77 Cal. 286 | Cal. | 1888
This action was brought for the purpose of obtaining an injunction against the defendants, restraining them from taking up certain moorings alleged to be the property of plaintiff, and to recover damages for the removal of certain of said moorings.
The court below granted an injunction as to the removal of some of the moorings, and as to portions of others, and awarded damages in the sum of one hundred dollars for the taking away of a buoy and anchor belonging to a mooring of the plaintiff. From the judgment and an order denying a new trial the defendants have appealed.
Their first point is, that the court below should have sustained their demurrer to the complaint, because, as
The facts set out in the complaint appear to be, among others, that the plaintiff had leased from the proper authorities of the town of Crescent City a certain portion of the water-front of that place on navigable waters, upon which had been built and was being maintained by the plaintiff a wharf used for the unloading and loading of ships and other water-craft; that in connection with the wharf, and as necessary and appurtenant to it, the plaintiff had in its possession and under its control certain moorings, anchors, and buoys, which were affixed and attached to the ground, earth, and rock, constituting the bottom of the bay or navigable waters where the wharf was erected; that such moorings, anchors, and buoys in “annexion” with the wharf were in daily use by the plaintiff, and that the wharf could not be utilized without them; that the defendants wrongfully and maliciously removed one of the anchors, moorings, and buoys, and threaten to and would remove the rest of them unless they should be enjoined from so doing; that the injury already done amounted to the sum of fifteen thousand dollars, and that the injury threatened could not be estimated, and was irreparable.
Upon this state of facts, we think there can be no doubt but that the state court had jurisdiction. Conceding, for the purposes of the case, that the federal court would have jurisdiction of such a case, the state court has concurrent jurisdiction, the action being in personam. * (Henry’s Admiralty, p. 39, sec. 19; The Lottawanna, 21 Wall. 558.)
The act conferring admiralty and maritime jurisdiction on the United States district court expressly saves “to suitors in all cases-the right of a common-law remedy where the common law is competent to give it.”
We do not think that the objection based upon the
It is further contended that the complaint was defective in not alleging the insolvency of the defendants. Yet it stated that irreparable damage was threatened in this: that a part of the wharf which is real estate was about to be wrongfully taken away,—-that is, the inheritance was threatened to be removed, and a trespass threatened in the nature of waste. When such facts are alleged in a complaint, it is not necessary, in order to obtain an injunction, to allege the insolvency of the defendant. (Richards v. Dower, 64 Cal. 63.)
The demurrer was therefore properly overruled. It is further claimed by the appellants that the judgment should be reversed, because, as is asserted, the lease under which the plaintiff held was improperly admitted in evidence, for the reason that the officers had no authority to execute it. But the corporate seal appears to have been affixed by the proper officer, and that is sufficient prima facie to show the authority. (Southern C. C. Association v. Bastamente, 52 Cal. 192.) It was not necessary to the validity of the lease that the lessee should affix his seal thereto. His acceptance was abundantly shown by claiming under it, and occupying and maintaining the wharf and its appurtenances, and paying rent.
The other points made are without merit, and no prejudicial error appearing in the record, we advise that the judgment and order be affirmed.
Belcher, C. C., and Hayne, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.
