147 P. 274 | Cal. | 1915
This is one of the "tide land cases," so-called, decided by this court in a number of opinions filed at the same time, the first of the series being People v. California Fish Co.,
The opinion originally filed was prepared by Shaw, J., and read as follows:
"In this case separate appeals from the order denying a new trial and from the judgment are presented, one by the San Pedro Lumber Company and the other by the other defendants. The action is in all respects similar to the action in People v. CaliforniaFish Co., (L.A. No. 3060), [
"The Los Angeles Inter-Urban Railway Company constructed an electric railroad over a part of the land, being a part of its line from Los Angeles to San Pedro, and operated the same for some time and then leased it to the appellant, Pacific Electric Railway Company, which has ever since operated it. The railway was constructed less than five years, before these actions were begun. It does not appear that *540 either company ever obtained a permit to build and maintain the railroad, either from the state or the municipal authorities. The court below correctly decided that no right to the tide land was gained by this use for railroad purposes.
"An error was made in the judgment respecting the upland awarded to the San Pedro Lumber Company. The Southern Pacific Railroad Company and the Los Angeles Inter-Urban Railway Company have certain titles and rights therein which are not mentioned in the judgment. The parties have stipulated that this error may be corrected by this court by a specified modification of the judgment. This modification will be made in accordance with the stipulation, but without costs. In other respects the judgment is correct.
"The order denying a new trial is affirmed.
"The following clause in the judgment appealed from to wit:
"`And as to said excepted portion above described it is ordered, adjudged and decreed that the San Pedro Lumber Company is the owner thereof'; is changed and modified so as to read as follows:
"`And as to said excepted portion above described it is ordered, adjudged and decreed that the San Pedro Lumber Company is the owner thereof, except all that portion thereof described as follows: Commencing at a point on the center line of the Southern Pacific Railroad Company, where said center line intersects United States bulkhead line between stations 52 and . . . of the survey of bulkhead lines which was established by the United States in July, 1908, in San Pedro harbor, and running thence southerly along said railroad following the curvature thereof and embracing a strip of land twenty (20) feet on each side of said center line to the southerly boundary of said last above described land, and it is ordered, adjudged and decreed that the Southern Pacific Railroad Company is the owner thereof; also except an easement for right of way conveyed prior to the commencement of this action by the San Pedro Lumber Company to the Los Angeles Inter-Urban Railway Company by deed dated February 25, 1905, and recorded in book 4001, page 13 of deeds, records of Los Angeles County, California; and it is ordered, adjudged and decreed that the Los Angeles Inter-Urban Railway Company is the owner of said easement of right of way last described. *541
"`And as so modified the judgment is affirmed, with costs to respondent.'"
The rehearing was ordered on the petition of San Pedro Lumber Company, which asked this court to pass specifically on its claim of prescriptive title, and on the question of its littoral rights. Although the first contention had not been advanced in the briefs, and the second was, as we thought, settled by the contemporaneous decision in People v. Southern Pacific R.R. Co.,
Decisions rendered by this court since the rehearing was ordered dispense with the necessity of extended discussion of either of the questions thus presented. In Patton v. City ofWilmington, (L.A. No. 3485), ante, p. 521, [
The claim of littoral rights is met by a reference to HenryDalton Sons Co. v. Oakland,
The opinion heretofore filed is approved as a correct determination of the points therein decided.
The order denying a new trial is affirmed. The judgment is modified as provided in said former opinion, and as so modified is affirmed, with costs to respondent.