Shirley v. Bishop

Foote, C. Action to prevent the construction of a wharf and to cause the removal of a portion thereof already constructed. The plaintiffs recovered judgment, there was no motion for a new [545]trial, and the cause comes to this court on the judgment roll alone.

Upon all material issues made by the pleadings, the findings were sufficient.

Among other facts it appears by the record that the plaintiffs are the owners of a block of land in the city of Benicia, which is bounded on the east by the navigable waters of the Straits of Carquinez; that by an act of the legislature of this State, approved March 21, 1868, “a permanent water front of the city of Benicia was established ”; that by said act the easterly line df lots 10 and 14 of said block of land were declared to be a part of said permanent water front; that the defendants were attempting to build a wharf out into the Straits of Carquinez, which if constructed would approach to within about three feet of the easterly line of lots 10 and 14 of plaintiff’s block of land, and would run parallel with such line for- about sixty feet, would be an obstruction to the free use by plaintiffs of said block of land, and permanently interfere with the comfortable enjoyment thereof. It would be a nuisance to the plaintiffs and their said property, and inflict on them serious and irreparable injury; that the piles already driven by the defendants at the time of the commencement of the action, and of the restraining order issued by the court below, constitute a material interference with the enjoyment by the plaintiffs of their said property, and was, and is, and if not restrained will continue to be, a nuisance to them and said property.

There was no compensation “first made or paid” plaintiffs for the damages to their said property, as should have been done in order to meet the requirements of section 14, article i., of the Constitution of California. (Reardon v. San Francisco, 66 Cal. 492.) The wharf if built by defendants as contemplated would deprive the plaintiffs of ingress and egress to and from their lots and the navigable waters of the State.

On the eastern side of said lots the navigable waters of the Straits of Carquinez are a public highway. (Pol. Code, § 2348.) The free access to that public water highway was a vested right and privilege that belonged to the plaintiffs, and of which they could not be deprived in the manner claimed as legal in this contention. (Pol. Code, § 2919; Schulte v. N. P. T. Co. 50 Cal.