Cardwell v. County of Sacramento

Belcher, C. C. This action was brought to enjoin the defendants from constructing a bridge without a draw across the American River, and thereby obstructing its navigation.

In the complaint, it is alleged, in substance, that plaintiff owns a large tract of land bordering on the American River, about twenty miles above its mouth; that during the winter and spring months of the year the river is navigable from its mouth to a point above the land of plaintiff, and by the use of steamboats and other vessels he is able to transport the commodities produced and existing on his land down the American River to the Sacramento River, and thence to the cities of Sacramento and San Francisco, which are his principal markets; that the county of Sacramento has contracted with the other defendants for the construction of a bridge across the American River, at a point about a mile above its mouth, which, under the contract, is to be made without a draw or other opening for the passage of vessels, and it is to be so low that when the river is navigable—that is, at a time of high water—no vessels capable of transporting the products of plaintiff’s land can pass beneath it; that unless restrained, the defendants will proceed to construct the bridge according to the contract, and that if it is so constructed, it will obstruct the navigation of the river, and cause special damage to the plaintiff.

A general demurrer was interposed and sustained to the complaint, and the plaintiff declining to amend, judgment was thereupon entered dismissing the action. The appeal is from this judgment.

It is argued for appellant that the demurrer admits that the American River is a navigable stream, and that section 2875 of the Political Code expressly prohibits the construction of bridges across navigable streams without draws, or so as to obstruct navigation, and section 3479 of the Civil Code provides that anything which obstructs [349]the free passage or use in the customary manner of any navigable river or stream, is a nuisance; that the demurrer was therefore improperly sustained., and the judgment should be reversed.

But the averment in the complaint is only that the river is navigable at certain seasons of the year when the water is high, and not generally that it is a navigable stream. What is meant by the words “navigable streams,” as used in the section of the code cited ? Do the words include all streams that can be navigated in times of high water? If so, then many small creeks and sloughs in the state, though they may be nearly dry during the larger part of the year, must be treated as navigable streams, across which bridges “ must be so constructed as not to obstruct navigation, and must have a draw or swing of sufficient space or span to permit the safe, convenient, and expeditious passage at all times of any steamer, vessel, or raft which may navigate the stream or water bridged.” We do not think the words were intended to have the broad meaning suggested, or to include any streams other than such as have been declared navigable by the legislature, or ate generally navigable in fact,— that is to say, during ordinary stages of water.