43 Cal. 605 | Cal. | 1872
By the Court,
The plaintiff, being the owner in possession of a private wharf, which would be rendered useless and valueless by the erection of the proposed wharf or landing place by the defendants, in the navigable waters of the bay, is entitled to a perpetual injunction, unless the defendants have shown a
It is said, however, that this is a matter which does not concern the plaintiff, and that no person, except the parties to the contract or the State, can object to the contract on this ground. But this is a mistake. When one justifies what would otherwise be a trespass or a nuisance, under a license, permission, or power, derived from competent authority, it is incumbent on him to show affirmatively: first, that the authority was competent; second, that the license or power was duly granted. If he fails to show either, his defense fails. The defendants having failed to show any valid authority for erecting the wharf, the injunction was improperly dissolved as to any portion of the proposed work, and should have been made perpetual as to the whole.
Judgment and order dissolving the injunction reversed and cause remanded, with an order to the Court below to modify its judgment in accordance with this opinion.