Eldridge v. Cowell

Appeal from the Fourth Judicial District.

The complaint alleges that the plaintiff is the owner of the fifty vara lot, known on the Map of San Erancisco as No. 1492; that the defendant is obstructing the navigation to the lot, by mooring and anchoring store-ships, and making embankments in front of it: and prays for an injunction and an abatement of the nuisance. The answer denies that'Lot No. 1492 lies immediately on the shore of the Bay of [81] San Francisco, and * alleges that, on the contrary, there are two streets and an entire block, laid out on the official map of the City of San Francisco, between Lot No. 1492 and the navigable waters of the Bay; and that plaintiff knew they were so laid out before he became possessor of the lot; that defendant is owner of the water lot upon which the store-ship has been anchored and the embankments madey that he holds under an Alcalde grant, and the Act of the Legislature of this State, passed March 26th, 1851; that this lot is laid out on the official map of said city, and is within its water front; and denies that the filling up and improving said lot is a núisance or obstruction to the free and open navigation and use of said bay and harbor of San Francisco, for all and every requirement of commerce and navigation, or any infringement or violation of the rights of the public, or of the plaintiff; but on the contrary, is a public benefit, and will, by extending the filling up into navigable water, greatly facilitate the loading and unloading of ships and vessels; that the space covered by this lot is not available for navigation, by reason of the slight depth of water, which at low tide leaves a great portion of this lot bare. The defendant also alleged that he had filled up and occupied the lot with the consent of plaintiff’s grantor, and that plaintiff had bought with notice.

The cause was tried before a jury, and the following facts were proved: That since the 10th of March, 1852, the plaintiff has owned and been in possession of Lot No. 1492, fifty varas square, bounded on the south by Union street, and on the east by Battery street, as laid down on the official map of the City of San Francisco, and that since the 13th day of June, 1849, the defendant has claimed to own, under the grant and conveyance hereinafter mentioned, the lot one hundred varas square, bounded south by Union street, west by Battery street, east by Front street, and north by Filbert street, as laid down on said official map.

The defendant offered in evidence a certified copy from the record-of the Becorder’s office of San Francisco County, of a grant dated June 12th, 1847, made by George Hyde, Alcalde of San Francisco, to William Hood, of the said Lot No. 1492, * and also a certified copy of a [82] deed of conveyance, dated March 10th, 1852, from William Hood to the plaintiff, of said Lot No. 1492, describing it as bounded by Battery street on the east, and Union street on the south, as laid down on the city map aforesaid, to the introduction of which the plaintiff objected; but the Court overruled, and these papers were given in evidence. To the opinion of the Court, overruling the exception, the plaintiff excepted. It was proved that, on the 26th day of March, 1848, the hundred vara lot bounded by Union, Front, Filbert and Battery streets, was granted in due form by an Alcalde of San Francisco, to Jacob D. Hoppe, and conveyed by him to the defendant, who has ever since had possession of the lot, by having several store-ships permanently moored on it and used for the storing of goods; by reclaiming a portion of it; by filling in, and by building, some two years before the suit, a blacksmith shop on it, and that this blacksmith shop has been occupied since it was built, by those holding under the defendant. The grant to Jacob D, Hoppe was duly confirmed by the Ayuntamiento of San Francisco, and duly recorded according to the terms of the Act of the Legislature of California, of the 26th of March, 1851, hereinafter mentioned, before the 3d day of April, 1850, in a book of records remaining in the office of the Becorder of San Francisco County, at the time of the passage of the Act of March 26th, 1851, and that the grant to William Hood was confirmed and recorded in like manner. That the plaintiff erected on his lot, and upon the line of Battery street, a valuable block of brick warehouses, for the storage of merchandise, which was commenced soon after the 11th ,of March, 1852, the entrances to which are on Battery street; that the original shore of the Bay of San Francisco, at that line, was about sixty feet west of the west line of Battery street, and before commencing his building, the plaintiff filled in that part of his lot covered with water, and a portion of the width of Battery street adjoining it; that there was a sufficient depth of water, in front of a part of his lot, to enable the plaintiff to land his building materials from boats and lighters, on the embankment in Battery street, opposite his buildings, and he did so land some of his materials without the expense of [83] wharf-* age or cartage; that William Hood, in 1850, and the defendant, jointly contracted with a third person to build a pier or wharf, twenty feet wide, across Battery street, from the northern part of Lot 1492 to a rock visible at high water, within the space bounded by Battery street, Union, Front and Filbert streets, which work was done, the earth and rock of which it was built being taken from Lot 1492. The plaintiff objected to the introduction of the evidence on this point, and excepted to the opinion of the Court allowing it. After this, the defendant continued to fill his lot with earth taken from Lot 1492, and evidence was given by the plaintiff that Hood saw this filling going on and made no objection to it. The plaintiff objected to this evidence, and excepted to the opinion of the Court admitting it. It was proved that soon after the plaintiff commenced his building, the defendant, carried out his embankment, made by filling in, up to or near one of his store-ships, permanently moored on his lot, and directly opposite the plaintiff’s lot, so as to entirely prevent the plaintiff from landing his building materials in Battery street, in front of his building, and so as to deprive the plaintiff of a water front to his lot. In consequence of the said store-ship being permanently moored there, and of the defendant’s embankment being continued to the same, the plaintiff was obliged to land the remainder of his building materials on wharves, at a distance, and at an additional expense for cartage and wharfage of 8500, and the value of his lot was depreciated thereby at least ten per cent. The first filling upon defendant’s lot was upon the ledge of rocks referred to, which is just outside of Battery street, that is to the east of the eastern line of Battery street, and is about twenty-five feet long, a portion of the ledge being visible at high water, and six feet out of water at low tide; the original shore was bold and abrupt, and the water line crossed the Lot 1492 about sixty feet west of the western line of Battery street, and before the filling referred to was clone, there was deep water between this ledge of rock and the shore.