242 F. 553 | N.D. Cal. | 1916
This is a bill to enjoin the defendant from further proceeding to dredge out and deepen a certain waterway or channel traversing lands alleged to belong to the plaintiffs’ testator, and from carrying away the earth or soil therefrom, as constituting a willful and malicious trespass and waste, and to recover damages for the waste and injury already done.
The answer of the defendant denies any ownership or right of any kind in the plaintiffs in the land involved, and sets up that the channel in question is “known and designated as the south channel of the San Pablo Canal, all within the city limits of the city of Richmond, county of Contra Costa, state of California, and that said channel is, and has been for many years last past, a navigable waterway, with a public terminus, connecting the said city of Richmond with the San Pablo Bay and the Bay of San Francisco,” and that “for many years last
The city of Richmond was permitted to file a bill of intervention, in which it alleges that the channel in question is a natural arm of San Pablo Bay, which is a navigable body of water within the state; “that the depth of water in said channel varies with the rise and fall of the tide, and that at ordinary low tide said channel has a minimum depth of two (2) feet, and at ordinary high tide has a minimum depth of eight (8) feet”; and, after alleging substantially in the terms set up in the answer the navigation of said channel during recent years between other points and the city of Richmond, it is alleged that in order to improve the navigability of the channel and render it more suitable for commerce “it became and is necessary to deepen said channel, throughout its entire length to a width of eighty (80) feet and to a depth of eight (8) feet at ordinary low tide.” It is alleged “that the city of Richmond has a population of 20,000 or upwards, and contains within its limits a large number of extensive manufacturing plants and industries; that it is essential for the best interests of the city of Richmond, its inhabitants, and the public generally that the navigability of said channel be improved and increased as aforesaid, thereby affording better transportation facilities for the city of Richmond. its inhabitants, and the public generally.” ft admits the entering into the contract as set up by defendant for the deepening and widening of the channel, and alleges that it has procured for that purpose a permit from the War Department of the United States for such improvement. It denies any right or title in plaintiffs in or to the premises involved, or that any soil or other thing of value is being taken from plaintiffs’ property.
In response to the bill of intervention the plaintiffs filed an answer, denying all its allegations as to the navigability or commercial value of said channel, and alleging that the intervener and the Standard Oil Company of California have entered into a contract “whereby it was agreed that the city of Richmond should cause the dirt or soil dredged or taken from the property of plaintiffs to be deposited upon the property of the Standard Oil Company of California, and that it should
The evidence shows that the channel in question, which is about a mile in length, runs in its entire course through a tract of salt marsh or tide land, comprising some 500 acres more or less, having its northerly boundary on San Pablo Bay, and extending southerly for a distance of a mile, more or less, between a natural waterwa)'- known as San Pablo Canal or creek, which borders it on the east, and the potrero or highlands, constituting the San Pablo peninsula, on the west. This land was acquired by Dr. Tewksbury, the grandfather of the plaintiffs, in the early ’70s by grant from those holding patents from the state under the State Tide Rand Act (Stats. 1867-68, p. 716; Stats. 1869-70, p. 541); and the title has -been regularly transmitted to plaintiffs’ testator, in whose estate it now rests. Dike all lands of its character on the margins of the sea, its bays and inlets, it is subject to tidal action, being largely submerged at flood tide and mostly exposed at its lower stages. As disclosed on the map, and by a personal inspection made by the court, it is intersected by many tidal sloughs or creeks, cut by the flux and recession of the waters of the bay in their diurnal flow, some of them of considerable magnitude, and others dwindling to mere ditches or rivulets. At the height of the tide many of these sloughs have a considerable depth of water, while at its lowest stages, in most of them, the mud bottom lies exposed, or practically so. The particular channel in controversy branches from San Pablo Canal or creek,^ a stream of much greater magnitude, a short distance south from where the latter debouches from the marsh land into San Pablo Bay, and thence winds its way in a general southerly direction throughout the length of the tract of land above described. It varies in width and depth, being in its lower reaches as wide as 100 feet or over, and narrowing somewhat farther south, with a depth, dependent upon the state of the tide, of from two feet or less at low tide in its shallowest parts toward the south, to approximately seven or eight feet at its flood, and deepening somewhat as it flows to its mouth and enters the San Pablo Canal.
Neither the channel nor the land underlying it was excepted from the grant by the state to its patentees of the tide lands through which it runs, nor in the deeds from the latter conveying the title to plaintiffs’ ancestor, nor is the channel in any way referred to or mentioned in said
Some years since the Standard Oil Company of California established a refining plant at Richmond, its site covering a considerable, acreage of highland and including a portion of tide or marsh land purchased by it from plaintiffs’ testator off the southerly end of the tract above described. At that túne the slough or channel in question continued into or through the portion of the marsh land acquired by the Oil Company, but the latter has since built a levee or bulkhead across the channel and along the northern boundary of its marsh lands, and has either wholly or partially filled ill the channel where it crosses its land. Immediately north of the marsh land sold to the Oil Company is an unimproved strip of land, about 200 feet wide, sold by the plaintiffs’ predecessors to the Belt Dine Railroad, which narrow strip runs across the
‘In Barney v. Keokuk, 94 U. S. 324, 338 [24 L. Ed. 224] it was held that it is for the states to establish for themselves such rules of property as they may deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent thereto. * * * If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.”
And it is further said (228 U. S. 262, 33 Sup. Ct. 455, 57 L. Ed. 820, Ann. Cas. 1913E, 710):
“But it results from the principles already referred to that what shall he deemed a navigable water, within the meaning of the local rules of property, is for the determination of the several states. Thus the state of California, if she sees flt, may confer upon the riparian owners the title to the bed of any navigable stream within her borders.”
“It is not every ditch, in which the salt water ebbs and flows, through the extensive salt marshes along the coast, and which serve to admit and drain off the salt water from the marshes, which can he considered a navigable stream. Nor is it every small creek, in which a fishing skiff or gunning canoe can be made to float, at high water, which is deemed navigable. But, in order to have this character, it must be navigable to some purpose useful to trade or agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give it thfe character of a navigable stream, but it must be generally and commonly useful to some purpose of trade or agriculture.”
The essentials of a navigable stream or waterway are thus stated by the Circuit Court of Appeals for the Eighth Circuit in Harrison v. Fite, supra:
“To meet the test of navigability, as understood in the American law, a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country thi’ough which it runs. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. * * * Mere depth of water, without profitable utility, will not render a water course navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating, or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a water course must have a useful capacity as a public highway of transportation.”
In People v. Economy Light & Power Co., 241 Ill. 290, 324, 89 N. E. 760, 768, it is said:
“To hold that the state can by artificial moans make a stream navigable which in a state of nature was not navigable, and thereby deprive riparian owners of their property rights in the bed of the stream, is simply to hold that private property may be taken * * * for public use without compensation.”
See, also, Chisolm v. Caines (C. C.) 67 Fed. 285; Leovy v. United States, 177 U. S. 621, 20 Sup. Ct. 797, 44 L. Ed. 914; Wilson v. Prickett, 79 Wash. 89, 139 Pac. 754.
In his work on Irrigation and Water Rights, Mr. Kinney, treating of navigable waters, states (volume 1, p. 570) the principio that:
“A stream which can only be made navigable or floatable by artificial m'eans is not a public highway.”
And at page 567 the author says:
“In order to be a public body of water, it must be accessible to the public, and have a terminus by which the public can enter it and another from which they can leave it. Hence creeks which open in navigable waters, but merely lead into private lands, are not public navigable waters.”
It results that a decree must go in favor of the plaintiffs, enjoining the further prosecution of the work in question, and awarding them such damages as they may have suffered, with their costs. Should the amount of the damages not be agreed upon, a reference may be had for its ascertainment.