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VOLUME LXXYT»?<NO. 47.
OAKLAND GIVEN HER WATER FRONT.
The Southern Pacific Railroad Company Had
No Valid Title.
VICTORY FOR THE CITY.
Judge Ogden Follows the
Rulings Laid Down in the
Chicago Decisions.
AN APPEAL IS TO BE TAKEN.
The Old Deed to Carpentler Was
Void, as It Was Agralnst Pub
lic Policy.
Judge Ogden decided yesterday that the
water-front property which was illegally
deeded by Amadee Marier to Horace Car
pentier in 1852 is and always has been the
property of the city of Oakland.
His Honor had given notice that at the
opening of court yesterday he would ren
der his decision in the celebrated suit
brought against the water-front com
pany and allied corporations by the city
of Oakland. The courtroom was crowded
and everybody was in suspense, for, con
trary to precedent, there had been no leak,
and attorneys for both sides were confi
dent and fearful up to the fateful hour.
Promptly at 10 o'clock Judge Ogden
ascended the bench. The proceedings
were somewhat of a disappointment to the
large lobby, which had prepared itself for
a grand-stand play.
' City of Oakland against The Oakland
Water-front Company," said the court.
"Decision in accordance with the written
decision filed." That was ali, and Jndge
Ofden was preparing to leave the bench
when Attorney J. C. Martin of the water
front company said, "I suppose that the
opinion will take the place of findings."
Attorney W. R. Davis of counsel for the
city replied: "If the decision is in our
favor we will prepare findings with pleas
ure and serve the other side with them."
Then a dozen attorneys eagerly scanned
the voluminous opinion. It was necessary
to go entirely through it before a correct
opinion could be formed as to what each
party received under the terms of the de
cision. The railroad company is left in
possession of about eighty acres of water
front land actually in use for purposes o !
commerce. The company also retains ali
wharves that have been built since 1868,
although the land under them belongs to
the city. The decision throughout is
based upon the general principles laid
down in the Chicago lake-front case, and
shows that the course of judicial decisions
in California for many years before the
Chicago decision had not been contrary
thereto, but in accordance with it.
Tne principle is clearly laid down that
the grant to Carpentier was against public
policy. The titles held by the water
front company numbered fourteen, and
the court destroys all of them and holds
that the title to the water-front lands is
invested solely in the city. The city gains
7*70 acres, as computed from the maps,
charts and other evidence introduced dur
ing the trial. The rights of third parties
who may now occupy parcels of the prop
erty do not figure primarily in the de
cision, although Judge Ogden establishes
a principle that the city may have title,
but must make compensation in these
cases. Each of these cases, however, must
be determined on its individual merits.
All improvements that have been made
tinder the provisions of the compromise of
1868, referred to in the decision, are not to
be molested. A large portion of the origi
nal grant to Carpentier of the town of
Oakland is found not to be affected by the
decision, as it is not now within the cor
porate limits of Oakland. This land is
located south of the center line of the
estuary. Title to it, under the decision,
will rest either in the city of Alameda or in
the State.
As the Central and Southern Pacific
companies were not parties to the suit, the
title to the land held by them could not be
directly passed upon in this action, but the
grounds of the present decision are such
that when a case against these two corpor
ations is presented, their asserted title
most go the same way that the f"»ie of the
water-front company has gone.
As soon as Mayor Da vie heard of the de
cision he ordered the biggest flag in the
city's possession to be hoisted over the City
HalL
Ex-Judge Harvey Brown, counsel for the !
water-front company, said yesterday: |
"I have not yet read the decision, but I j
understand it is in favor af the city. The j
case will, of course, be appealed to the
Supreme Court."
WHAT IT MEANS.
Oakland Can Famish Ample Boom for One
Hundred Railroads.
Attorney W. R. Davis, the leading conn-
Bel for the city of Oakland throughout the j
trial, was asked yesterday to express as
Bucci-nctly as possible just what the de- j
cision means.
"Under the decision," he said, "the city I
of Oakland and the public recover every
thing that she could ever need, and the
property thus recovered will furnish ample
room for one hundred railroads with all
their landings, depots and every facility
known to commerce.
"Three principles are also laid down
very clearly.
. "First— That the city's claim and title is
held good, and prevails against all private
claims. This ground of the decision is
based upon the character of the property
concerned, namely: that it is a part of the
bay of San Francisco, is covered by natural
tides, is navigable in fact, and declared
navigable by the Legislature. This por
tion of the opinion follows the contention
of the city and her counsel made from the
beginning, and is in conformity with the
doctrine laid down in the Chicago lake
front case.
"Second— Judge Ogden holds that while
the title to the entire water front described
in the act of 1852 incorporating the old
town of Oakland is vested in the town of
Oakland, a portion of it has now be
come divested by reason of the change in
the boundaries of the present city of Oak
land. I will make this clear. The old town
of O&kland's boundary line ran around
the east shore of Lake Merrttt along
The San Francisco Call.
the north side of the estuary,
around the east end, along the south
line of the estuary on the Ala
meda side, and thence southwesterly
from Alameda Point to ship channel, thus
taking in not only the water front of Oak
land but also the water front of what is
now tne city of Alameda, both its northern
and western water front. In later years
the boundaries of the city of Oakland and
its present boundary on the south is as
follows: A line running from the eastern
end of the canal and estuary down to the
center of the estuary ; thence along its
center westward to its mouth, and thence
to ship channel in the bay, thus excluding
from the present city of Oakland the
southern half of the estuary and a paral
lelogram extending southwesterly about
half a mile wide and two miles long.
This southern strip, Judge Ogden holds, is
no longer within the jurisdiction and con
trol of the city of Oakland, from which it
would follow that it is either under the
jurisdiction and control of the city of Ala
meda or under the jurisdiction and control
of the State of California directly.
"Third— He holds that where the water
front company has made or caused to be
made improvements actually used in aid
of commerce and navigation, as to
those small pieces the city is estopped to
take possession or take them away from
the water-front company on the doctrine
of estoppel founded practically on natural
justice— i. c., if the city after the com
promise of 1868 has stood by and seen the
defendant expend money on certain par
cels and use them not in violation of but
in aid of commerce and navigation, she,
the city, ought not now to be permitted to
take them away from such defendant so
using these parcels. It is to be observed
that the nature of the use is included in
his determination, namely, that the use is
not an exclusive private uee, but one de
voted to commerce and navigation, which
subserves the public use and benefit."
THE DECISION.
Carpentier'a Grant Was an Illegal Delega
tion of Power.
After reciting the text of the case the
opinion proceeds:
The land embraced within the description
contained in the complaint includes all the
land lying below the line of ordinary high
water and within the boundaries of the city of
Oakland as originally fixed by the statutes in
corporating said city (save that portion now
known as Lake Merritt.) In all it includes
nearly 8000 acres of submerged land.
The complaint alleges that the plaintiff is the
owner in fee of said lands, but that the title
thereto is vested in, and held, by the plaintiff
as a public corporation and governmental
agency of the State of California for the com
mon benefit of all the people of the State.
SUBSTANCE OF THE ANSWER.
The answer denies the title of the plaintiff in
and to any portion of said lands, and alleges
title in fee in the defendant, except certain
portions of said harbor and bay deeded to third
parties, and two pieces of said harbor lands
heretofore deeded to plaintiff ; one, a tract of
land situated below Peralta street; and one, a
tract of land situated in said harbor between
the. center line of Franklin street and the
easterly line of Webster street in said city.
The answer also avers that the Government
of the United States, through its engineers and
the Secretary of War, has established a bulk
head and a pierhead line of 6aid harbor; that
I said bulk line is mainly established upon the
line of ordinary low-water mark, and that the
pierhead line is established between said bulk
head line and the channel of the estuary; and
that all the land in said harbor and bay beyond
the pierhead line is solely under the control
and management of the Government of the
United States; and, as to these last-named
lands, situated below the pierhead lines, the
defendant dedicated the whole thereof to the
Government of the United States for a harbor
and for commercial purposes; but, conceding,
however, that without such dedication the
Government has full power and authority, with
or without the consent of the owner in fee, to
appropriate the same for public uses in the
interest of commerce and navigation.
The proceedings of the Board of Trus
SAN FRANCISCO, WEDNESDAY MORNING, JULY 17, 1895.
tees who conveyed the land to Carpentisr
are reviewed at great length, and the testi*
mony on both sides is carefully weighed.
Much reference is made and many quota
tions are taken from the Chicago decision,
and the definition of public lands is made
very clear and exhaustive.
Coming down to the conclusions of fact,
the court says :
THE CITY'S RIGHTS.
It will thus be seen that, admitting for the
sake of the argument, by charter the city of
Oakland was granted the power ordinarily
vested in the Legislature, to regulate and de
clare the uses to which these lands were to be
put— to fix a water-front boundary and to fill
and reclaim lands lying below high-tide mark —
yet a grant of such power to a private person
or corporation amounts to an abdication of one
of the duties devolving upon the municipality
or the State.
But I have looked in vain for any express au
thority conferred by the Legislature upon
either the town or city of Oakland whereby it
was given tne right to fill in or change the
THE HON. FRANK B. OGDEN, JUDGE OF THE SUPERIOR COURT QV ALAMEDA COUNTY.
[From a photograph.]
public character of any considerable portion
of the tide lands within its borders.
Upon the contrary, by its solemn act passev.
in 1851, the Legislature declared the estuary
of San Antonio from its month to the Embar
cadero to be navigable, thereby dedicating it
to public use.
The statutes of 1867-68 empowered the city
of Oakland to issue bonds for removing obj
structions at the mouth of the estuary and to
keep the channel of said creek open for navi
gation.
In 1859 the Legislature passed an act to rm
prove the navigation of San Antonio Creek and
constituting the Board of Supervisors a board
of commissioners for that purpose.
In 1875 the Legislature (statutes 1875-76, page
THE PRESENT CONDITION OF THE OLD CITY HALL.
{Sketched by a "ValV* artist.}
567) granted the right to the city of Oakland
to open streets to the channel of said creek and
to deep water in the bay of San Francisco.
This is the first express authority Riven to
the city of Oakland to encroach upon the
navigable waters, save by the erection of
wharves.
It has been contended by defendant that
because the United States through its War
Department has adopted a "plan of Oakland
harbor," whereon is delineated a pierhead and
bulkhead lines, without further legisla
tion it has the right to fill in up to the bulk
head line and construct piers up to the pier
head line.
Under the Federal constitution Congress is
given the power to regulate commerce, etc.,
and it has been held that whenever Congress
exercises this form of regulation, State regula
tion must invariably give way. But this regu
lation is of a political nature.
POWER OF THE LEGISLATURE.
Were it not for the language used in the
Chicago case already quoted it would remain
extremely doubtful whether the Legislature
has the power to delegate to municipalities the
sole power of controlling the governing tide
lands and navigable waters thereon.
Ordinarily no greater power can be granted
a municipality over navigable waters and the
land thereunder than can be granted to muni-
cipalities **T control of their streets and
hi«r>- ..„.
■-- it r would follow from the views above ex
pressed that the conveyance from the town of
Oakland to Carpen tier is void as against public
policy. 1 '•':"... " _ '•.'■■
If void, could the subsequent ordinances of
confirmation cure the defect ?
Confirmation may make good a voidable or
| defeasible estate, but cannot operate upon or
I aid an estate which is void in law.
can the act of the Legislature in con
firming the ordinances of the Board of Trustees
be coustrued into a new grant of these tide
lands to Carpentier. Nothing short of a very
explicit expression by the Legislature would
justify a court in holding that it intended to
ONE URGED SILVER, THE OTHER GOLD
part with its title to land held in tmst for the
benefit of the people, to be converted into
private ownership. (Conceding that it had
that power.)
No case has been presented to the court
wherein it has been squarely held that a grant
of all the land under naTigable waters imme
diately in front of and around a maritime city
was valid.
At common law all streams in which the tide
ebbs and flows are navigable streams, and this
rule does not depend upon the navigability or
non-navigability in fact of a stream, but upon
the criterion afforded by the influx and reflux
of the tide.
the learned jurist who wrote the opinion in
the case of Illinois Central Railroad Company
vs. Illinois (supra) there said:
"We cannot, It Is true, cite any authority
where a grant of this kind has been held in
valid, for we believe that no instance exists
where the harbor of a great city and its com
merce have been allowed to pass into the con
trol of any private corporation. But the deci
sions are numerous which declare th&t such
property is held by the State by virtue of her
sovereignty in trust for the public. The trust
with which they are held, therefore, is gov
ernmental and cannot be alienated except in
those instances mentioned of parcels used in
the improvement of the interest thus held."
The Supreme Court of this State has not
varied from the rule here stated, except in cer
tain cases, where they have held that a patent
of the United States confirmatory ot a Mexican
grant conveyed the land below tide waters.
This was upon the theory that where grants
had been made by the Mexican Government,
while sovereign of California territory, this
Government was bound by the treaty of Guada
lupe Hidalgo to confirm. And even in the ab
sence of such a treaty a refusal to confirm
Editor Horr and Author Harvey Began the
Great Eight-Day Battle.
these claims would be ft violation of national
faith.
PROTECTION OF TIDE LANDB.
With such jealous eyes has our Supreme
Court guarded our tide lands, that in constru
ing acts of the Legislature they have until the
passage of the act of 1872 held that it was
never intended to sell tide lands upon the
shores of the sea.
It is hard to conceive how a grant oi an ex
tended strip of tide lands immediately in front
of a maritime city would not interfere with
navigation and commerce.
It is the history of nearly every harbor that
at the mouth there forms a bar, rendering nav
igation either difficult or impossible. This
must be removed either by dredging or by a
system of jetties. In the case of the Oakland
harbor by both.
If it be true that the defendant herein owns
the fee in the bed of the estuary, then no dredg
ing can take place therein without its consent;
for the statutes make it larceny to sever the
realty of another with felonious intent.
THE GRANT IS VOID.
Upon other grounds must we hold the grant
void. It seems, and its effect is, to take away
from riparian owners vested rights given them
by the common law.
In the case at bar the land in question is
bounded by the proprietary lands conveyed by
the United States to ita grantees. Until the
Legislature shall by express enactment or by
implication take from them this right existing
at common law, we are forced to believe that
littoral proprietors have a riparian right In the
waters in front of their lands.
This right, however, is not a title in the Boil
below high water mark, nor a right to build
thereon, but a right of access only, analogous
to that of the abutter upon a highway. And
also the right to the secretion and alluvion.
While the State may either expressly or
impliedly take away this right by legislation,
as it probably did in the case of San Francisco
by giving to the riparian owner a highway
upon the land extending to the line of tide
waters, yet in the case at bar no new water
line front was fixed and the lines fixed by
nature were left unchanged by legislation,
either municipal or State.
We do not mean to be understood as holding
that, this right cannot be taken at anytime,
or under any circumstances without compen
sation: but only that it cannot be taken unless
the general good will suffer by not taking it
away.
THE WHARP RIGHTB.
While the pleas oi estoppel and statute of
limitations can avail the defendant nothing as
to all the land lying under tide water not
actually reduced to possession, yet a different
rule might prevail with reference to the par
cels built upon by substantial wharves and
used in aid of trade and commerce. There are
many cases holding that a title to tide lands
cannot be acquired by adverse possession, but
In all these cases the occupation was by im
plied license.
The grant to the defendant might be consid
ered to an extent an express license, depend
ing upon the size of the strip taken, the use to
which it was put, whether built upon by con
sent of the riparian owner, the nature of the
improvement.* when constructed, etc
WHO OWNS TnS WHARVES?
It maybe said that all wharves erected under
the thirty-seven-year contract must now revert
to the city. All wharves erected upon the
faith of the declaration of the city of Oakland
that the defendant was the owner of the prop
erty in dispute cannot be taken without mak
ing compensation therefor, unless it should
appear that such wharves constitute an ob-
Btruction to commerce.
No testimony has been adduced on the part
of the defendant, however, sufficient to bring
the case within this rule.
While this might be said of the defendant's
case, yet the answer can be made that the
plaintiff as to the wharves in question has
not made out its case, while it sufficiently ap
pears that the title to the land below tide water
beneath them is in the city, yet it nowhere
appears that the defendant has not an ease
ment thereon for the purposes for which the
wharves were built.
| JEven where wharves are built by volunteers
on tide waters courts of equity have no power
to decree their destruction unless it is shown
they are a nuisance.
"Wharves in themselves considered are not
of evil consequence, but the reverse."
"The right is in the executive arm of the
Government to order the abatement of wharves,
moles or embankments on the line of navig-
on Second Page.
PRICE FIVE CENTS.
NOTED PERSONS PRESENT
Champions of the Rival Metals
Made Heated but Telling
Arguments.
"COIN'SS SCHOOL" WAS SCORED.
During: the Debate the Speakers
Had Hard Work to Preserve
Their Tempers.
CHICAGO, 111., July 16.— Two men met
in a little room at the Illinois Club this
afternoon, and began a spirited contest of
National moment, one fighting for silver
and the other for gold, with all the intel
lectual powers, facts and authorities at
their command. One of them was Roswell
G. Horr, once a member of Congress from
Michigan, now an editorial writer on the
New York Tribune, and the other was W.
H. Harvey of Chicago, author of "Coin's
Financial School." Mr. Horr championed
the cause of gold, while Mr. Harvey threw
down the gauntlet for silver.
The privilege of being present at this
momentous contest was accorded to few.
There were seats for about 200 persons in
the assembly-room of the clubhouse, but
only a little over half that number were
present. Ex-Congressman J. C. Sibley of
Pennsylvania, a leader of the free-silver
forces in the East, occupied a prominent
seat.
He will remain during the debate unless
business engagements prevent. A promi
nent advocate of the gold standard was A.
B. Humphrey, secretary of the National
League of Republican clubs. Others pres
ent were W. W. Meagher of the Bimetallic
League; Lyman J. Gage, referee for Mr.
Horr; Fred W. Peck and A. H. Revell of
Chicago, L. G. Powers of St. Paul, Dr. S.
A. Robinson of New York and Charles H.
Sergei of Chicago. The last three acted as
advisers to Mr. Horr and sat by his side
taking copious notes while Mr. Harvey
spoke. Mr. Harvey consulted little with
anybody. He brought with him a great
pile of authorities for the purpose of sub
stantiating statements made in his book,
to which he frequently referred.
A man with a watch sat at a table near
the speakers, and whenever one had.
spoken eight minutes he would rap loudly
on « call bell. This gave the speaker
warning that he had two minutes more to
conclude his statement. By these stages
of ten minutes each the speakers will pro
ceed for eight days, using only the after
noons and resting Sundays.
Dr. Homer Thomas, president of the
Illinois Club, called the assemblage to
order, briefly setting forth the objects of
the debate. He introduced Hon. H. G.
Miller and ex-Judge William A. Vincent,
both of Chicago, who, he said, would be
judges, and at the conclusion of the con
troversy would decide which had the best
of the novel debate.
Mr. Miller then read the rules which are
to govern. It was, he said, the intention
of the speakers to deliver altogether
140,000 words. Of these. 5000 are to be re
served for use at the end of the discussion.
This will give each a chance to recapitu
late his argument in 2500 words, and 300
words additional will be allowed each con
testant as a rejoinder to his adversary's
closing argument. Mr. Miller stated that
the whole discussion was copyrighted, and
that while it would be given the widest
publicity through the press, it was the in
tention of the principals to preserve the
debate as private property and issue it in
book form.
The debate was started by Mr. Horr,
who referred to the author of "Coin's
Financial School" with some severity. He
said he never read a book containing so
many misstatements.
Mr. Harvey in his opening statement
contented himself with a presentation of his
plan of campaign and told what he would
prove. Mr. Horr wanted to know why the
names of prominent citizens had been
used in Mr. Harvey's book and words put
into their mouths that they had never
used. Harvey replied his book was simply
an allegory and the fact that a little boy
was put in as teacher ought to be enough
to prove to any sensible person that this
was so.
The speakers plunged at once into the
thick of the fight. The argument at all
times was very spirited and both speakers
several times had hard work to preserve
their tempers. Following is a synopsis of
the arguments this afternoon :
After criticizing Mr. Harvey's un
authorized use of Chicago business men's
names, attributing to them statements
which they never uttered, merely for the
sake of allegory, instead of using the names
of fictitious persons, Mr. Horr said:
"Now I come to the motto of the book,
which is this: 'I thank thee. 0 Father,
Lord of heaven and earth, because thou
hast hid these things from the wise and
prudent and hast revealed them unto
babes.' I would like my friend to tell
me why he used that motto. Does he de
sire to intimate that the kind of finance
which he teaches is something that babe*
will understand, but that people who
know anything will never be able to com
prehend?
"Of course I cannot conceive what the
object of the motto is, but the motto
Makes the
Weak Strong
Hood's Sarsaparilla tones and strengthens
the digestive organs, creates an appetite,
and gives refreshing sleep. Remember
Hood's
Sarsaparilla
Is the One True Blood Purifier.
HonH'c Pi lie the after-dinner pill and
nOOCI S fIHS family cathartic. 25c
