67 Cal. 166 | Cal. | 1885
Action to abate an alleged nuisance, consisting of the maintenance by defendant of a bridge across Islais Creek, in the city and county of San Francisco, which impedes the navigation of the creek, the waters thereof being navigable'. The defendant claims the right to maintain the bridge under a grant by the legislature made April 2, 1866, to one Tompkins, his associates and assigns, of the right to lay down, maintain, and operate a street railroad along a certain route and upon certain terms stated in the act, which is found in Statutes of 1865-66, p. 749. The route designated crosses Islais Creek, and as the road could not be built across the creek without a bridge, the grant of the right to build the road necessarily included a grant of the right to build the necessary bridge. (Union Pac. R. R. Co. v. Hall, 1 Otto, 350.) And that such was the understanding of the legislature is shown by the subsequent Act of March 28, 1868 (Stats. 1867—68, p. 475), amending the Act of April 2, 1866; for the fifth section of the amendatory act provides among other things that the company “ shall be required to construct a draw in the bridge on Kentucky Street at its intersection with Tulare Street whenever the parties interested shall pay the expense of constructing such draw, and provide for maintaining the same.” And a similar provision is inserted in the act of the legislature passed March 26, 1868 (Stats. 1867-68, p. 357), declaring Islais Creek a navigable stream, the third section of which providing among other things that “nothing in this act shall be so construed as to affect the rights or franchise of the Potrero and Bay View Railroad Company (which company succeeded on July 23, 1867, to all the rights of Tompkins and his associates), or to require said company to make a draw on said bridge, unless the cost of said draw and the expense of maintaining the same, are provided by the interested parties who may desire such improvement.”
If the State had the constitutional power to authorize the building of the bridge in question, it would seem clear enough that action under its sanction cannot legally be adjudged a nuisance. But the ground chiefly relied on by counsel and upon which the court below seems to have held against the defendant
Judgment and order reversed and cause remanded.
McKee, J., and McKinstry, J., concurred.