The San Francisco call., 1907-02-19
.REHEAR|NG IS ASKED
BY SOUTHERN PACIFIC
CORPORATION Continues the
Fight With Western
Pacific Company
HIGHER COURT CITED
Contention That Decision
Is Contrary to That
in Pueblo Case

The Southern Pacific Company hied
yesterday its petition for rehearing IN
the case of the Western Pacific Railway
Company against the Southern Pacific
Company, and asked the United States
Circuit Court of Appeals to reconsider
its opinion delivered two weeks ago, In
which the court decided that the South
ern Pacific had no title to the strip
of land along the Oakland trainlns 9
wall, which the Western Pacific IS
seeking to use in order to reach nav
igable water The petition is a printed
pamphlet of about 5000 words.
The signers to the appeal are, in the
order given. as follows: J. e Foulds.
A. A Moore. w. F. Herrtn, John CARRIER
and Peter F. Dunno Should the appeal
court deny the petition the company
may ask the United States Supreme
Court for writ of certiorari
The following are excerpts from the
petition, covering the most salient
points:
In the opinion Of this court the line of meas
urement In the contested strip is found to be the
low tide line Of 1852. actual and physical
| boundary In other words, the sinuosity OF the
main low tide line of the bay front formed and
marked by the turning in and upward Of that
main low tide line along the mouth OF San An
tonic Greek Is taken to be the true line Of meas
urement of the town grant. 1t was our cOnten-
tion that this sinuosfty was false line OF meas
urement Of the town grant We called i the
false line OF 1882 We think. with Difference.
that the conclusion Of the court accepting this
line as the true measurement Of the town grant
| If the entire water front OF Oakland was
granted to the town. that is to say, the very
town itself so far the same lay between the
boundaries Of high tide and low tide It becomes
necessary In ascertaning the line of low tide
boundary to cross from headland to headand.
Pueblo case. The only difference between that
case and this is in the circumstance. not mate
rial that there the boundary line OF the grant
was the high tide line Of San Francisco Bay.
while here 1t is the low tide land OF the same
United States decided that the boundary was in
dicated by the production Of the main high tide
line across the mouth of Mission Creek from
headland to headland and that everything above
this produced theoretical boundary was in
clqded in the Pueblo grant
1t is just as irresistibly the deduction that the
low tide line of the bay as the boundary OF the
town grant In the Oakland case is projected
from headland 70 headland and that 1t shuts IN
as by a fence. all the bay front OF the town.
within the corporation boundaries lying above
such projected tide land 1t Is submit
ted therefore. with great respect that the right
of the Southern Pacific Company a riparian or
httoral proprietor, or as an abutter upon the
waterway. to enjoy access and 10 wharf out TO
the point Of navigability under the local law and
policy of the State of California and within the
cisions of the Supreme Court of CaIifornia and
the Supreme Court of the United States has not
received that fullness Of consideration and dis
cussiOn which, upon other phases Of the case is
to be found in the able and learned opinion OF
this court.
We think. with great respect. that the cases
cited in the opinion of the court In the case at
bar do not rule the case on the question OF ae-
cretion a vested right against the opinion
of the Supreme Court of the United States in
the st. Clair case, and the opinions OF the state
courts which have gone upon similar lines
We had supposed that grant Of land bounded
by a water line would be measured by the water
line wherever that water line would be found to
exist, whether receding advancing The line
of 1852 a fixed and permanent line Is 1nferen-
tial, approxmative or cOnjeetural.
With reference to the courts decision
that the Oakland mole was not a
fence the petition states that IL the
mole had been a wharf instead of a
solid fill, 1T would scarcely be asked
that the Southern Pacific Company
should build another fence alon gside
it as a line of demarcation.