ARTICLE XV.

HARBOR FRONTAGES, ETC.

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.

SECTION 2. No individual, partership 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 for the people thereof.

SECTION 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.

ARTICLE XVI.

STATE INDEBTEDNESS.

SECTION 1. The legislature shall not, in any manner, create any debt or debts, liability or liabilities, which shall, singly or in the aggregate with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war to repel invasion or to suppress insurrection, unless the same shall be authorized by law for some single object or work to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or liability within twenty years of the time of the

contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until, at a general election, it shall have been submitted to the people and shall have received a majority of all the votes cast for and against it at such election: and all moneys raised by authority of such law shall be applied only to the specific object therein stated, or to the payment of the debt thereby created, and such law shall be published in at least one newspaper in each county, or city and county, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people. The legislature may at any time after the approval of such law by the people, if no debt shall have been contracted in pursuance thereof, repeal the same.

Const. 1849, Art. VIII, Sec. 1.

ARTICLE XVII.

LAND AND HOMESTEAD EXEMPTION.

SECTION 1. The legislature shall protect, by law, from forced sale a certain portion of the homestead and other property of all heads of families.

Const. 1849, Art. XI, Sec. 15.

Mortgage foreclosure is forced sale according to section 1241, Civil Code, and section 1242 provides that homestead of married person cannot be conveyed or encumbered unless the instrument is executed and acknowledged by both husband and wife. Held, where they execute a deed absolute on its face, but which, by reason of contemporaneous oral agreement, is made in effect, a mortgage to secure existing indebtedness and for future advances to the husband, the incumbrance for future

advances being a mere oral agreement, and not executed and acknowledged by the wife it is not enforcible. [Distinguishing Bull v. Coe, 77 Cal. 54.] Merced Bank v. Rosenthal, 99 Cal. 39.

The exemption of homestead premises from forced sale is the special subject matter and object of section 1260, Civil Code, for the purpose of carrying into effect the constitutional provisions. The exemption is not an attribute, but an incident of homestead. Homestead premises may exceed the value limit of the exemption, and the excess in value does not invalidate the selection; the excess, though in fact used as a homestead, being not exempt from the claims of creditors. Ham v. Santa Rosa Bank, 62 Cal. 125.

Under section 15, article XI, of former constitution, it was held that although it gave a right to have a homestead protected, legislation was required to enforce it and make it available, and the provisions of the code directing what particular things were necessary to be done to protect a homestead must be fully and completely complied with. The clause requiring the declaration to contain an estimate of the actual cash value of the property is not directory merely. Ashley v. Olmstead, 54 Cal. 616.

In the constitution there is no limit to the value of the property thus to be protected. It is left to the legislature to determine what portion, to what limit and by what means it shall be protected. Exemption is a constitu

tional right, incident to homestead, but the extent and means are left to the legislature. Lubbock r. McMann, 82 Cal. 226.

The subject of homesteads is wholly committed by the constitution to the legislature with simply the general mandate that the latter shall protect it by law from forced sale. Beaton . Reid, 111 Cal. 487.

The mode of protecting the homestead from forced sale is left to the legislature, also the question of what the homestead shall consist. The courts have no power to increase or diminish the homestead, nor to say when it shall or shall not be subject to forced sale. Under section 1241 of the Civil Code an equitable lien for purchase money, as distinguished from a vendor's lien, is not chargeable upon the homestead. Lee r. Murphy, 119 Cal. 372.

SECTION 2. The holding of large tracts of land, uncultivated and unimproved, by individuals or corporations, is against the public interest, and should be discouraged by all means not inconsistent with the rights of private property.

The policy of the state is against the holding of large tracts of uncultivated land, and against selling land suitable for cultivation in tracts exceeding 320 acres, or to others than actual settlers. Fulton v. Branan, 88 Cal.

455.

Referred to in cases collected under section 3, this article.

SECTION 3. Lands belonging to this state, which are suitable for cultivation, shall be granted only to actual settlers, and in quantities not exceeding three hundred and twenty acres to each settler, under such conditions as shall be prescribed by law.

Lands granted to the state as swamp lands, but which afterwards become dry and fit for cultivation, can be granted only to actual settlers. Goldberg v. Thompson, 96 Cal. 117; Marsh v. Hendy, 27 Pac. Rep. 647, following Fulton v. Branan, 88 Cal. 455. Approved in McNee v. Lynch, Id 519, and in McDonald v. Taylor, 89 Cal. 43.

The fact that land is covered heavily in most places with redwood timber and brush, is broken and cut by ravines, etc., if half or more of any legal subdivision was suitable for cultivation, as to such subdivision, it is subject to purchase only by actual settler. Jacobs v. Walker, 90 Cal. 43. Whether land is suitable for cultivation or not is a question of fact. No narrow construction should be placed upon the words, "suitable for cultivation." Fulton v. Branan, supra. "Suitable for cultivation," includes all lands ready for occupation, and which by ordinary farming processes are fit for agricultural purposes. All timber lands are unfit for cultivation in their natural condition, but if they may be reclaimed by ordinary farming processes, they are suitable for cultivation. Manley v. Cunningham, 72 Cal. 236. See also Wren v Mangan, 88 Cal. 275.

Swamp land is not suitable for cultivation,