Opinion of the court. character of the damages sustained by the Sapphire in the collision. 2. In a case of collision, in which both parties are in fault, each party pays his own costs.* In the case at bar, the original decree was reversed, and the cause after the mandate required the court below to act upon a new state of facts; so that the question of costs arises subsequent to the mandate. 3. The claimants were entitled to the costs awarded them on their appeal to the Supreme Court, because they were compelled to appeal to protect their rights; these costs stand upon grounds distinct from those applicable to the costs of the parties in the District and Circuit Courts. The Circuit Court should have entered judgment therefor, instead of deducting the amount from the costs allowed to the libellant. 4. Finally, we submit that the Circuit judge mistook the import and requirements of the mandate and opinion to which it refers, and that the decree of the Circuit Court should be reversed, and the cause remanded with directions to ascertain the nature, extent, and amount of the damages sustained by the Sapphire, and thereupon to render such judgment as will carry the mandate into effect. Mr. Caleb Cushing, contra. Mr. Justice STRONG delivered the opinion of the court. The question now presented is whether the new decree which the Circuit Court has made conforms to our mandate. Our mandate was not an order to take further proceedings in the case, in conformity with the opinion of this court (as was directed in The Schooner Catharine†), or to adjust the loss upor: the principles stated in our opinion (as was directed in Cushing et al. v. Owners of the Ship John Frazer et al.),‡ but it was specially to enter a decree in conformity with the *The Monarch, 1 William Robinson, 21. † 17 Howard, 170. 21 Id. 184; see also Rogers v. Steamer St. Charles, 19 Id. 108. Opinion of the court. opinion of this court. Of what damages did we order an equal division? There were no others asserted or claimed than those sustained by the libellant. We do not say that a cross-libel is always necessary in a case of collision in order to enable claimants of an offending vessel to set off or recoup the damages sustained by such vessels, if both be found in fault. It may, however, well be questioned whether it ought not to appear in the answer that there were such damages. It is undoubtedly the rule in admiralty that where both vessels are in fault the sums representing the damage sustained by each must be added together and the aggregate divided between the two. This is in effect deducting the lesser from the greater and dividing the remainder. But this rule is applicable only where it appears that both vessels have been injured. If one in fault has sustained no injury, it is liable for half the damages sustained by the other, though that other was also in fault. And, so far as the pleadings show, that is the case now in hand. But, without deciding that the claimants of the Sapphire were not at liberty to show that their ship was damaged by the collision, and to set off those damages against the damages of the libellant, it must still, we think, be held they have waived any such claim. If our mandate was not a direction to enter a decree for one-half the damages of the libellant, if its meaning was that a decree should be made dividing the aggregate of loss sustained by both vessels, which may be conceded, it was the duty of the respondents to assert and to show that the Sapphire had been injured. This they made no attempt to do. When the cause went down they neither asked to amend their pleadings, nor to offer further proofs, nor to have a new reference to a commissioner. So far as the record shows, they set up no claim, even then, or at any time before the final decree, that there were any other damages than those which the libellant had sustained. It is not competent for them to make such a claim first in this court. We cannot say, therefore, the court below did not decree in accordance with our mandate. The appellants further complain that it was erroneous to Syllabus. allow the libellant his costs in the District and Circuit Courts, deducting therefrom the costs allowed them by this court, i. e., the costs of the reversal of the former decree. We do not perceive, however, in this any such error as requires our interposition. Costs in admiralty are entirely under the control of the court. They are sometimes, from equitable considerations, aenied to the party who recovers his demand, and they are sometimes given to a libellant who fails to recover anything, when he was misled to commence the suit by the act of the other party.* Doubtless they gener ally follow the decree, but circumstances of equity, of hardship, of oppression, or of negligence induce the court to depart from that rule in a great variety of cases. In the present case, the costs allowed to the libellant were incurred by him in his effort to recover what has been proved to be a just demand, and a denial of them, under the circumstances of the case, would, we think, be inequitable. DECREE AFFIRMED. WEBER V. THE BOARD OF HARBOR COMMISSIONERS. 1. Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the General government. 2. The legislature of California, on the 26th of March, 1851, at its first session after the admission of the State into the Union, passed an act granting to the city of San Francisco for the term of ninety-nine years the use and occupation of portions of the lands covered by the tidewaters of the bay of San Francisco in front of the city, lying within a certain designated line, described according to a map of the city on record in the recorder's office of the county, and declared that the line thus desig * Benedict's Admiralty, 549. † Id. 549. Syllabus. nated should "be and remain a permanent water front" of the city. It also provided that the authorities of the city should keep the space beyond the line, to the distance of five hundred yards, "clear and free from all obstructions whatsoever;" and reserved to the State the right to regulate the construction of wharves and other improvements, so that they should not interfere with the shipping and commercial interests of the bay and harbor. A subsequent act of the legislature, passed on the 1st of May, 1851, authorized the city of San Francisco to construct wharves at the end of all the streets commencing with the bay, the wharves to be made by extending the streets into the bay for a distance not exceeding two hundred yards beyond the line established as the permanent water front of the city; and provided that the space between the wharves, when extended, should remain free from obstructions and be used as public slips for the accominodation and benefit of the general commerce of the city and State. After the passage of these acts the predecessors of the complainant acquired the title of the city, under the grant of the State abovementioned, to lots lying along the line of the said water front, and erected a wharf in front of the lots into the bay: Held: 1st. That the complainant took whatever interest he obtained, in subordination to the control by the city over the space immediately beyond the line of the water front, and the right of the State to regulate the construction of wharves and other improvements; and that he was not a riparian proprietor, having a right to wharf out into the bay. 2d. That the erection of the wharf was an interference with the rightful control of the city over the space occupied by it, and an encroachment upon the soil of the State which she could remove at pleasure. Having the power of removal, the State could, without regard to the existence of the wharf, authorize improvements in the harbor, by the construction of which the use of the wharf would necessarily be destroyed. 8. The statute of limitations of California declares that the people of the Stat will not sue any person for or in respect of any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless 1st. Such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced; or unless, 2d. The people, or those from whom they claim, shall have received the rents or profits of such real property, or some part thereof, within the space of ten years: 4. The predecessors of the complainant in 1854 erected a wharf, projecting it into the bay of San Francisco, and in 1867 obstructions to its use were made, for which the present suit was brought, the complainant contending among other things that he had acquired a title to the wharf by operation of the above statute. Before ten years had elapsed after the erection of the wharf the legislature passed an act creating a board of harbor commissioners, and directing them to take possession of and hold the water front to the distance of six hundred feet from the estab Statement of the case.. lished front line abovementioned, with the improvements, rights, privi leges, franchises, easements, and appurtenances, and to institute suits for the recovery of wharves and the removal of obstructions to the harbor, and generally to hold the property for the construction of wharves, landings, and other improvements intended for the safety and convenience of shipping. Held: 1st. That the words in the statute of limitations; “shall have accrued,” are used in the sense of "shall have existed." 2d. That the act creating the board of harbor commissioners rebutted any presumption against the title of the State from the lapse of time, and prevented the complainant from acquiring that title by operation of the statute of limitations. APPEAL from the Circuit Court for the District of California; in which court one Weber filed a bill against the board of State harbor commissioners of California, to make them abate and remove certain erections made by them on the water front of San Francisco, which he alleged interfered with a wharf rightfully put there by him. The case was thus: The State of California was admitted into the Union on the 9th of September, 1850. At the first session of its legislature afterwards, namely, on the 26th of March, 1851, an act was passed entitled "An act to provide for the disposition of certain property of the State of California,” which granted to the city of San Francisco the use and occupation, for ninety-nine years, of certain lands lying in front of the city covered by the tidewaters of the bay of San Francisco. This act is generally designated in California as "The Beach and Water-Lot Act of 1851." It describes the outer boundary line of the lands according to the survey of the city, and a map or plat of the same on record in the office of the recorder of the county of San Francisco, and in its fourth section declares that this line "Shall be and remain a permanent water front of said city, the authorities of which shall keep clear and free from all obstructions whatever the space beyond said line to the distance of five hundred yards therefrom." And the sixth section provides that- Nothing in the act shall be construed as a surrender by the |