The herald., 1894-02-17
AHEN A WHARF CAN Be BUILT.
rhe southern Pacific Wins It's
Appeal Case.
fhe supreme Court Reverses the
superior Court.
ean Pedro city Cannot EDjoin the Rail-
road Company From Working
Under the surveyor-Gen-
erals Permit.

In March, 1887. the Southern Pacific
Railroad company made selection OF
right of way over certain pnblic lands OF
the state for the location and construc-
tion OF tracks and other works necessary
in the extension OF its Wilmington
branch.
April 7th Of the same year the sur-
veyor-general issued to the road per-
init to use the same.
The lands are located in Wilmington
bay, within the corporate limits of San
Pedro, and portion of them are tide
lands, that lie, lands between the lines
of high and low water. Another por-
tion OF the lands are continually COW
cred by the waters OF the bay.
In December, 1891, by virtue OF the
permit, the road commenced to drive
piles from the extremity of the wharf
formerly constructed by it. and had
driven them for q length OF about $50
feet, when the city brought suit to en-
join them from prosecuting the work.
The grounds upon which the city OF
San Pedro based its right to the relief
sought was that the lands are within its
corporate limits and form portion of
its water front; that 1t has certain
statutory and riparian rights over the
lands and water front, and that in the
exercise OF these rights 1t vas about to
construct " harf and landing place at the
point W here the piles were being driven
that the driving Of the piles and erec-
ton OF a wharf by the company will
prevent it from carrying out its pur-
pose, and that the acts OF the road are
without right and authority.
The suit wac tried in the superior
court and it rendered judgment in favor
of the city OF San Pedro.
An appeal Was taken to the supreme
court and yesterday an opinion by it
was received for fling ct the Los Ange-
les Office, in which the superior court is
reversed.
The supreme court In passing upon
n the points raised, says it does not ap-
pear that the state has ever parted with
its title 10 the lands in question, either
those between the lines of high and low
tide. or those which are at all times
covered with water.
1t holds that unless the city of San
Pedro has some right in the lands which
the acts OF railroad will tend to impair,
it is not entitled to the relief sought,
The city cannot enjoin the road from
poseeuting its work OF driving piles
within the terms Of the survey y-general's
permit, unless it 10 An invasion of some
right OF the city, and the burden of es-
tablishing that fact rests upon il.
IT 1t should be assumed that the acts
OF the railroad are trespaes upon the
rights of the state, the court says that
the state alone has the right to COM
plain, and, in the absence Of any COM
plant on it6 part, the railroad company
10 not to be questioned about the nature
of these acts~of tfespase. 1t therefore
says that it is unnecessary to determine
whether the legislature coald by special
act disincorporate the town OF Whining
ton.
The city Of San Pedro was organized
as city of the sixth class February 81,
1888, subsequent to the date of the per-
init given, and although the lands are
within its corporate limits, the supreme
court holds that it has not for that rea-
son any proprietary interest in them,
nor is it the owner OF the soil, or clothed
with any riparian rights.
Referring to the right OF the city to
construct wharf, the court says that
the authority conferred by section 1852
Of the municipal government act does
uOb ClObuo ~ Will III huhOlut0 rlknb TO
construct q wharf at any point on its
water front it may select, irrespective OF
the rights of others, but the act is in
tended to confer the same authority to
do acts which q natural person would
possess. 1t does not authorize it to pre-
vent the erection OF wharf by another
person, who has right therefor, or who
does not infringe upon any of its rights.
The lower court found that there had
been an abandonment and non-user OF
the portion of the lands within the
limits of the permit beyond the existing
wharf, and that by reason thereof these
lands had been excluded from the per-
nit; but the supreme court says that
the record does not contain any evidence
showing an abandonment of the rights
conferred by the permit, and no rule
had been cited ehowing that a failure
by the railroad to build its wharf imme-
diately would work forfeiture of its
rights.
Necessarily some time would elapse
and such delay would not OF itself, the
court holds, work forfeiture of any
privilege which the state may have
granted. The court reserves the iudg-
ment and order denying new trial.