the attachment, "the defendants herein executed and delivered to the plaintiff a written undertaking, a copy of which is hereto attached, marked Exhibit A, and made a part of this complaint;" and that upon the execution and delivery of the bond, the attachment was discharged and the property was released, yet the defendants have refused, on demand, to pay the amount of the judgment rendered in the attachment suit against their principal in the bond, and hence the suit upon the bond. Reference in a pleading to an exhibit as part of a pleading is not pleading; it is merely evidential. Mayor and Common Council of Los Angeles, etc., v. Signoret, 50 Cal. 298. The cause of action as stated in the complaint is therefore upon a bond given for the release of property which had been attached.

The answer specifically denies the allegations of the complaint. There was no finding of facts, but judgment was given for the plaintiff. Impliedly, the court found all the facts as alleged in the complaint. But the bond referred to in the complaint was not a bond for the release of property which had been taken in attachment; its recitals are substantially: Whereas, an attachment has been issued and placed in the hands of the sheriff for execution, whereby he is commanded to attach and safely keep all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the demand of the plaintiff in the action, as stated in his complaint, unless a bond be given in amount sufficient to satisfy the demand, and the defendant is desirous of giving such an undertaking: "Now, therefore, we, the undersigned, * * * in consideration of the premises, and to prevent the levy of said attachment, do hereby jointly and severally undertake in the sum of thirteen hundred dollars, in gold coin, and promise to the effect that if the plaintiff shall recover judgment in said action, we will pay to the plaintiff upon demand the amount of said judgment, together with the costs, not exceeding in all the said sum of thirteen hundred dollars in gold coin of the United States." The bond was therefore "to prevent the levy of an attachment." A bond given to prevent the levy of an attachment does not prove a cause of action upon a bond given for the release of property already attached. Between such bonds there is no identity; the promises to pay may be the same, but they depend upon different considerations. One could not be used. to prove a cause of action upon the other. Between such a cause of action and the proof, there would be such a variance as would prevent the rendition of judgment in favor of the plaintiff. The allegations, proofs, and judgment in an action must correspond to sustain the judgment.

In Percival v. McCoy, 13 Fed. Rep. 379, the complaint alleged that a bond was executed and delivered by the sureties to the plaintiff as sole obligee; but the bond referred to in the complaint recited that it was given to five persons as obligees, one of whom was the plaintiff. "It seems clear," says the court in the case, "that if this bond

were offered in evidence under such an allegation there would be a fatal variance between the instrument as set out and the proof. Granting that the plaintiff might sue alone, without join

ing the other obligees, he must, nevertheless, set out and state the bond correctly, with proper allegations, showing that he alone has received injury by the breach, and therefore that he brings the suit without joining the other obligees as plaintiffs. But he cannot set out a bond as running to or made to himself alone, and give in evidence an instrument to himself jointly with other obligees.'

I think the judgment should be reversed. Laveaga v. Wise, 13 Nev. 296; Coburn v. Pearson, 57 Cal. 306.

PEOPLE V. WILLIAMS.

Filed January 29, 1884.

The wharf in question, in Channel street, in the city of San Francisco, although not built by, belongs to, the state. It is within the jurisdiction of the board of harbor commissioners, and Channel street is subject to the control and regulation of the state.

The mere establishment of a harbor line does not deprive the state of the right to control the navigable waters within the line; nor does a grant of lots to the city divest the state of its sovereign rights over the navigable highways on which the lots are bounded.

A statute dedicating to the city a portion of the navigable waters of the harbor for the purpose of deepening and improving them, does not, per se, operate as a dedication or surrender. It contains an offer of dedication, which only becomes complete upon its acceptance by the city and the completion of the improvements. There being no acceptance the state can withdraw the offer in whole or in part.

In Bank.

G. C. Coogan, for appellant.

M. Mullany, for respondent.

MCKEE, J. Channel street, between Fourth and Fifth streets, in the city and county of San Francisco, is 200 feet wide, covered by the waters of the bay of San Francisco, and navigable by vessels engaged in commerce. On the north side of this portion of the street the defendant, in the year 1873, constructed a wharf, which he afterwards, on September 12, 1876, sold and conveyed to the plaintiff, by the following description: "All that wharf structure in the city and county of San Francisco, situate on the north side of Channel street, between Fourth and Fifth streets, adjacent to and in front of block No. 17, as known on the official map of said city and county of San Francisco." Nothwithstanding this transfer the defendant continued to dock his

vessels within the street and discharge their cargoes at the wharf, for which the board of harbor commissioners demanded of him dockage, wharfage, and tolls, from November 10, 1876, until June 10, 1877; but he refused to pay upon the ground that the wharf was not within the jurisdiction of the board, and that is the question.

There is no doubt of the right of the state to control and regulate the public use of the navigable waters within its boundaries, subject only to restraints upon the right arising out of the power of congress over commerce. But it is claimed for the defendant that the state has, by legislation, surrendered its right over the water highway in question to the city and county of San Francisco. The first legislation upon the subject is to be found in the statute passed March 26, 1851. By that statute the state granted to the city of San Francisco the tide-covered lands known as the beach and water lots, and established a permanent water front for the city. St. 1851, pp. 306, 307. The mere establishment of a harbor line does not deprive the state of the right to control and regulate the navigable waters within the line. Eldridge v. Cowell, 4 Cal. 80; Guy v. Hermance, 5 Cal. 73. Nor did the grant of the beach and water lots, although it vested the property in them in the city, (Holladay v. Frisbie, 15 Cal. 630,) divest the state of its sovereign rights over the navigable highways on which the lots were bounded. Nor was it intended to have that effect, because section 6 of the statute declared: "Nothing in this act shall be construed as a surrender by the state of its right to regulate the construction of wharves or other improvements, so that they shall not interfere with the shipping and commercial interests of the bay and harbor of San Francisco." All of the streets of the city within the harbor line as established by that act, as they were laid down on the map, called the official map of the city, and all the streets mentioned and referred to in the act were afterwards confirmed, established, and dedicated to the public use as streets. Section 7, St. 1858, p. 324. Channel street was one of those streets. It was there

fore a public street of the city, dedicated to public use to its full extent, and subject, in that portion of it covered by the navigable waters of the bay of San Francisco, to the control and regulation of the state.

In 1863, the state, in the exercise of its right, established the board of state harbor commissioners to take possession of and hold all the portion of the bay of San Francisco and its appurtenances, to the extent of 600 feet from the harbor line, and to collect tolls, dockage, rents, and wharfage thereof for the purposes of commerce. Sections 1, 2, 3, 4, St. 1863, p. 406, and St. 1863-64, p. 138. On March 20, 1868, the state also dedicated that portion of the middle of Channel street, lying east of and between the easterly line of Harrison street and the water front, to be an open channel, 60 feet wide from Harrison to Seventh street, and 140 feet wide from Seventh street to the water front; and authorized the city to extend streets across it by arched

bridges or draw-bridges, without the right of demanding, or collecting tolls, or wharfage thereon. Sections 1, 2, St. 1868, p. 355. Four days afterwards, viz., March 30, 1868, the state established a board of tide-land commissioners with authority to take possession of the salt marsh and tide-lands situate in the city and county of San Francisco, to "survey the same to a point not beyond 24 feet water at the lowest stage of the tide, to establish the water-line front of the city south of the terminus of Second street, as established by the act of 1851, and to lay off the space within this water-line into lots and blocks in accordance with the official map and survey of the city, reserving so much thereof for streets, docks, piers, ship channels, drains, or other use necessary for the public convenience and the purposes of commerce as in their judgment will be required; also 30 acres, exclusive of streets, basins, public squares, and docks lying southerly from Channel street, and outside of the line known as the red line. water-front of Mission bay, subject to the rights of the city and county to establish and regulate streets, alleys, docks, wharves and basins, culverts and sewers, and the laying down of gas and waterpipes, and to such jurisdiction and control of the city and county over said street," etc.

The state, however, did not surrender its right to control and regulate the navigable waters within the space inside of the water-front, for it was by the act provided that "nothing in this act shail be construed to interfere with the collection of dockage and wharfage by the state, nor with the right of the state to construct adjoining the property granted such wharves and docks as may be from time to time provided." Sections 1, 4, 5, St. 1868, pp. 716, 718. But in March, 1872, the state vacated all the streets, alleys, and market places within the exterior boundaries of the marsh and tide-lands, as surveyed by the tide-land commissioners, and granted the lands covered by them to the city and county of San Francisco, with full power to regulate, manage, control, and donate, or dispose of the same by ordinance for railroad and other commercial purposes, (section 1, arts. 71, 72, p. 722;) and on April 1, 1872, that portion of Channel street, delineated as a canal on the official map of the city, lying east of the westerly line of Florida street, and between the west line of Florida street and the northeast line of Seventh street, and so much of the channel of Mission creek as lies south of the south line of Channel street, were declared and dedicated to be an open canal, for the purpose of drainage and navigation, across which the board of supervisors of the city and county were empowered to "extend the streets abutting upon Channel street and the said canal upon drawbridges, which would not obstruct the navigation of the canal; to keep the canal dredged to such a depth that the water therein will be two feet deep at the lowest tide, and to construct a bulk-head upon and along both sides of the canal, and for that purpose to condemn private property lying on either side of Channel street or the canal." Sections 1, 2, 3, 4, St. 1871-72, p. 926.

Upon this last statute the defendant makes his contention that Channel street and its appurtenances were placed by the state under the jurisdiction of the city and county of San Francisco, and that the state retained no jurisdiction over it. Conceding that the state had the right to dedicate to the city a portion of the navigable waters of the harbor for the purpose of deepening, improving, and preserving the same, and for the regulation of vessels and wharves therein, and to surrender its right to control and regulate them, the statute relied on, per se, did not operate as a dedication or a surrender. It contained a mere offer to dedicate a portion of Channel street and a portion of Mission creek as an open canal, if the city would deepen and improve it as the legislature prescribed. But it was for the city to accept the offer and complete the improvements. If it did not the dedication was not complete. The passage of an ordinance setting apart and dedicating a portion of the water-front in a harbor for public use as a free public dock for ships, is, said the late supreme court, a mere offer to dedicate, and the dedication is not complete, nor does the public acquire any right to the easement until it has been accepted and used by the public in the manner intended. City and County of San Fransisco v. Calderwood, 31 Cal. 586; Same v. Canavan, 42 Cal. 541.

The city did not accept the offer made by the statute of 1871-72; and the improvements were not made. Under these circumstances the state had the right to recall its offer in whole or in part, and to deal with the subject of it in the exercise of its sovereign powers. As part of the water highway of the state, the proposed canal and the streets connected with it were subject at any time to the exercise of those powers, (Polack v. Trustees, etc., 48 Cal. 491;) and on March 27, 1874, the legislature of the state vacated a portion of Channel street, (section 3, St. 1873-74, p. 711;) and afterwards, on February 28, 1876, placed Channel street, as far west as Fifth street, under the jurisdiction of the board of state harbor commissioners. Section 2,524, Pol. Code. See, also, section 4, St. 1877-78. p. 263. As it is admitted that the wharf structure in controversy is located in Channel street, and that, although it has not been built by it belongs to the state, it results that the wharf is within the jurisdiction of the board of harbor commissioners, and that Channel street, in which it is located, is subject to the control and regulation of the state.

The cases of People v. S. P. R. R., No. 5,607, and People v. Hooper, No. 5,608, are not in conflict with this conclusion. In those cases the warves were the property of the respective defendants, built by them on their own soil, bounding on Channel street, of which they were in possession under titles from the state. The cases did not involve the jurisdiction of the board within the water highway of Channel street; and they are not analogous to the case in hand. Judgment reversed and cause remanded.

We concur: MORRISON, C. J.; MYRICK, J.; SHARPSTEIN, J.; Ross, J.