Telegram-herald., 1890-08-26
ARGUMENTS BEGUN
In Powers stone Wall Injunction
suit,
TAYLOR PRESENTS 4 NOySIER BRIEF
Hs faiks IL Great nsnsth aud Win CSs.
tlpUs fbis Mornins s-JAeoe hisia-
hans Follows Hini-Ihe Law ana
IL Seieutinc Psintsl

T. . tNE4r were Arl--u 4A- tAAS 80 N@+--
coGrt before Judge BurhDganls yester-
day afternoon.
Jacob Kleinhans represented Mr.
Powers ana Wm. Wisner Taylor the
city Mayor Uhl WAS present acting as
counsel 20 Mr. TAYLOR.
After the reading OF Mr.. Powers an
sWer by Attorney Klelnhans, the city
attorney commenced his argument,
which he read from a brief, covering at
/ least seventy pages. lie fret outlined
the city's case as related IA the bail,
after which he read extracts IRON the
answer at the same time, making COM
ments.
An affidavit wasIg gone over from ex-
| President OF the Bbard Of Public Works
! Geo. G.. Briggs. ID whlch lt Was stated
/ that he was familiar with the river,
/ from Leonard 10 Fulton-st. Ia the fall
/ OF 1855 and the spring OF the follow n
/ year he examined the surveys Tor the
dock lines, and was instrumental III
/ establishing them. lie WAS OF the
1 opinion that the stone wall would throw
| the waters OF the river toward the east
| bank OF the river.
I In an affidavit Hon. c. c. Comstock
\ stated that he Is largely interested on
II the east side OF the river, IN fact he
/ built the east half of the dam. sIle
states that the West SIDE canal Is built
entirely IN the watersOf the river while
| the East SIDE canal i constructed east
OF the east bank OF the river
! Another affidavit was read, but il was
| substantially the same as George III
! Briggs.
Mr. Taylor IN opening said that one
/ line of Mr.. Powers defense IS tnat he
claims a great Injustice has been done
/ in establishing the dock line. He, how =
/ ever, SAID that he didn't intend to
argue on that point Is the court had no
right 10 90 into it unless II could be
! shown that there was malice IN so es-
tablIsning II.
''They also claim that the stream was
| once navigable, but IS not now, because
| there is no more pine 10 be cut" ne
| continued. "But conceding this and
that, there is not sufficient height tor
steamers with smoke-stacks to pass
under the bridges. There Is, however,
room for lighters and hatbOats, and
nobody can tell when 1t will be neces-
sary TO use the river for that purpose.
] Ii all the riparian owners on both sides
! built stone walls sufficiently high and
strong 10 hold the water, il might be
different"
"The proposition simply narrows It
self down TO the plain, simple question
of did the Legislature have power TO
authorize the Board of Public Works
TO establish dock lines IN the Grand
river? 1t is claimed that the Board of
! Public Works did not use discretion in
establishing the dock lines, much 10
the benefit of the riparian owners
along the east side of the river. But
the affidavit of Mr.. Comstock shows
that the encroachmants on the east
side are ten-fold as great as on the
west side, ''and taking this in
TO consideration, it should not
lay in Mr.. Powers mouth to lily
up at Comstock's slab pile. But there
is no use in arguing on this point, as
two wrongs never make right"
"Powcrs does not state for what pur-
pose he is bnilding this wall He does
not say he Is going TO improve the river.
He does not say he intends to bulid val
liable buildings. All he does sayis that
he owns that part of the river, and be
! intends TO do rs he pleases with It. II
the Board of Public Works or the coun-
ell did not show malice In establishing
the dock line, then the Legislature must
have made a mistake"
The city attorney then referred TO the
| river at Sweets hotel. He said that
part cut no figure rs 1t was built upon
before the Legislature passed the law,
| and II could not be retroactive. He then
went into the law OF the case. quoting
| from several authorities as follows:
"TO 20 into the correctness of the
I doctrines held by the Supreme Court OF
this state IN regard to the ownership OF
/ riparian owners on navgsble streams,
il could bc shown that the doctrine
I now held in this State was not. in fact
the common law doctrine. 10 has crept
I into the decisions OF the courts of sew
/ eral Stat3s Of the union through mis-
apprehension OF what was really the
I common law doctrine. and through a
1 thorough disregard Of the fact that o
navlgable stream ~ England IS almost
/ without exception. tide water stream
| where as .n most of the States Of the UNION
uavipablc streams are not tide water
strcames The true doctrine, We con
tend. was that lard down IN the case 81
Ia plasance bay harbor, but SINCE that
decision the Supreme Court Of tni'
State has held i'm Numerous decisions
that the riparian owner owns . the
center of the stream, subject 10 every
public use rs a uighwav, and that the
wuer of tile bank e entitled 90 every
bucfciai use OF the soil under the uver
which can pe exerC sed with due re-
gard 60 tuc public easement. aud that
such private ownershIp IS subordinate
to the paramount public right of nevl-
CATION. the other public benefits beng
incident thereto.
"fn such she r1le laid down n nu-
m-rous dec SONS 0i tne -IplemC court
aa3 0t supreme courts of many other
states Tie doctrine in Walker s
casncerv - doctrine that g b nE
adopted n numerous states whtre fbe
Question hst come up- The ndency
h been tn Except dEc Sens 81 tie ~u-
frerse roat t.e Tltea states
"Tt becomes urces arT % take tie
DECISIONS I'd tae >aFr1 Court - 30
fn them. and therefore adr7itt 80
tst En a Elu8u81 owner st =
rh nar gan stream OWES as0e "a
r 7ect - the Zht.
rtert te NeFertIr Iess. II
competent fer tae Leg stgre te estsb
sn arFrs nns and - f0
power rer o~frsta cam haFve.
r cr p.
to apps ste rsta rrarertT
- 7e crnref ssl
even ~a
waters hloH wsser k ere 81,
g Sd eur fs
sf s ar Ta~ haa n1
t ~