The Corvallis gazette. [volume] (Corvallis, Or.) 1862-1899, 1889-08-30

decision, Wnlcn Is llaoie W iesuie Ia "i'
interference with the work on the
north beach jetty, was rendered upon
demurrer filed by the defendants:
and the gist of 1t is as follows:
"This suit is brought, to have the
defendant enjoined from constructing
Il tramway along the northern shore OF
Yaquina bay, near it's mouth, in front
of certain property belonging to the
plaintiff. where access to the bay from
said property is hindered and prevent
ed. .,F. ..... ....
cit is alleged in the bill that the
plaintiff is the owner of tract OF land
in Benton county, Oregon, known as
the Ocean House property and worth
$4,000, with IA tavern on 1t which
cost $4,000; that said property abuts on
the northern shore of said bay, into
which the plaintiff has constructed a
private wharf, to and from which,
goods and passengers are transported
across said shore between said bay and
tavern; that Yaquina bay is nayigable
for all ordinary vessels and Is within
the ebb and flow OF the ordinary tides
of the Pacific ocean, whereby said
shore is daily covered and uncovered
for an average distance of 100 feet;
that the defendant is wrongfully and
unlawfully engaged in constructing
wooden tramway over and along said
shore in front of said property, with
intent to maintain the same there for
at least three years, which will COM
pletely cut off and prevent access from
said bay or wharf TO said tavern and
vice versa, to the great damage of the
plaintiff.
The plaintiff is the owner of land
abutting on the "shore" of .Yaquina
bav. How he acquired it does not ap-
pear, and it may not be material. But
the title must be derived from the
United States, under some of the acts
of congress. providing for the disposi-
ton of public lands in Oregon. Be
this as it may, as a littoral proprietor,
he has a right of access from his prem
ises to the water, and to erect and
maintain a private wharf there, al
which to land and embark, SO long a:
he does not materially interfere with
the rights of the public, and subject te
the power of the legislature to regu
late such use or privilege. .-'.'
The defendant has no special righ
in the "shore" or to the use of it, he
yond that of the general public, whicl
does not include the right to construc
or maintain tramway or other strue
ture upon or over it that would pre-
vent or substantially impair the littora
proprietnr's right or privilege of acces
to and from the water. Ill.,.
1t does not appeaf from the bill tha
this tramway is in fact such strue
ture, or whether the rail or track
laid level with the sand or earth O
1 not. Presumably it is so. But it wa
t admitted on the argument that 1t
twelve or fifteen inches above the sui
face of the ground, and therefore cal
y not be crossed by wheeled vehicle
unless it is bridged. '
Prima facie, then, the tramway is
nuisance, which works special inju,
u to the plaintiff, and the defendal
/ ought not to be allowed to maintain
. and an injunction is the proper remeo
" for the wrong" .*..,I Il .sl..
: 1t is to be regretted if the decisic
> in this case results in an interruptic
of the work upon the north jetty: {
70 impairs the fullest benefits from IL
u work by causing the removal of ii
u projection within the channel.
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