the remaining tide and submerged lands still owned by the state out to a depth of 24 feet of water at low tide along the bay. By extending the pattern of the subdivision for the upland streets and blocks into the bay and creating channels and basins and by selling the lots and blocks, the state created a new waterfront.

In 1870, pursuant to Chapter 388, Statutes of 1870, the Board’s authority was extended to salt marsh and tidelands in San Francisco Bay out to a depth of nine feet at low tide, and located within five statute miles of the exterior boundaries of the City and County of San Francisco, as fixed and established in Section one of Chapter 190, Statutes 1857.

It is worth noting that the common boundary between San Francisco and Marin in the bay of San Francisco in 1857 was located in a different location then it was in 1870. The original Marin County boundary followed the low tide line in San Francisco Bay.

The Board’s authority to convey “salt marsh and tidelands” under this statute excluded lands granted to the city of Oakland. As in the previous legislation, the Board was directed to take possession, survey, subdivide and to sell into private ownership all areas of “salt marsh and tidelands” within their jurisdiction not previously sold, but only after setting aside areas for canals and basins to accommodate the needs of commerce and navigation.

Surveys for the State Board of Tide Land Commissioners were made under the direction of George F. Allardt, Chief Engineer of the Tide Land Survey. It is common to see references to “Allardt’s Line” on old maps that depict the waterfront in the San Francisco Bay Area.

All lands sold as BTLC lots are privately held and are no longer considered sovereign land. However, any BTLC lots that had not been filled or developed as of January 1980, are impressed with the Public Trust Easement. This easement limits the type of development that could occur on the privately-owned BTLC lots.

The Board of Tide Land Commissioners was abolished by Chapter 49, Statutes of 1876.

During the 1879 Constitutional Convention, both access to and the sale of the tide and submerged lands in the San Francisco Bay Area was a source of major discussion. The debate over whether to create a constitutional prohibition on the sale of tide and submerged lands took place over two days. Of note is that at least one delegate was the owner of tidelands. By a narrow vote, the “ayes” prevailed and the 1879 Constitution included what became known as Article XV (Harbor Frontage, etc.), below.

• SECTION 1. The right of eminent domain is hereby declared to exist in the State to all frontages on the navigable waters of this State.
• Sec. 2. No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable, and that the people shall not be shut out from the same.
• Sec. 3. All tide lands within two miles of any incorporated city or town in this State, and fronting on the waters of any harbor, estuary, bay, or inlet, used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations.

The amendment adopted in 1879 is similar to what exists today. The key difference is that a street created by the Board of Tideland Commissioners may be sold if the Legislature makes specific findings.

• Excerpt of the 1879 Constitutional Convention relating to the adoption of Article XV