The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-01-25
THE DECISION IN FULL.

In tie Superior Court o. Tie County Of Alameda,
STATE Of California Ia Bank
he Oakland Waterfront Company, plaintiff
vs. J. T. DameFon et al, defendants.
Oakland, January p. 1898
lie court-Ihe question before the court Is IN
the nature Of motion TO strike out the evidence
heretofore coudlJlunaly admitted OF tie grant or
grants from The town OF Oakland 10 CARPENTER
aud all other evidence, oral and documentary
tending 10 show TILE 10 plaintiff 10 tie land IN
question.
This court suggested that the argument
should be directed 10 The hearing upon this
question Of me late elson rendered by the
supreme Court Of the United States IN The
People OF the Stale OF Illinois ". the Illinois
Central Railroad Company ct al. which for con
YenleDce is spoken OF as the Chicago decision
Tor, as " rs minated, II the Views expressed by
the sup enc Court 10 that case we're applicable
10 the case at bar, the pUrpOued grant from he
Town OF Oakland TO b ". Carpenter of all the
land COMPRISING the water front OF The ely Of
Ga land was necessarily ultra wires OF tie
municipal corporation and of the State against
pubic policy, and therefore void. And il so
FOiu no claims u esioppel In pals by way OF
agreement or compromise, aud no est0ppel OF
record by way OF judgment and no asserted
est0ppei by assessment and collection OF taxes
could avali TO strengthen Plaintiffs title.
Sweep OF the Decision.
While only a very small parcel Of the wafer
front lands is directly included In this action
vel plaintiffs title to this small parcel rests upon
rs asserted claim OF title 10 all Of these lands
with few Insignificant exceptiOns) or 10 other
words under lie proofs offered. il has not tile
10 this piece unless II establishes title 10 ali.
IL was urged IN argument that the Chicago
decision should not be considered as authority
by this court, because IL stood alone against an
uubroken current OF judicial, state au0 Federal
authority running 10 the contrary direction.
That the Chicago decision does stand alone as
authority must at once BE- conceded.
The eminent Justice Field in Weber vs.. State
Board OF HaTb0r Commissioners is " all, b7},
declared California possessed absolute property
10 the dominion ana sovereignty over ali soils
under The TIDE waters within Der limits with the
of fba frfa r.
any part OF said soil In such manner
AZ she might deem proper, not when that can be
done without substantial impairment OF he in
teFeel OF the pubic ID the waters, as Is said ID
tie Chicago decision, but subject only 10 the
paramount right Of navigation over the waters
80 Tar As such navigation might be required by
The necessities OF commerce with foreign nations
or among Tie several SKATES, the regulations OF
Which Is vested IN HE General Government"
Ire sam court speaking through Justice Brad
ley upon Inc same general subject 10 rules
adopted by tie different states in selling their
tide lanes and lecOguiZing their rights TO do so
declares, "wheth as rules OF property IL would
now be safe 10 Change these doctrines where
they have been applied as before remarked Is
IoT the several States ITEMS, Ives 10 determine
,hey chocse 10 resign 10 The riparian proprietor
rights Hhlch properly belong to them 10 their
sovereign capacity, II Is mot for others 70 RAISE
objection" Barney vs.. Ke0kuk "a U. s. 324)
The Kenyon Case.
In Kenyon VS.. Knipe (46 FED. Rept 3l3) a
Circuit court decision (since affirmed we uuder-
stand by the Supreme Cour) discussing the
same general question, IL Is SAID. what are the
rights Of riparian proprleoTs 10 the lands below
high water Is matter for The statues. Where
there is no conflict between the States and
national Government or It's laws what are the
rights OF sovereign state In respect al least 10
Properly within lis borders IS for the State itself
to determine. (Mayor, ETC, vs.. Min, il Pet.
1922 Whatever rule II chooses TO establish as
to the ownership Of lands beneath the naYigable
waters within It's borders the United States
courts In proper case will enforce. Ii is not
within the province OF tie United States courts
TO establish that rule for 4 Stale. Whether or
not The appe lees acquired any right 10 any Of
tie land in Elliott Bay below high-water mark Is
peculiarly matter foT tie Stale courts 10 deter
mine II, as said above, the State chooses
10 abandon lis rights 10 such lands IN favor of
The riparian pTopfietots no one outside the
State has right 10 object.
In HobokeB VS.. Pennsylvania Railroad Com.
paBy tl24 U. 5. 657l, a case in many respects
Ike the present. u was said: Lands below
bigh water mark on naYigabe waters are the
absolute prop Tiy OF the State, subject only 10
tile power conferred upon Congress TO regulate
foreign commerce and commerce between the
State, and they may be granted by tie State
eI her 10 the riparian propreIOrs or tOa stranger
as fbe State may see ht," aud, accordingly n
was held that the grant by The STATE OF New
Jersey 10 tile united companies by the act of
March 81, 1863. was Intended to secure, and
does secure TO tile respective grantees The whole
beneficial interest IN their respective properties
for the exclusive use for the purpose expressed
10 the grants.
532l il was declared by the Court OF Errors and
Appeals OF New jersey nat IL was competent
for the State TO grant a stranger lands cOnsti-
tuIing tie shore of naVigabie river under tide
waller below the tide-water marx, 10 be occupied
ana used with structures and improvements
Legislative Discretion.
The three discerning Justie s in the Chicago
decision likeWfSr declare, at would seem To DC
plain that II Tie State Of Illinois has The power
by her Legislature 10 grant 10 private rights anu
interests IN parcels OF soils under n6sigADle
waters, tile ex eu5 % such graft and its efiects
upon the public interests 10 tile lands ana
Nalers remaining are mat ers OF legislative as.
cietiOn. Should The State OF Illinois see
n Inc Il eat and unforeseen growth OF the city
OF Chic go aud 81 tie lake commerce reason TO
doubt tie prudence OF her Legislature In enter.
ire ilto he contract created by the passage ano
acceptance Of the aet Of 1863. she can take tile
rights aud property OF the railroad company In