Dana v. Jackson St. Wharf Co.
Before: Shafter
Synopsis
Land Gained from the Sea in the Harbor of San Francisco.—The doctrine that lands gained from-the sea hy washing up of sand or earth hy little and little become the property of the owner of the land adjoining, does not apply to a marine increase of alluvion caused by a purpresture, by the erection of a wharf in a public harbor.
Title to Land beyond Water Front of San Francisco.—The owner of a lot on the water front of San Francisco does not become the owner of land adjoining* the lot and lying in the harbor beyond it, which land has been gained from the sea hy the gradual accretion of sand and earth caused by a purpresture, by the erection of a wharf in the public harbor beyond it.
Right to build Wharf in Bay of San Francisco.—The owner of a lot on the water front of San Francisco has no right, without a license, to wharf out from his own land into the hay.
Riparian Proprietor on Navigable Water.—At common law a riparian proprietor on navigable water has no right to wharf out against his own land.
Right to sue for Purpresture in Bay of San Francisco.—In case of purpresture or encroachment by the erection of a wharf in the Bay of San Francisco beyond the city front, the right to recover possession is in the people, and not in the owner of the land adjoining on the city front.
Riparian Proprietor.—The owner of a .lot upon the water front of San Francisco, as established hy statute, below low water mark, is not a “ riparian proprietor ** in the sens! in which that term is used in the law of tide waters, for the water front of San Francisco is of statutory creation.
Increase of Land on Water Front of San Francisco.—In case of an increase of land by the accretion of alluvion in the bay on the water front of San Francisco, as established by statute, the owner of the lot adjacent has no right of entry thereon to the exclusion of the State, nor can he maintain ejectment against a stranger.
By the Court, Shafter, J.: Ejectment. It appears by the findings that the plaintiff owns a water lot in San Francisco immediately abutting upon the water front, as established by the Act ofMarch 5th, 1851, and that he has so owned the lot since 1855. That the defendants in that year entered upon the demanded premises and “ made an erection thereon, annexed or attached thereto and [120]adjoining the water lot of the plaintiff, by driving a large number of piles, capping the same, and covering over the space with lumber and planking, so that said piece of land was entirely reclaimed from the water, and continued to fill up and be reclaimed; so that the same became and is totally unfit for any purpose of navigation, and is a permanent accretion by artificial and natural causes to the said water lot; and the defendant has occupied and used the same as a wharf and landing place for vessels and their cargoes, and continues to claim and occupy the same.”
As to the lands gained from the sea by alluvion, i. e. by the washing up of sand or earth, so as in time to make terra firma, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. (2 Bl. Com. 61.) The findings, however, make a case of purpresture, or encroachment, by the erection of a wharf in a public harbor, and not a case of marine increase by alluvion, within the definition of that term as fixed by the foregoing citation.
It is claimed, however, that the plaintiff is a riparian owner, and as such has a right to “ wharf out ” against his own land; and therefore that the wharf,' though built by the defendant, inures to the plaintiff’s advantage; and that the' present right of entry thereon is vested in him and not in the people.
A riparian proprietor on navigable water has no right at common law to wharf out against his own land. By the common law any erection below high water mark, without license, is regarded as an encroachment and intrusion on the King’s soil, which the King may demolish, seize or arrent at his pleasure. (Ang. on T. W. 199.) This shows decisively that in cases of purpresture the right of entry is not in the adjacent land owner but in the crown. It has been held in some of the States that the riparian proprietor owns the soil between high and low mater mark, or that he is at least so far interested in it that he can wharf out to the line of low water as against the people, if the wharf does not amount to a nuisance. But
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