The herald., 1894-02-17
WHEN A WHARF CAN Be Bull 7.
The Southern Pacific Wins Its
Appeal Case.
The Supreme Court .Reyerses the
Superior Court.
san Pedro City Cannot Epjoin the Rail-
road Company From Working
Under tho Burveyor-Gen-
erals Permit.

In March, 1887, the Southern Pacific
Railroad company made selection Of
right OF way over certain public lands o;
the state ior the location and construc-
ton of tracks and other works necessary
10 ths extension Of its Wilmington
branch.
April 18th of the same year the sur
veyor-genersl issued to the road per-
NIT 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 is, lands between the lines
OF high and low water. Another por-
ton 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 a 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 it's right to the relief
sought was that the lands are within its
corporate limits and form portion of
it's water front; that it has certain
statutory and riparian rights over the
lands and water front, and that in the
exercise OF these rights it was about to
construct wharf and landing place at the
point where the piles were being driven;
that the driving OF the piles and cree
ton of wharf by the company will
prevent it from carrying out it's pur-
pose. and that the acts of the road are
without right and authority.
The suit was 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 at the Los Ange-
les office, in which the superior court is
reversed
The supreme court in passing upon
the points raised Gays it does not ap-
pear that the state has ever parted with
it's title to 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 eniOin the road from
posecuting its work OF driving piles
within the terms of the survey generals
permit, unless 1t is an invasion of some
right of the city, and the burden of es-
tablishing that fact rests upon it.
If it should be assumed that the acts
OF the railroad are trespass 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 its part, the railroad company
is not to be questioned about the nature
OF these acts of trespass. 1t therefore
says that it 10 unnecessary to determine
whether the legislature coald by special
act disineorporate the town OF Whining
ton.
The city of San Pedro was organized
ss city of the sixth class February 81.
1888, subsequent to the date of the per-
NIT 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 sny riparian rights.
Referring to the right of the city to
construct wharf, the court says that
the authority conferred by section 1862
of the municipal government act does
not clothe 1t with an absolute right to
construct wharf at any point ON it's
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 natural person would
possess. 1t does not authorize it to pre-
vent the erection of wharf by another
person, who has a right therefor, or who
does not infringe upon any of it's 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 bad 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 showing that a failure
by the railroad to build it's 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 judg-
ment and order DENYING a new trial.