52 Cal. 385 | Cal. | 1877
The proceedings of the Board of Supervisors, in laying out these roads, and in granting the franchises under which defendants claim the wharf, might have been made the subject of review, in proper time, but cannot be attacked collaterally. (Thomas v. Armstrong, 7 Cal. 287; Waugh v. Ghauncey, 13 Cal. 11; Fall v. Payne, 23 Cal. 302; People v. FI Dorado County, 8 Cal. 58; People v. Marin County, 10 Cal. 344.) The wharf and chute were built over the overflowed and submerged lands of the State, and the plaintiff is not entitled to recover them by reason of his ownership of the land in front thereof.' (,Stevens v. Patterson, etc., 34 N. Y. L. 532; Tomlin v. Dubuque P. P. Co. 32 Iowa, 106; Lockwood v. N. Y. Syc. P. P. Co. 37 Conn. 387; Austin v. Pulland P. P. P. Co. 45 "Ft. 215.) Nor could he maintain the wharf, or exercise the
Delos Lake, for the Respondent.
The owner of land bordering on the ocean, or its bays, inlets, creeks, rivers, etc., has the exclusive right of building landings, wharves, or piers out from his land into waters sufficiently deep for the accommodation of commerce. No one else has that right. We say nothing here of privileges which may be acquired by others by the legal exercise of the rights of eminent domain.
Angelí on Tide Waters says (p. 171, ed. 1847) : “ Riparian proprietors, it appears to be well settled, cannot he cut off from the water, against their consent, hy any extraneous addition to their upland.” And he cites for this Ball v. Slack, 2 Whart. (Penn.) R. 538; and Cortelyou v. Yan Blunt, 2 Johns. 257. It cannot matter of what such extraneous addition consists, whether of wharf or other obstruction.
In Bowman's Devisees v. Waltham, (2 McLean’s Rep." 376) which was a case arising out of rights on the Ohio River, but which the Judge puts on the same footing as navigable tide
Williams & Thornton, also for the Respondent.
In every State of the Union it has been held, we believe, that, as proprietor of the adjoining land, the owner has the right of exclusive access to and from the body of water at that particular place; and all the facilities which the location of his land with reference to the body of water affords he-has the right to enjoy for purposes of gain or pleasure.
He has the right of access, exclusive of other persons, from his land over the shore to navigable water. (Clark v. Pecioham, 10 R. I. Rep. 35; Thornton v. Grant, 10 R. I. Rep. 477; Hutton v. Strong, 1 Black, 23; Helaplaine v. The Chicago etc. B. B. Co.; Pacific L. Rep. October 9th, 1877.)
It is admitted that the legal title to the shore, and—for the purposes of this argument—to the land below low water-mark, within the three marine miles, is in the State of California; but such title does not impair or conflict with the property of the riparian proprietor. The latter has the right, even against the State, not interfering with the rights and conveniences of navigation, to the possession, use, and enjoyment of all in front of his land to navigabld water. He has a right to build there wharves, chutes, or oven to fill it up by solid embankment to deep water; provided, he does not interfere with commerce and navigation. (Gough v. Bell, 2 Zaluskie, 441; Kingman v. Sparrow, 12 Barb. 201; Hart v. Hill, 1 Mart. 135; Chess v. Manown, 3 Watts, 219; Bird v. Smith, 8 Watts, 434; Cooper v. Smith, 9 S. & R. 26; Chambers v. Ferry, 1 Ycates, 167; Shunk v. Schuylkill Co. 14 S. & R. 71; Bartlett v. Common
The owner of uplands adjacent to navigable waters has an interest in the shores, of which he cannot be deprived, even by the sovereign power, without compensation (see 2 Am. Lead. Cases, 224);,and the cases are numerous among those cited where, for infringing such rights, actions of various kinds, including actions of ejectment and trespass guare clausum fregit, have been maintained by the riparian owners, especially when the soil between high and low-water mark has been reclaimed by the erection of wharves or the filling up of flats. (See Nichols v. Lewis, 15 Conn. 143.)
A wharf built in virtue of an appurtenant right is an appurtenance. In the opinion of the Supreme Court of the United States, in Harris v. Elliott, 10 Peters, 54, it is said: “ This term, both in common parlance and in legal acceptation, is used to signify something appertaining to another thing as principal, and which passes as an incident to the principal thing.”
The action is ejectment for six acres of land lying on the shore of the Pacific Ocean, and for a wharf and chute projecting from the mainland out to deep water—a considerable distance below low-water mark. The plaintiff’s title and right of possession to all the land above high-water mark are not contested, except in respect to certain portions thereof, which, it is claimed, constitute public highways, over which the defendants, in common with the public, have a right of way.
The defendants contend, first, that at the commencement of the action they were not in the possession of any portion of the land above high-water mark; second, that so much of the wharf and chute as is below high-water mark was erected by two of the defendants at their own expense, under competent authority first had from the Board of Supervisors, after appropriate proceedings for that purpose; and, further, that said wharf and chute are not upon the plaintiff’s land, nor affixed or appurten
Without attempting an analysis of the evidence in respect to the possession of the defendants at the commencement of the action, it will suffice to say on this point that there was evidence tending to show such possession, and the judgment will not be disturbed on the ground that in this particular it was not justified by the evidence.
In respect to the highways the plaintiff contends and the Court finds that the damages awarded to the owners of the land have not been paid to them or deposited for them with the Clerk of the Board of Supervisors, as required by the statute; and as a conclusion of law the Court finds thqt the highways were not legally established. These findings of fact are attacked by the defendants, on the ground that they are not supported by the evidence. The proceedings to establish the road from Butano Bridge to the southern line of the county were commenced and prosecuted under the Act of March 25th, 1868, (Stats. 1867-8, p. 283) the sixth section of which provides that when the damages have been ascertained and apportioned to the townships through which the road is located, it shall be the duty of the Clerk of the Board to transmit a certified copy of the order to the Clerk of the Board of Trustees of the several townships, and it shall be the duty of the trustees at their first meeting to draw a warrant in favor of the Clerk of" the Board of Supervisors upon the Road Fund of the township and cause the same to be paid and the money to be transmitted to the Clerk of the Board of Supervisors to be by him paid to the parties entitled thereto, “ provided there is sufficient funds in the Township Treasury applicable thereto; if there are not sufficient funds in the Township Treasury applicable to the payment thereof, then said warrant shall be registered by the Township Treasurer and paid as other warrants are, subject to all laws applicable to the payment of demands against the township.” The same section further provides that “ no road shall be opened under the provisions of this act, until all damages have been paid to the parties entitled thereto, or have been deposited with the Clerk
The proceedings for the establishment of the other two roads were had under the same statute as amended by the Act of March 19th, 1872, (Statutes 1871—72, p. 427) and the amendment retained precisely the same provisions for the payment of the damages as were in the original act, with the same condition that the road should not be established until the damages had been paid or deposited with the Clerk.
At the trial evidence was introduced by the defendants tending to prove that when the damages for the opening of these two roads had been ascertained, and awarded to Clark & Coburn, one J. P. Ames delivered to the Clerk of the Board of Supervisors his order on a mercantile firm for a sum of money which was deemed sufficient to cover the damages and costs, with directions to collect the money and pay it to Clark & Coburn ; but instead of collecting the money, the Clerk retained the order in his possession for some time, and then delivered it to Coburn. It does not appear that Coburn had authority to receive the damages awarded to Clark; but if he had, he testified at the trial that Ames was indebted to him for a cost bill growing out of a previous litigation, to an amount about equal
In respect to the wharf and chute below high-water mark, the plaintiff rests his alleged right of recovery on several grounds. He contends, first, that the proceedings before the Board of Supervisors, which, it is claimed, authorized the erection of the wharf and chute, were inoperative in law for that purpose; second, that they were erected during the pendency of the lease, by or with the consent of the lessees, and that they constitute u improvements ” which, by the terms of the lease, were to be surrendered to the lessor at the expiration of the term; third, that they were “ affixed ” to the land, and became a part of the real estate within the meaning of sec. 660 of the Civil Code, or
Under the first point we deem it unnecessary, for the purposes of this decision, to determine what was the legal effect of the proceedings before the Board of Supervisors, and shall assume, for our present purpose, that they were inoperative in law to authorize the erection of the wharf and chute. In considering the second point, we shall assume that the wharf and chute were erected with the consent of the lessees Gfoodall & Nelson, as the Court finds they were. The lease provides that at the expiration of the term the lessee would surrender to the lessor the demised premises, “ with such improvements as shall have been erected or made thereon, in good order, repair, and condition.” But the wharf and chute are not on the demised premises ; and, as will be hereafter seen, were not aifixed or appurtenant thereto within the meaning of secs. 660 and 662 of the Civil Code. They were, therefore, not “improvements” within the terms of the lease.
Moreover, the case shows that the wharf and chute were not erected by the lessees, but by Ames & Templeton, who were strangers to the lease, and not bound by its covenants—being erected and operated by them for their own advantage, and not being on or affixed to or appurtenant to the demised premises, they are not “ improvements ” within the meaning of the lease.
Nor were they “ affixed ” to the land within the meaning of sec. 660 of the Civil Code, which provides that “ a thing is deemed to be affixed to land when it is * * * embedded in it, as in the case of walls, or permanently resting on it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.”
In considering this point, we shall disregard the fact that before the commencement of the action the wharf and chute had been nominally severed from the remainder of the structure by running a saw through the boards at a point at or near high-
The plaintiff, however, contends that, being a riparian owner, he was entitled to wharf out to deep water in front of his land; and as incidental thereto that he has such a right to the posses
We have been referred to no authority which supports the affirmative of this proposition, nor can it be maintained on principle. It is well settled in England that the title in the bed of the ocean is in the sovereign, subject to the jus publicum— the right of navigation and fishery—of which the public cannot be deprived. In this country, where the people are sovereign, the title to the bed of the ocean is in the State, which represents the sovereign power; and if obstructions arc erected •which materially impair the public right of navigation and fishery, they may be abated as public nuisances. But all encroachments on navigable tide-waters are not necessarily public nuisances. They may be of such a nature as not to obstruct the public right of navigation and fishery; and in that event the encroachment is what the law terms a purpresture—an unlawful intrusion upon the bed of the ocean, the title to which is in the sovereign. In such cases, it is for the sovereign authority to decide whether the public good requires that the obstruction be removed. In People v. Davidson, 30 Cal. 389, Mr. Justice Smarter, speaking for the Court, said: “ If the soil in this case belongs to the State—and such is the theory of the bill—then the wharf, if erected, will belong to it also. The defendants will be unable to collect wharfage, and will have no rights except those" belonging to the public at large. Possession of the land and wharf, should it be withheld, can be recovered
It seems clear from this authority, and on principle as well, that in a case where no question of riparian rights intervenes, the State may maintain ejectment for a wharf constructed without authority of law, in navigable tide-water below the line of low water. If there be, however, a riparian owner, in front of whose land the wharf is erected, (as in this case) the question arises whether the right of action for the possession is in him or in the State. It cannot be in both at the same time. Assuming as we do, for the purposes of this decision, that the riparian owner is entitled to wharf- out to deep water, it is clear, we think, that this right is in the nature of a franchise or privilege, to be exercised or not by him at his election. He may never see fit to avail himself of the privilege ; and it cannot be pretended that while declining to avail himself of his right to wharf out, he is, nevertheless, entitled to the possession of the land below high-water mark, on the theory that at some future time he may possibly change his mind and desire to erect a wharf. On this theory he might capriciously refuse to erect a wharf at a point where the convenience of commerce demands it, and might prevent others indefinitely from engaging in the enterprise, A theory which works this result cannot and ought not to be upheld. On the contrary, giving to this right of the riparian owner its widest scope and latitude, it amounts only to this: that if he desires to wharf out, and is unlawfully obstructed in the exercise of the right, he may maintain an action for damages ; and if the obstruction amounts to a public nuisance, it may be abated by appropriate proceedings for that purpose. If it be only a private nuisance which obstructs him in the exercise of his right to wharf out, he may possibly cause it to be abated by the appropriate method. But he has no such title or right to the possession of the bed of the ocean as will enable him to maintain ejectment. In this State, there are numerous large landed estates, held in private ownership, which front for many miles on the shore of the ocean, and on navigable bays and inlets within the ebb and flow of the tide; and if the doctrine were tolerated that each of these proprietors, while himself
It is therefore ordered that the judgment be and is hereby modified, by striking therefrom so much thereof as includes the wharf and chute below the line of high water, and in other respects the judgment is affirmed.
Mr. Chief Justice Wallace did not express an opinion.