Los Angeles herald., 1906-10-10
MAKES PLEDGE TO
PROTECT HARBOR
W. ONA MORTON PROMISES TO
BANlSH S. P.
Tells How Railroad Has Secured Con-
troll Of Water Front at San Pedro
and Shows How Grip May
Be Broken

a
harbor was contained in a speech de-
livered by w. Ona Morton. Democratic
nominee for attorney general of the
state. Mr.. Morton has given the harbor
question thorough study and his ad-
dress Is one which can be read with
profit by Republicans as well as DEM
ocrats. The text Of the speech follows;
Mr.. Morton said among other things;
"The tide lands, which are the lands
between mean high tide and mean low
tide, are owned by the state by virtue
of her sovereignty, and were acquired
by California upon the admission of the
state in 1850.
''These tide lands are held by the
state for the use of the whole people,
and as a public trust, and the title is
similar to the title of the state to the
bed of the ocean and the navigable
waters between low water mark and
the three mile limit into the sea.
1T follows that none of the lands be-
low mean tide are owned by the United
States or can be sold as United States
property, but the authority of congress
extends over such lands for the i'm
provement of commerce and naviga-
tion, under the commerce clause Of the
United States constitution.
Not Subject to Sale
These lands Of the state which lie
under water and are not suscepti-
BILE to reclamation for agricultural pur-
poses. are not subject to sale by the
state as swamp or tide lands, but are
held for the purposes of navigation,
and patents issued by the state to such
lands under water are void
1.-THE constitution of California arti-
Gle XIV, section 2, forbids all obstruc-
-. rytc r.F no tar
of this state, and requires that access
to them shall remain open.
1.-THE political code of California reg
ulates the granting of franchises for
wharves by counties, cities and towns.
as to the extents of the grounds to lie
granted and as to the duration of the
franchise.
at limits the width of the wharf to
seventy-five feet on the ocean or on
any bay, but provides that upon riv
ers, straits and sloughs the franchise
may extend along the shore not exceed
ing 1000 feet.
Act Provides for Franchises
"The act of the legislature known as
the 'Broughton act originally passed
in 1893, and repassed with some slight
amendments on March %, 1905, provides
for the manner of the disposal of the
franchises and privileges to be granted
by counties, cities and towns
Section of the said Broughton act
requires application for such franchise
to be made.
Section provides for the publica-
tion of the application.
Section provides for a sale to the
highest bidder for cash.
Section requires work to be COM
menced upon the construction within a
fixed time, and fixes the time for COM
pletion.
Section requires a bond to be given
for faithful performance.
"And this act requires by section 8
that a certain percentage of the gross
earnings shall be paid into the treas
ury by way of license tax during the
period of the franchise after the first
FIVE years.
Hartman on Water Front
"In People VS.. Dean, 122 Cal. 421, it
was held that the granting of fran
ehises or privileges for the construc-
tion of wharves is governed by the
Broughton act as to the manner of dis
position and that the said Broughton
act controlled the granting of all priv
ileges and franchises of every kind
which included those for wharves.
"The water front of the San Pedro
and Wilmington bays is nearly all oc-
cupied by the Southern Pacific railroad
and allied Hartman interests. The
first unlawful seizure of water front or
lands in that bay was by the Southern
Pacific Railroad compaLy, by the con-
structiOn of railroad north and south
through the middle of Wilmington bay,
commencing in the town of Wilmington
and extending across the bay to a point
near 'Timm's point a distance of about
four miles, occupying the naviga BILE
waters of the bay through nearly or
quite the entire distance.
There is no law in the state Of Cali
fornia authorizing the construction of
railroads so as to in anywise obstruct
navigation or the access to naViga BILE
waters, and even If the legislature had
pretended to authorize 1t such act
would have been unconstitutional and
In violation of the provisions of article
XIV, section 2, of the constitution above
mentioned.
Forbidden by Constitution
The Southern Pacific claimed the
right to construct this railroad across
the bay under the provisions of section
474 of the civil code, which granted a
right of way for two hundred feet in
width over swamp and overflow lands
of the state, but the swamp and over
flow lands did not include land covered
by navigable waters, but only those
susceptible to reclamation for agricul-
tural purposes as above mentioned, and
the Legislature could not authorize the
obstruction either from the land to the
ocean or from the ocean to the land, or
upon the water. which is forbidden by
the constitution.
The effect Of construction this line
Of railroad, built at low elevation
and barely above the line of high tide
by piles driven closely together, was
to cut off the access entirely to the
ocean from the entire westerly side
Of Wilmington bay and inner harbor
of San Pedro, so that no boat or ship
could pass from the land into the open
water beyond and thus effectualIy cut
off from public use one-half of the
water front of San Pedro bay and Will
mington bay.
'The next seizure was by the Ban
nings in securing alleged patents from
the state of California to lands lying
under navigable waters in Wilmington
bay.
Patents Issued by Pretense
These patents were issued under the
pretended authority of the state for tn,
sale OF lands for agricultural purposes
and for the sale of swamp and overflow
lands susceptible OF cultivation, ant