The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-12-22
BOUND TO LOSE.
Oakland Will Come to Her
Own.
CARPENTERS GRANT VOID.
Waterfront Monopoly Cannot
Endure.
HAT IS THE EXPERT OPINION.
Some Indication From the Bench
That the Southern Pacific Has
No Case at All.

tice Fuller then suggested 1t himself, and
the attorneys will be given several days
in which to file their briefs in argument
for and against this proposition. Attor-
ney-GeDeral Hart will file his tomorrow.
To The CALL correspondent Mr.. Hart
said tonight that in his opinion Oakland
would be made a party to the suit. but
that her case would be submitted without
any new argument or testimony. Hart
said that this would have no effect what
ever on the outcome of the suit. and he
expresses the utmost confidence that Cali
fornia will win. He thinks Justice Field
may prepare the decision that will be prac-
tically unanimous in favor of the State.
Judge Harvey S. Brown, while not con-
ceding that the railroad will be defeated,
is not disposed to claim more than the
railroad now occupies, namely, the mole
at the foot of Broadway and the freight
slip.
III this is all they win," says Mr.. Hart.
''aud do not believe they will get even
this much. the monopoly OF the water
front will be broken. and competing
railroad will be allowed to cross it. This
is the principal point to be gained"
George C. Gorham said tonight. after
hearing all the arguments in the case:
"The railroad has not leg 10 stand on"
The California attorneys will remain
here several days longer. Mr.. Hart then
goes to New York.
When court opened this morning Mr..
Davis, representing the city of Oakland in
the waterfront case. continued his argu-
ment. He was followed by John K
of al g..
the Southern Pacific Company. He con-
fined himself to discussion of the power
of the Legislature of California as to the
grant of the water front. He reviewed
the opinion of the Supvame Court
in the Chicago lake-front case, ana
took the ground that In that case
the court viewed the act OF the Legis-
lature of Illinois as dedication
to the Illinois Central of the Government
control aud regulation of the waters of
Lake Michigan along the city front of Chi
cago. He maintained that in the present
case the grant by California was an or
binary disposition of the States sub
merged lands, made in exercise Of the
power to control public property and
rights. He claimed that the act of 1852.
making the grant, showed on its face the
exercise of the Legislatures discretion.
and the decision of the Legislature that
within the line of actual navigation public
rights in tidal waters should yield to
the rights OF private ownership, in
order that submerged lands within
that line might be developed by private
capital and enterprise. He said the line
was distinctly drawn between the waters
in which public rights are to remain abso-
lutte and unlmpaired and those waters in
which private rights are to be exercised.
No regulation of public right is left to the
discretion of private owner, as in the
Chicago case. Private rights acquired by
this regulation could not be extinguished
by subsequent legislation. Cowen de-
clared that the decision In the Chicago
case, so far from supporting the claims
of the State of California in the present
case, was authority for the railroad COM
pspy.
In concluding the argument Attorney
General Hart of California reviewed the
decision in the Chicago lake-front case.
and insisted that 1t completely covered the
present case.
He said that nobody could enter Oakland
waters with out the consent of the Southern
Pacific Railway. He conceded the right
of the State to extend the city limits of
Oakland to low-water mark and to grant
the tide lands to the city limits of Oakland
to low-water mark and to grant the tide
lands to the city or to others. bat outside
of low water mark he contended that from
that line to deep water must remain under
the control of the State for the purpose of
navigation. He conceded the right of the
State to grant wharf privileges to the full
est extent demanded by the wants of
commerce. but he denied that an act
of the Legislature granting the waters of
the bay on continuous line Of seven
miles in twenty-four feet of water was
regulation by the State. He said the State
could not control and regulate the rights
of navigation by granting them way and
it could not abdicate them.
He was very severe on Fl. w. Carpen-
tier, the grantee from the town of Oak
land, and said that il he had succeeded as
the sovereign OF the State he and his
grantees must hold the Oakland water
front as a sovereign and within the
limitations put upon s0yeregns He
said that no power could take from the
people the privileges here claimed by the
railroad company under its titles from
Carpenter. He said he was willing the
railroad company should have the privi-
lege necessary for its business. but he
wanted the door left open for others to
enter Oakland without the permission of
the railroad company.
During his argument he was questioned
by several of the Justices as to the parties
to the suit. He was especially asked if he
did not think the city of Oakland and the
Waterfront Company were Indispensable
parties to the suit. although they had not
been included Dy him as defendants. He
said he thought they were not.
The case has evidently excited great in
terest with the court. Seldom have coun-
sci been piled with so many questions
during argument as they have been yes
terday and to-day. The case Is now sub.