day of July, 1878, with the privilege to the plaintiff to renew it for thirty days thereafter. "2. By the terms of said contract, if plaintiff effected a sale of said mining claim within the time specified, for more than $50,000, he was to receive as compensation for his services as agent in effecting said sale one half of the amount realized thereby, over and above said sum of $50,000. "3. Plaintiff was not to receive any compensation for his services, nor were any expenses incurred in the transaction to be chargeable against defendant, unless a sale was effected by plaintiff under said written contract. "4. About the twentieth of August, 1878, plaintiff entered into negotiations with one H. A. Hedger for the sale to him of said property for the sum of $75,000 in United States gold coin. "5. These negotiations were carried on between the said parties until about the twenty-seventh day of August, 1878, when they were terminated by a notification to plaintiff from Hedger, that he declined to purchase the property. "6. The plaintiff did not effect any sale of said property, nor did he procure a purchaser able and willing to purchase the same.” It is claimed by the appellant that the last finding and the last clause of the finding next preceding the last are contrary to the evidence. There is positive evidence of the pecuniary ability of Hedger to purchase the property, which is not contradicted, so that there is no conflict of evidence upon that question. His willingness to purchase the property is cvidenced by an instrument in writing between him and the plaintiff, in which he agrees to purchase it at the price and on the terms upon which the plaintiff was authorized by the defendant to sell it. In that agreement there is a stipulation that Hedger might have twenty days from its date in which to examine and pass upon the title to the property. The agreement between the plaintiff and defendant was, by its terms, to remain in force for a period of sixty days from its date, and had, at the date of the agreement between the plaintiff and Hedger, more than twenty days to run. Now it appears further by the evidence that Hedger insisted upon a ratification of the agreement between him and the plaintiff by the defendant within a specified period, and that the defendant refused to ratify it within that period, and that Hedger at the expiration thereof notified the plaintiff that he, Hedger, considered himself released from any further obligation to purchase the property. By refusing to ratify said agreement the defendant, we think, refused to sell the property to Hedger, at the price and on the terms which the defendant had agreed with the plaintiff to sell it. And if that be so, the finding that the plaintiff did not procure a purchaser able and willing to purchase said property, is against the evidence. The evidence shows that the sale was defeated by the refusal of the defendant to ratify the agreement made by his agent, the plaintiff, with Hedger, and we are unable to find anything in the evidence which tends to show that Hedger was not both able and willing to purchase at the price and upon the terms fixed by the defendant in his agreement with the plaintiff. Judgment and order denying a new trial reversed. MORRISON, C. J., MCKINSTRY, ROSS, THORNTON, JJ., con curred. MYRICK, J., dissented. MCKEE, J., dissenting: It is familiar law that a real estate broker is not entitled to commissions for making a sale of real estate for his principal, unless he strictly performs the services required of him according to the authority conferred upon him. In the case in hand, the defendant, claiming to have been "seised at law and in equity" of a mining claim in the State of Nevada, authorized the plaintiff by an instrument in writing, to sell the claim at any time within sixty days from the first day of July, 1878, for such a sum of money as would net him sixty-five thousand dollars; and any surplus which might be realized from the sale, he agreed to divide equally between the plaintiff and himself, and to pay out of his share of the surplus whatever expenses might be incurred in making the sale. No other terms were prescribed. Under this authority the plaintiff, as agent and attorney in fact of the defendant, on August 21, 1878, entered into an agreement in writing with one Hedger to sell and convey to him "the absolute title to the property," within twenty days from the date of the agreement, for the sum of seventy-five thousand dollars, payable on condition that Hedger would be satisfied with the title and that the defendant would sign, ratify and approve the agreement. Hedger was able to pay. Negatively it appears that there was no fault in the title to the property; that Hedger took no steps to satisfy himself about it, and that he never demanded of the defendant to consummate the alleged purchase by a conveyance of the title. It also appears, affirmatively, that the defendant refused to sign the agreement in writing between Hedger and the plaintiff, and that the former, on August 27, 1878, notified the latter, that he considered himself released from all obligation to purchase. There was, therefore, no actual sale of the property. Hedger was not a purchaser ready and willing to buy, nor did the defendant refuse to consummate a purchase by the conveyance of his title; he did refuse to sign the agreement in writing between Hedger and the plaintiff: but he was not bound by his contract with the plaintiff to sign any agreement in writing which the latter might make with a person to whom he offered the property for sale; and in refusing to do what he was not bound by his contract to do, the defendant was not at fault. As an agent, the plaintiff could only bind his principal within the scope of his authority. It was not within the scope of his authority to make a conditional or contingent sale. Such a purchase, the defendant was not bound to accept. He had the right to determine for himself whether the offer to purchase upon such a contingency, as was agreed to by his agent, was made in good faith, and to refuse or accept the offer. And Hedger was not bound to purchase if the contingency which he presented, did not happen. As, therefore, the plaintiff's claim to compensation was, by his own unauthorized act, made dependent upon an act which his principal was not bound to perform, no recovery can be had upon it. A real estate broker is not entitled to recover commissions for a conditional sale of real estate which fails of the actual consummation by no fault or fraud of the owner of the property. (Hinds v. Henry, 36 N. J. L. 333; Walker v. Tirrell, 101 Mass. 257.) Therefore I think the judgment and order of the Court below was correct, and should be affirmed. [No. 6,200.- In Bank.] SAMUEL SOULE ET AL. v. ANDREW J. POPE ET AL. HARBOR COMMISSIONERS DOCKAGE - WHARFAGE - TOLLS- · STREETS DEFIAffirmed upon authority of The People v. San Francisco Gas Co., 60 Cal. 349. APPEAL from a judgment for the defendants, and an order denying a new trial, in the Nineteenth District Court, of the City and County of San Francisco. WHEELER, J. J. B. Lamar, for Appellants. The wharf question is on the inside, seventy-five feet of Berry street, between Second and Third streets, and opposite Block number 10; and Berry street is one of the streets of the City and County of San Francisco, and lying along the water-front. (Act of 1863-4, § 10, p. 143.) The power of the Legislature to confer upon the Board of State Harbor Commissioners jurisdiction over the harbor of San Francisco, and particularly over the wharf on Berry street, is clear. The defendants have wharfed out, below high-water mark, into the navigable waters of the bay, into a street or highway, and the structure is a purpresture; and the Legislature, in placing this navigable arm of the bay, this highway, under the jurisdiction and control of the Board of State Harbor Commissioners, with power to collect dockage, wharfage, and tolls, exercised a sovereign right. Where the soil is the King, the buildings below high-water mark is a purpresture- an encroachment and intrusion upon the King's soil, which he may either demolish, or seize, or arrent, at his pleasure. (Angell on Tide Waters, 199, 897.) "By the American Revolution, the people of each State in their sovereign capacity, acquired the absolute right to all their navigable waters and the soil under them. That right was not granted by the Constitution of the United States, but was reserved to the States respectively; and new States have the same right of sovereignty and jurisdiction over the navigable waters within their limits as the original ones." (Barney v. Keokuk, 94 U. S. 324; Goodtitle v. Kibbe, 9 How. 471; Withers v. Buckley, 20 id. 84; The Attorney General v. The City of Eau Claire et al., 37 Wis. 447.) McAllister & Bergin, for Respondents. The Harbor Commissioners had no right to collect wharfage or dockage from a bulkhead projected by defendants from their water-lot property, which bulkhead was situate on the inner half of Berry street, previous to the time that the locality called Berry street had been converted by some structure, or some filling, into a street or thoroughfare. The tenth section of the statute of March 5, 1864 (Statute of California, 1863-64, page 143), cited in appellants' brief, has no application to this case, as that statute was repealed. by the Political Code on the first of January, 1873, and the transactions in question occurred in December, 1874, and January and February, 1875. (Pol. C., § 18.) The power of the Harbor Commissioners, during December, 1874, and January and February, 1875, was derived from Sections 2,521 to 2,554 of the Political Code. Upon the proper construction to be placed upon Section 2,535 this case depends. Undoubtedly, the latter part of this section gave the power to collect dockage, wharfage, and tolls upon the inner half of the streets lying along the water front; but, we say, not before such localities had become streets, not before they afforded means of passage for vehicles or foot passengers; not before they had practically become thoroughfares. Section 2,539 of the Political Code limits the rate of tolls, wharfage, and dockage to be collected by the Harbor Commissioners, and in speaking of the localities from which these collections can be made, says "on merchandise landed upon |