24 Cal. 308 | Cal. | 1864
This is an action brought to abate a wharf erected and maintained by respondents in the tule, in Suisun Valley, near Suisun City, Solano County, upon the ground that the same is a nuisance, and an obstruction to the free use and enjoyment by appellants of certain wharf rights and privileges claimed by them.
“ Section 1. It shall be and is hereby made lawful for William Moody and Morgan Hart to build a wharf, as long as twelve hundred feet, near the island in the tule, in Suisun Vajley, County of Solano, on the land of the State.
“ Sec. 2. The State hereby grants to the said William Moody and Morgan Hart the use of the overflowed and tule land on both sides of said wharf for the distance of one hundred feet from each side of it, for twenty-five years from the passage of this Act; provided, that the navigation of the slough upon which it is built is not obstructed by said wharf.”
This Act was passed on the 3d day of May, 1852. On the 1st day of July, 1852, one Josiah Wing, claiming to be interested with Moody & Hart in the franchise granted by said Act, erected a wharf between the west bank of the slough and island mentioned in said Act, but this wharf was less than two hundred feet in length. On the 15th day of September, 1852, Moody & Hart conveyed by deed, to Wing, an undivided third interest in said franchise; and on the same day Hart in like manner conveyed his remaining interest to Wing, who thereby, as is claimed by plaintiffs, became vested with an undivided two thirds interest in said franchise. On the 24th of February,
Under the view which we have taken of this case, it becomes unnecessary to decide many of the points which have been made and ably argued by counsel. For the purposes of our decision, we shall assume that the Act of 1852, by which Moody & Hart were authorized to build a wharf “ near the island in the tule, in Suisun Valley,'” is not void for uncertainty, (of which we have serious doubts, however,) but, on the contrary, is good as a grant by the State to them of such rights and privileges as can be held to have passed by a fair and reasonable construction of its terms. We shall also assume that Wing, although not named in the Act, was interested with Moody & Hart in the easement thereby created, and built the wharf now claimed by the plaintiffs in this action, in acceptance of the grant, and for the purpose of securing to himself and his co-grantees the benefits thereof. We shall also assume that the plaintiffs have acquired and become vested with all the rights and privileges of Moody & Hart, granted to them by the Act in question, and are entitled to the same protection which would be accorded to Moody & Hart, were they still the owners of the franchise, and invoking the aid of the Court. We shall also disregard the Act of 1853, reducing the length of the wharf from twelve to two hundred feet; the Act of 1857, extending and confirming the right of Moody & Hart, acquired under the former Act, to Wing; and the Act of 1858, reviving, as to Wing, the limitations imposed upon the Act of 1852 by that of 1853, as having no material relation to the grounds upon which our conclusion is based. The case is thus placed upon grounds most favorable to the plaintiffs, and made to depend for its solution upon the construction to be given to the Act of 1852, in ascertaining the nature and extent of the rights and privileges thereby conferred upon Moody & Hart, and by them secured through their acts of acceptance.
The first section of the Act makes it lawful for Moody &
If this construction of the Act of 1852 be correct—and we are inclined to the opinion that it is—it follows that the defendants’ wharf, being about eight hundred feet distant from that of the plaintiffs, is not within the limits granted to Moody & Hart, and by them segregated through the appropriation of Wing in 1852, and that the rights and privileges of the plaintiffs have not been intruded upon.
But it is not necessary to rest the decision of the case solely upon the foregoing construction of the Act of 1852. Assuming that the theory of the plaintiffs is correct, and that under the terms of the grant Moody & Hart had the election of the line. upon which the length of the wharf was to be extended, and could lawfully extend it along the bank of the slough, or at right angles, or obliquely thereto, we still think the judgment of the Court below was correct.
Under the terms of the" grant, Moody & Hart were allowed to select any point on the slough which was_ near the island in the tule, in Suisun Valley, for the erection of their wharf, and were allowed to build it of any length they might elect, not exceeding twelve hundred feet. No obligation is imposed upon them to build a wharf twelve hundred feet long, nor of any other determinate length, nor any wharf whatever. Except as to the limitation of twelve hundred feet, the extent
Judgment affirmed.