The San Francisco call., 1907-02-05

in carefully chosen phrase that ''ship channel -
as the term is used in defining the boundaries Of
boundary follows the line of low tide along
the south shore of San Antonio Greek by the
month Of " the cres 0n 'e e Soui lands ~ IN
controversy in the. present suit lie entirely
within the limits OF the grant TO the town as
it is thus judicially determined by the court.
But the United States Circuit Court found in
tne decision OF the supreme Court OF CaIIornla
q meaning widely variant from this. and reached
the conclusion that the line of low tide which
the opinion in that case declared was the line
OF ship channel. did not mean the line of low
tide on the bay front, but another line lying
waterward Of low tide. the line OF the limit of
convenient navigation from the bay, a line along
the outer edge Of a certain bar lying about Il
mile of the mouth of San Antonio Creek. line
which is approximately marked by the
United States buikhead line. This conclusion
reached upon consideration of certain ex-
pressions which are used in the opinion of Chief
Justice Beatty, one Of which is the sentence,
Ships channel comprises the waters left free
to navigation" In this the court below found
support for the theory that Chief Justice Beatty
meant by the line Of low tide the line at which
convenient navigation was interrupted at any
we think, than that the opinion directly and en-
tirely rejects the theory of navigability she
test of the position of the line of low tide. In
the case of the San Francisco beach and water
lot act there a definitely marked line a
buIkhead line between land and water. That
was found to be the line of ships channel''
within the meaning Of that act But along the
water front of the town Of Oakland at the time
Of its incorporation there was no such line The
only fixed and definite line the line of low
tide This was the line which the Supreme
Court Of California adopted, and when the Chief
waters left free to navigation" he did not
mean waters free from obstruction to naviga-
iandward to the line of demarkation from the
land. We find no warrant for holding that any
other line was intended There was no other
BROADLY INTERPRETED
We cannot find in the casual and
perhaps inadvertent expression Of the opinion an
intention 10 modify the whole purport Of the de-
cision, elsewhere so clearly and precisely ex-
clare that il does not mean what its clear i'm
port intends. but something entirely at variance
The Southern Pacific Company has not ac-
quired the right to wharf out under the general
statute Of California providing for the exercise
of that right. and its right to do so must de-
pend upon the construction of its title through
Carpenter under the grant made TO him from
the town of Oakland and the subsequent act
of the Legislature affirming the same. y
It would seem that the expression OF the right
to erect such wharves and buildings on the lands
granted was set forth. not for the purpose OF
enlarging the prior grant, but for the purpose Of
so restricting the right to construct buildings
be obstrrcted' To saw that the ord ,1I.
nance of 1853 changed the grant Of an exclu-
sive privilege which limited TO thirty seven
years into exclusive privilege in perpetuity is
TO say that the latter ordinance ratified only a
portion of the former, and that it vastly en-
larged the prior grant by multiplying the limita-
ton as TO The duration of the privilege.
ADVERSE POSSESSION
The appellee contends that at and before the
commencement Of the suit 1t in the actual,
open notorious. adverse and exclusive possession
Of the strip of land which is here in controversy.
II claims under deed of October 81, 1892, and
one of January g. 1903. 1t conveys all of the
real property owned by the Oakland Water
Front Company. 1t is evident that this
latter deed could give no color OF title to any
land westward southwark of the line OF the
land actually owned by the Oakland Water
Front Company While the Southern Pacific
Company does not contend that 1t was In the
actual physical occupancy of these lands, 1t
urges that the lands described in these con-
yeyances were inclosed. and that thereby the
Southern Pacific Company had possession OF the
tract in dispute at the time when the Western
Pacific committed the acts which are complained
Of in the bill. The contention is that the land
was inclosed on the south by the north training
wall on the north by the Oakland mole. on the
west by the upland and the Peralta street slip.
both OF which were held and occupied by the
appellee, and on the east by the waters of the
Day. We find no ground for holding
that the Oakland mole is inclosing wall or
structure. II would convey such idea to an
observer The north training wall of the San
Antonio estuary made by the United States
Government for the purpose of improving navi-
cation In the estuary. Ii not intended as
an inclosing WALL and there is nothing TO show
that II was ever used claimed as such. .
There being no inclosure and no physical oc-