Weber v. Gill
Synopsis
Stockton—Duty op Department op Streets and Wharves—Removal of Obstructions to Watercourses—Ordinance. — Under the terms of the charter of the city of Stockton, approved March 2, 1889 (Stats. 1889, p. 577), it is the duty of the department of streets and wharves to see that the watercourses and channels are not obstructed by anything which will cause the waters thereof to overflow and injure or destroy the public streets or property of the city, and no ordinance of the city eouncil is necessary in order to authorize the department to remove such obstructions.
Id. —Deposit in Slough by Act op United States—Improvement op Navigation —Right of City to Remove Deposit.—The fact that the deposit sought to be removed from the slough is due to the- acts of the United States government in improving the navigable portion of the stream below does not affect the right of the city to cause it to be removed. The city has the right to remove obstructions from a natural watercourse so as to preserve it in its natural form, without regard to the cause of such obstruction.
In. — Construction op Charter—Authority over Channel op Slough.—The act of March 23, 1872 (Stats. 1871-72, p. 540), authorizing the city authorities of Stockton to widen and deepen the channel of Mormon slough, and providing for condemnation proceedings therefor, was intended to provide against overflow, but does not prevent action under authority of the department of streets and wharves to remove a deposit of earth which has partially filled up the channel of the slough, and which if allowed to remain will tend to cause an overflow of the waters and an injury to property of the city, if there is no removal of land belonging to a private person, and no attempt to widen or deepen the channel.
The Court. — This is an action to enjoin the defendant from removing earth from the channel of Mormon slough, a natural watercourse within the corporate limits of the city of Stockton. The earth referred to is sedimentary deposits brought down by the waters of the channel. The facts agreed upon show that “ for the protection from overflow and destruction of the property of and in said city, and the public streets and bridges and navigable waters of said Mormon channel, it was at all times [463]mentioned in the complaint, and now is necessary to remove, or cause to be removed, said sedimentary deposits aforesaid in said Mormon channel.” The quantity of earth deposited has been increased by the construction under the direction of the United Sl.ates government, for the purpose of protecting the navigable "waters of the San Joaquin River, Stockton channel, and that porti on of Mormon channel lying west of Center Street, of restrai ning dams across Mormon channel below the point where defendant has been excavating and east of Center Street. The effect of these dams has been to make a restraining basin of Mormon slough above the points where they were erected. The street from which the earth was removed crosses the slough, but has not been used as a highway for the reason that it has never been bridged. The blocks of land described in the complaint, in front of which the digging was.done, are owned by the plaintiffs. The defendant claims the right to remove the earth under a resolution of the city council and a permit from the board of public works.
It is claimed by the appellants that the resolution of the city council and the permit given by the board of public works are void; that the work should have been done in accordance with the act of March 23, 1872 (Stats. 1871—72, p. 540); but that if the council or board of public works is clothed with the right to authorize the removal of earth from the streets, such authority can be granted only by ordinance.
We do not think the contentions of the appellants are sound. The charter of the city of Stockton, a ¡¡proved by the legislature March 2, 1389 (Stats. 1889, p. 577), provides: —
“Sec. 30. The council shall have power to ' pass ordinances. . . .
“9. To regulate, under the superintendence of a board of public works, the moving and anchoring of vessels within the waters of the city, and to prevent obstruction to the free navigation of the same.”
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