The San Francisco call., 1895-07-17
Editor Horr and Author Harvey Began the
Great Eight-Day Battle.
these claims would be violation of national


faith.
PROTECTION OF TIDE LANDS.
With such Jealous eyes has our Supreme
Court guarded our tide lands, that in constru-
ing acts of the Legislature they have until the
passage of the act of 1872 held that 1t was
never intended to sell tide lands upon the
shores of the sea.
1t is hard to conceive how grant OF an ex.
tended strip of tide lands Immediately in front
of maritime city would not interfere with
navigation and commerce.
1t is the history of nearly every harbor that
at the mouth there forms bar, rendering nav
igation either difficult or impossible. This
must be removed either by dredging or by q
system of jetties. In the case of the Oakland
harbor by both.
If it be true that the defendant herein owns
the fee in the bed of the estuary, then no dredg-
ing can take place therein without its consent;
for the statutes make it larceny to sever the
realty of another with felonious intent.
THE GRANT IS VOID.
Upon other grounds must.we hold the grant
void. 1t seems, and its effect is, to take away
from riparian owners vested rights given them
by the common law.
In the case at bar the land in question is
bounded by the proprietary lands conveyed by
the United States to its grantees. Until the
Legislature shall by express enactment or by
Implication take from them this right existing
at common law, we are forced to believe that
littoral proprietors have riparian right in the
waters in front of their lands.
This right, however, is not title in the soil
below high water mark, nor right to build
thereon, but right of access only, analogous
to that of the abutter upon q highway. And
also the right to the secretion and alluvion.
While the State may either expressly or
implicitly take away this right by legislation,
as it probably did in the case of San Francisco
by giving to the riparian owner q highway
upon the land extending to the line of tide
waters, yet In the case at bar no new water
line front was fixed and the lines fixed by
nature were left unchanged by legislation,
either municipal or State.
We do not mean to be understood as holding
that this right cannot be taken at any time,
or under any circumstances without compen-
sation but only that it cannot be taken unless
the general good will suffer by not taking it
away.
THE WHARF RIGHTS.
While the pleas OF estoppel and statute of
limitations can avail the defendant nothing as
to all the land lying under tide water not
actually reduced to possession, yet different
rule might prevail with reference to the par
cells built upon by substantial wharves and
used in aid of trade and commerce. There are
many cases holding that a title to tide lands
cannot be acquired by adverse possession, but
in all these cases the occupation was by i'm
piled license.
The grant to the defendant might be consid-
cred to an extent an express license, depend
ing upon the size of the strip taken, the use to
which it was put, whether built upon by con-
sent of the riparian owner, the nature of the
i'm provements when constructed, etc.
WHO OWNS TnE wHARyEs?
It may be said that all wharves erected under
to the city. All wharves erected upon the
faith OF the declaration of the city of Oakland
that the defendant was the owner of the prop
erty in dispute cannot be taken without MAX
ing compensation therefor, unless it should
appear that such wharves constitute an OBJ
struction to commerce.
No testimony has been adduced on the part
of the defendant, however, sufficient to bring
the case within this rule.
While this might be said of the defendants
case, yet the answer can be made that the
plaintiff as to the wharves in question has
not made out its case, while it sufficiently ap-
pears that the title to the land below tide water
beneath them is in the city, yet it nowhere
appears that the defendant has not an ease
ment thereon for the purposes for which the
wharves were built.
IIEven where wharves are built by volunteers
on tide waters courts of equity have no power
to decree their destruction unless it is shown
they are nuisance.
"Wharves in themselves considered are not
of evil consequence, but the reverse"
'The right is IN the executive arm of the
Government to order the abatement of wharves,
moles or embankments on the line of navig-