Breed v. Cunningham
Before: Murray
Synopsis
This was an appeal from the Fourth Judicial District.
The complaint sets forth, that the plaintiffs are the lessees of the wharves known as California and Market Street wharves, in the city of San Francisco, and have exclusive right to collect wharfage, &c., upon all goods, &c., landed thereon, &c.; and had erected a wharf thereon, &c.; and that there are as appurtenant to the wharves, two slips, one on each side thereof, of dimensions described, &c. And charges that the defendants wrongfully, &c., did commence, &rc., and did convey dirt and sand on the north side of Market street wharf, with the said space or slip, where the tide ebbs and flows, to fill up said slip, &c., to the injury, &c., of the plaintiff. And prays an injunction to restrain the defendants from filling up the same, &c., and for damages, &c. To this complaint defendants demurred; and plaintiffs filed an amended complaint the 17th April, 1852, in which they set forth their title to the leasehold estate in the said Market street wharf and slip, and the sources from which their title was derived, which concluded by praying for an injunction as in the original bill. On the 29th June, the defendants answered severally, denying the material averments contained in the complaint, not setting up any right in themselves—but averring that the Market street wharf was a public street, which had been dedicated as such by the legislature of the State.
The evidence offered by the plaintiff was a lease from the commissioners of the Sinking Fund of the City of San Francisco, for the term of eight years of the premises in question, dated 28th March, 1851. The ordinance, No. 49, of the Common Council, creating a city stock, approved 23d August, 1850. The ordinance of October 1st, 1849, annulling the foregoing. The ordinance, No. 112, authorizing the president of the board of aldermen to sign the deed of trust for the conveyance of the city property to the commissioners of the sinking fund. The deed of trust from the city to the commissioners of the sinking fund. The contract (the lease in question) from the commissioners aforesaid, to the plaintiffs, as laid in the complaint. The joint resolution of the City Councils confirming the contract, passed ■ 2d May,' 1851. The act of the legislature confirming the same; approved 28th April, 1851. The ordinance against obstructing streets, &c., passed May 15th, 1850; and the act of Congress admitting California into the Union, of 30th September, 1850. Plaintiffs called witnesses to prove that they had built a wharf at Market street, and had been in possession from the date of their lease; and that in April, 1852, defendant, Potter, had filled in the said slip on Market street with dirt and sand, and raised it up above the level of the water, which destroyed the wharf for the distance so filled in—and also to prove the damage, &c., sustained by them thereby.
The opinion of the Court was delivered by
Murray, Chief Justice. This was an action commenced in the Court below by Breed and Dennis, lessees of California and Market wharves, to restrain the defendants from filling the space between the north side of Market street wharf, and the north line of Market street, and to recover damages arising from the partial filling up of the same.
[368]The plaintiffs claim an exclusive privilege to collect wharfage and dockage, &c., under a contract entered into with the sinking fund commissioners of San Francisco, and afterwards ratified hy the legislature. Under this contract the plaintiffs constructed the present wharf, leaving a space within ■ the line of Market street sufficient for the mooring of vessels. For filling up this space, and the consequent obstruction to the plaintiffs’ enjoyment and use of the wharf, this action was brought.
Prior to the contract between the sinking fund commissioners and the plaintiffs, this same space had been laid out upon the official map and dedicated as a public street; the Ayentimento of San Francisco had assumed the ownership and control of the’ soil, and had sold lots upon the line of the street. So far as the city had any rights in the premises, she had by her own repeated voluntary acts parted with those rights; and any attempt upon her part to assume such rights, by depriving the public of the easement which they had acquired, or denying the purchasers of these lots the right of way, or the privilege of improving their property, except upon the payment of wharfage, or tolls, was clearly illegal. In addition to these acts of the municipal authorities of this city, the legislature on the 26th of March, 1851, relinquished all rights of the State to certain property heretofore claimed by this city, and confirmed the sales previously made. This act was made in reference to the map of San Francisco, and Market street was recognized as a public street by the language of the act. The act March 26th, operated as a grant by which property holders along the line of said street, and the public, were entitled to the free enjoyment of the same; and the right or privilege so granted could not be resumed by the State, and was not so resumed by the act of April 28th, 1851, confirming the contract between the appellants and the sinking fund commissioners. It is useless to cite authorities to maintain the proposition. So firmly has it become established, that where lots are sold as fronting on, or bounded by, a certain space designated in the conveyance as a street, the use of such space as a street, passes as appurtenant to the grant, and vests in the grantee in common with the public the right of way over such street; that such acts on the part of the grantor constitute a dedication of
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