Pacific Coast Steamship Co. v. Kimball

Temple, J. This action was brought to obtain an injunction restraining defendants from landing passengers and freight at plaintiff’s wharf at Monterey.

In 1868 the legislature granted to the city of Monterey all the water front included within the corporate limits for the use and benefit of the city, with the condition that it should not be subject to execution, but might be leased for a period not to exceed ten years by the city trustees, “in such manner and upon such terms as may by them be deemed most advantageous.”

Monterey contains about two thousand inhabitants, and has railroad connections as well-as its advantages as a seaport. In 1880 it leased to the plaintiff a small portion of its water front, upon which was an old wharf which, however, had become so dilapidated as to be unsafe. The indenture of lease contained the following: “In consideration whereof the said parties of the second part do hereby agree to erect a wharf on the said premises, and to keep the same in good repair during the term of this lease. Said parties of the second part shall be entitled to collect wharfage on goods and merchandise passing over said wharf at the rate of fifty cents per ton, and such rates of dockage for vessels as is ordinarily charged at other wharves on the southern coast. And it is hereby agreed and understood by the parties hereunto that in case of failure by the party of the second part to keep said wharf in repair, or if the same shall become dilapidated and unfit for use and should so continue for the space of ninety days after notice from the party of the first part to repair the same, then this lease shall cease, and thereafter shall be null and void.”

Plaintiff owned and operated several steamships which made weekly trips between different ports of [416]California, and was a carrier of freight and passengers. It at once, after obtaining the lease, proceeded to rebuild the wharf, and occupied and used it exclusively for its own business. It so continued to use the wharf up to 1888, when the present lease was obtained. During that period no vessels made use of the wharf save their own and a few schooners loaded with lumber which used the wharf by plaintiff’s consent.

In 1888 a new lease was obtained from the city identical in terms with the first lease. The order of the city council authorizing the new lease contains the following: “The lease to be executed and entered into with said company upon the condition that said company shall promise to keep said wharf in good repair, and shall not charge to exceed fifty cents per ton wharfage.”