Wood v. City of San Francisco
Before: Heydeneeldt, Murray
Synopsis
Appeal from tbe Superior Court of the City of San Francisco.
* This was an action of ejectment by plaintiff, [191] purchaser of Broadway Wharf, under an execution on a judgment of Peter Smith v. The City of San Francisco. The facts of the ease, which are stated in the opinion of the Court, were agreed upon by the parties, except the dedication of the premises as a public street. Upon this point there was an admission by agreement of the following facts: The map exhibited and offered in evidence was the official map of San Francisco, Broadway was never extended as a street beyond Front street. The city has never laid out or sold any lots beyond the line of Front street, on Broadway. The line on the map of the city, outside of Front street, at the foot of Broadway, was the outside line of the city survey. The distance from the beach to the west line of Front street is about 170 feet. From tbe west side of Front street to tbe water lot boundary, tbe distance is 412 feet; tbe width of tbe present wbarf 36 feet, and length 500 feet.
Tbe original width of Front street (as platted under tbe Ayuntamiento), at tbe foot of Broadway, was 50 varas. In tbe summer of 1851, tbe Common Council of San Francisco, by ordinance, provided that tbe width of Front street, from Pacific north, should be 20 varas.
On tbe 3d of January, 1850, and prior thereto, lots were sold by tbe Ayuntamiento of San Francisco, in tbe Bay south of Pacific street and west of Front street, as marked and numbered on tbe map in evidence, but none north of Pacific street and east of Front street. In 1848, a narrow wbarf was built for foot passengers from tbe foot of Broadway easterly, extending to Front street; this' was built by private individuals, with tbe authority of tbe Legislature and Council of tbe city, and was held by the builders, and on which tolls were received by them. Tbe wbarf was destroyed by fire in 1851. In tbe summer of 1850, one March, under a contract of lease from tbe Ayuntamiento of tbe city, erected a wbarf extending from tbe foot of Broadway, westerly, beyond Front street; this was 36 feet wide. Before it was completed it was bought by tbe city from March. It remained in this condition until it was conveyed by tbe city to tbe Commissioners of tbe Sinking Fund. [192] * Tbe defendants, Commissioners of tbe Funded
Debt of tbe City of San Francisco, were tbe successors in office of tbe Commissioners of tbe Sinking Fund Debt.
Tbe case was tried by tbe Court without a jury. After a judgment for tbe plaintiff, tbe defendants moved for a new trial, which was refused, and they appealed.
Wharfages are not subject to execution. (4 Mass. 597.) Tbe collection of tolls does not take away tbe character of a public easement. (21 Wend. 112.)
Mr. Oh. J. Murray delivered the opinion of the Court.
Mr. J. Heydeneeldt concurred. * This was an action to recover certain premises in [193] the City of San Francisco, known as the Broadway Wharf and the rights appurtenant thereto, purchased by the respondent at Sheriff’s sale, upon an execution against the City of San Francisco,
At the time of the rendition of the judgment, Broadway street had not been extended beyond the line of Front street by any act of the municipal authorities.
It will be observed, also, that Broadway street, or that portion of it which is embraced in this controversy, was laid out on land belonging to the State by virtue of her sover[194]eignty, and which was not conveyed to the city until the Ac* of March 26th, 1851, which confirmed to the City of San Francisco certain beach and water property, marked on an official map of said city, referred to in said Act, on which map Broadway was laid down as a public street; and that the front line of the city was extended beyond Front street, the former termination of Broadway.
Previous to the rendition of judgment, as well as the passage of the Act referred to, the Sinking Fund Commissioners had entered into a contract with certain individuals, to construct a wharf upon Broadway street, giving to such company the right to collect wharfage and dockage for a term of years, upon the payment of a certain percentage of the proceeds, etc., which contract, was confirmed by the Legislature on the 1st of May, 1851.
Let us first inquire by what authority this contract was confirmed by the Legislature. The premises or land upon which the wharf was situated or to be constructed, within the water line of the city, had passed from the State, by the Act of 26th March, 1851, and the Legislature had no authority to interfere with its disposition,-
The contract of the Sinking Fund Commissioners was a nullity. The city had no right in the premises, except that acquired by virtue of the Act of March 26th, and any previous, or even subsequent attempt, to convert a public easement to private use, or to defeat the right of way over a public street of the city, was beyond the power of the corporation.
[194] *It is contended that there was no dedication of the space between Front street and the water line of the city to public uses; and this whole argument is based upon the fact, that on the official map of the city, by which the legislative grant of beach and water lots was made, said street was not carried out to the front line of the city, while California and other parallel streets were. To my mind this raised no such presumption. Where a city is laid out with streets running to the water, such streets should be held to continue on to the high water, if the city front is afterwards filled in, or the space enlarged, by accretion or
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