Connell v. McGahie

THE COURT.

This is an appeal from a judgment declaring certain land subject to an easement and prohibiting interference with the same.

The complaint alleged ownership in plaintiff of certain tide-land lots situated in Marin County, to which he deraigned title from the state by deed to his predecessors from the board of tide-land commissioners. Upon these lots clam-beds had been established, and to protect the clams from predatory fish, plaintiff had erected and maintained fences thereon. He complained that the defendants had trespassed upon the property, broken down his fences, thereby admitting the predatory fish to the clam-beds, to the consequent destruction of the clams, for which he sought damages and an injunction against future threatened injury. To this complaint defendants filed a joint answer and cross-complaint, bringing in also another party defendant. The defendant Ackerman in his cross-complaint pleaded that his codefendants, the Reeds, were the owners of the upland known as Strawberry Point surrounding “Ackerman’s Cove,” which, it appears from the pleadings, is the name by which plaintiff’s lands are known, and were also the owners of a private

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easement to construct and maintain a wharf across the tidelands and out into the waters of “Ackerman’s Cove,” and a further right to the use of the waters of San Francisco Bay-covering the cove for landing and mooring purposes for 150 feet on either side of the wharf, with the right of way from the end of the wharf across the waters of San Francisco Bay covering the cove to the channel of the bay. He further alleged that the wharf had been erected and maintained many years prior to the commencement of the action, and that cross-complainant was a tenant of the Reeds, renting one acre of land from them bordering on “Ackerman’s Cove,” together with the private easement above referred to; that he had erected a residence and boathouse on the leased premises, and engaged in the business of fishing'and renting boats, and that plaintiff had destroyed the wharf and prevented its rebuilding, and had built a fence across “Ackerman’s Cove,” thereby obstructing access to his leased land, and destroying his business. He also averred that, the waters covering Ackerman’s Cove are part of the navigable waters of the state, and that plaintiff had only a public right of fishing and navigation thereon common to all citizens.