The morning call., 1894-10-29
OAKLAND is SAFE.
Judge MCKenna's Recent
Decision
ON WATER FRONT LAW.
The States Suits Are Not to Be
Paraileled
WITH THE NORTH BEACH CASE.
Attorney-GeneraI Hart Explains the
Difference in the Principles
of the Two Cases.

mas recent decision in the suit for per-
petual injunction. brought by the gas
company against Senator James q. Fair
and others concerning the filling in of tide
lands on North Beach. would have all al
most decisive effect on the Oakland water
front litigation as regards the State and
the Southern Pacific Company in that
famous con roversy. In fact, Judge Nc
Kenna is credited with having said that
the two cases were similar, and hence it is
inferred that the State will lose its case,
also Oakland, and that the railway COM
Dany will come out winner with Judge
McKenua's decision as precedent.
But AttOrney-General Hart says that
Judge McKsnna's decision and the ltiga-
tion over the North Beach water lots have
absolutely no bearing on the Oakland
Waterfront case. And he ought to know,
because he is as familiar with the one as
he is with the other.
The Gas Company originally requested
Mr.. Hart to bring the suit for injunction
against Fair ct al. but he declined. be-
cause in his opinion the action could not
be mair tanned. In view of the fact that
the United States engineers had estab-
lshed the harbor line in front of the
property sought to be filled in be doubted
that the action could be sustained in the
courts, and. Furthermore, he did not want
10 jeopardlze the water front by the IN
tricacies or possible outcome of such liti-
CATION.
1.-The principles involved in the two
cases are entirely different" said Mr..
Hart, when interviewed on the subject
last night. ''There really is no similarity
between The two and no common ground
nf 1ifrnotinn In Ia fra nlaaa oa the
North Beach property and all the other
tide lands of San Francisco, 1t was under
1, Mexican Alcade at the time California
was admitted in the Union, and II had
some claim or right to land below high
and above ordinary low tide. The title of
inside of the strip or official harbor line as
established, and the State has authorized
the sale and filling in of such land. In
this the Government engineers, the State
law and the Hsrbor Commissioners CO.
iDcide, and the public barbor is main
tanned In front OF the property involved
in the suit.
''Iu the case of the Oakland water front
the principle involved is entirely different.
The grant of the Legislature TO the town
of Oakland Included the entire harbor aud
harbor front and reserved nothing what
ever to the public, or for harbor. This
act was against public policy and there
lUIc nun huu tOlQs uO tONb VI Oahlab0
had acquired no rights previous to the ad-
mission of California into the Union
hence the Legislature, at the time the
grant was made, was handicapped 0y the
provision IN the act of admission of Cali
fornia into the Union to the effect that all
navigabls waters should be reserved to
public use and as public highway. and
to be kept open and free TO all citizens of
the State as we'll as to all other people not
enemies of the Government.
"Again, the grant TO the city Of Oakland
was for o period of only thirty-seyen
wears, whatever the title transferred might
be. That period of time had expired be-
fore l brought the suit for the State 10
reference to the water 'front.' When the
town of Oakland granted the water front
to Horace w. Carpenter that gentleman
knew perfectly we'll the provisions of the
act of Congress admitting California into
the Union, and he took the property sub
ject to that condition. In any event what
ever title Mr.. Carpenter obtained has ex-
pired by limitation. The thirty-seven
years have gone never to return. Another
thing: The grant by the Legislature to
the town Of Oakland was bounded in such
manner as 10 not only absorb the entire
water front OF the city Of Oakland but
the whole of Alameda and for three miles
north of Oakland and two miles south of
Alameda. In other words. to use an illus
tratioD, ths grant was bounded In the
shape of an omen fan, the handle running
up San Antonio Creek and the wide part
embracing the bay on each side, commenc-
ing two miles north of Goat Island and
running to point two miles southwest of
Alameda. No reservation was made In
front of this open ian for public uses.
There is not another such case on record
In any other civilized country.
For these reasons" Mr.. Hart continued,
'I am clearly of the opinion that the de-
cisiou recently made by Judge McKenna
has no bearing on the case of the Oakland
'er front. By that mean that judge
McKenna's decision, made from the facts
before him, was correct. As to the Oak
land front, there is no doubt in my mind
but that the harbor will be preserved to
the public by the coming decision Of the
Supreme Court. AS to the tlde-land be-
tween the future harb0r line and high
water mark, cannot say. But even II the
railroad company should be given title tC
that it wouldn't matter very much. The
people can always demand and obtain ac-
cess t. the harbor line by condemnation
proceedings for public thorougnfares. But
even that is not necessary. because they
already have the streets, which cannot be
closed by any title vested in corporation
or In an individual"
Mr.. Hart proposes to spring brand new
point on the Southern Pacific Company
and the city of Oakland. 1t is TO the effect
that public necessity demands an approach
to tide-water, aud be will therefore make
a demand upon all land below ordinary
high tide.
"Tbere is an important question oil
State sovereignty involved in this matter,
MIR. Hart went on. s'Since the Declaration
of Independence, no person or corpora tion
has exercised sovereign control in tbi:
country. Sovereignty lies IN the State
alone. OakIand's political rights and ex
istence are derived from the State. The
State is sovereign and has right to reas
sert it's sovereignty even il it agrees to lei
1t lie dormant for any length of time. L
has q right to exercise its power over ths
water front even if Carpenter or his as
si2nees owned all the adjoining soil. Th,
Southern Pacific Company claims that the
Legislature has granted lands between
high water and the ships channel in many
places. such as Benicia and elsewhere
But even so, these grants were made sub
sequeut to the Oakland grant, and canno
be held as Drecedents for that reason. Be
sides the harbor lines have been estab
iished in front Of all the other grants re
ferred to"