Alameda County v. United States, 9748.

• Decision Date: 20 December 1941
• Docket Number: No. 9748.,9748.
• Citation: 124 F.2d 611
• Parties: ALAMEDA COUNTY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

124 F.2d 611 (1941)

ALAMEDA COUNTY v. UNITED STATES.

No. 9748.

Circuit Court of Appeals, Ninth Circuit.

December 20, 1941.

Ralph E. Hoyt, Dist. Atty., and J. F. Coakley, Robert H. McCreary, and Cecil Mosbacher, Deputies, all of Oakland, Cal., for appellant.

Francis M. Shea, Asst. Atty. Gen., Sidney J. Kaplan, Sp. Asst. to Atty. Gen., Brice Toole, Atty., Dept. of Justice, of Washington, D.C., and Frank J. Hennessy, U. S. Atty., and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Decree was entered for the United States in a suit brought by it against appellant for specific performance of a contract and for an adjudication of the rights thereunder.

The east shore line of San Francisco Bay, opposite the city of Oakland, runs about due south, and then southeast of San Leandro Bay (which is an arm of San Francisco Bay), then northeast and around San Leandro Bay, making a peninsula to the south and west of San Leandro Bay. About parallel with the southeast shore line mentioned above and north thereof is a channel extending southeasterly for about seven miles, which ended there prior to the construction of the Tidal Canal hereafter mentioned, thus making a peninsula, bounded by the channel on the north, San Francisco Bay on the west and south, and San Leandro Bay on the southeast.

By the Act of March 3, 1873, c. 233, § 2, 17 Stat. 565, the Secretary of War was directed to cause an examination or survey at San Antonio Creek, San Francisco Bay. The creek mentioned was apparently near the project in question. Report of the Chief of Engineers was made on February 16, 1874, proposing among other things, a canal to join the channel above mentioned with San Leandro Bay, for the purpose of permitting a scouring action in the channel by the ebb tide from San Leandro Bay. An appropriation of $100,000 for the improvement of Oakland Harbor was made on June 23, 1874,¹ and another appropriation of a like sum on March 3, 1875.²

On March 4, 1876, appellee commenced proceedings in a state court of California to condemn certain lands and railroad rights of way. On November 4, 1882, decree was entered in the state court condemning certain lands and rights of way. The decree stated that the defendant railroad company had claimed no damages, and contained the following provision: "It is further ordered, adjudged and decreed that in the construction of said canal the plaintiff at its own expense construct and keep in repair suitable bridges across the same on all roads now used as public highways, crossing the line of said canal and also suitable railroad bridges on the present railroad tracks crossing the line of said canal." Railroad tracks were located at two places over the line of the canal, and on March 7, 1901, the United States paid the successor of the railroad $50,000 to be relieved of its duty to build a bridge at one of the points.

The United States began construction of the canal and the bridges and completed construction of the Park Street Bridge, which is closest to the channel above mentioned in 1891. It completed construction of the High Street Bridge, which is farthest from the channel, and the Fruitvale Avenue Bridge, which is about midway between the other two, in 1901. The bridges were drawbridges of the swing type, turning or pivoting horizontally upon central piers. They were equipped with hand-operated machinery, and approximately thirty minutes were required to open them, and about the same time was required to close them. The Fruitvale Avenue Bridge is a combination railroad, vehicular and pedestrian bridge, the railroad tracks and right of way thereon being permanent, integral and inseparable parts of such bridge. The tidal canal was constructed to a depth of from eight to ten feet below the plane of mean lower low water, and was completed in 1903.

On December 6, 1909, appellant's Board of Supervisors adopted a resolution providing that appellant "* * * hereby agrees to accept said bridges * * * and to assume all costs of future repair, operation and replacement of said bridges, provided that they and each of them be placed in such condition and repair by the United States of America, prior to such acceptance by the said County of Alameda, in the State of California, that said bridges, and each of them may be operated by electricity, and provided further that the United States shall, under such terms and conditions as it may see fit, lease the waterfront of the tidal canal and establish harbor lines so as to permit the construction of wharves and docks * * *" It was recited in the resolution that the portion of the tidal canal between the bridges "has never been open to navigation". At that time, the United States had occasionally opened and closed the bridges at the request of private interests for the passage of vessels, private interests occasionally opened and closed the bridges on their own responsibility for the passage of vessels, and boats, barges and scows which could clear said bridges when closed plied up and down the canal.

In Senate Report No. 527, Sixty-First Cong., 2nd Sess., p. 615, dated April 11, 1910, on the Rivers and Harbors Act of June 25, 1910, it is said: "In connection with this improvement a Tidal Canal connecting San Leandro Bay with Oakland Channel was excavated by the United States. This canal was intended for flushing purposes only, and no provision was made for operation of bridges over it which are owned by the United States and are provided with draws. A demand appears to have arisen for the opening of the canal to navigation, as explained in the district officer's report, but the bridges form an impediment to such use, and he recommends that they be turned over to local authorities, who have signified their willingness to accept and operate them."

The act last mentioned³ made an appropriation for the Oakland Harbor, and provided: "* * * That the three bridges heretofore built by the United States in connection with this improvement may be turned over to the local authorities to be maintained and operated by them upon such terms as to transfer and control as in the discretion of the Secretary of War may be equitable and just to the United States and to said local authorities: Provided further, That of the appropriation herein made so much as shall be necessary may be expended for such alterations and repairs to said bridges as in the discretion of the Secretary of War may be essential to meet the terms of said transfer."

Pursuant to that act the Secretary of War on September 3, 1910, granted to appellant a license, "revocable at will by the Secretary of War, to assume control of the said three (3) bridges" subject to five conditions, summarized as follows: (1) That the bridges should be open to all public traffic without charge and no exclusive privilege or right-of-way should be granted to any street car or other traffic corporation; (2) that for the purpose of securing compliance with the terms of the permit, the bridges should be under the supervision of an army engineer officer; (3) that the United States should put the bridges in condition for operation of their draws by electrical power, furnishing and installing new electrical machinery together with the necessary cables and wiring, furnishing bridge-tenders' houses and highway gates, and also overhauling all old machinery; (4) that appellant's Board of Supervisors should "maintain these bridges, attending to all necessary repairs, and rebuilding same if at any time burned, destroyed, or become inadequate for the purpose they serve"; and (5) that appellant's Board of Supervisors should maintain the necessary number of bridge-tenders at each bridge to insure prompt opening and closing of the draws.

On June 6, 1913, the United States established harbor lines, and made available to adjacent property owners, a twenty-five foot strip of property along each side of the canal for the construction of wharves and warehouses. The total cost to the United States for the repair and installation of electrical equipment for the bridges was $21,358.80.

On November 10, 1913, appellant's Board of Supervisors adopted a resolution, reciting that it had previously adopted the resolution to assume all costs of future repair, operation and replacement of the bridges on the conditions therein mentioned, that the license above mentioned had been issued, and that the United States had performed all things required by it to be performed, under the license. The resolution provided that appellant's Board of Supervisors "does hereby accept and assume control of the said three bridges * * * subject to the conditions and provisions of the aforesaid license of September 3, 1910, said acceptance being effective from and after Monday, November 17th, 1913".

On November 28, 1933, the United States and appellant reached an agreement whereby the Park Street Bridge was rebuilt, the United States furnishing approximately 30% of the cost thereof. Similar agreement was reached on August 2, 1938, regarding the rebuilding of the High Street Bridge, the United States furnishing approximately 45% of the cost thereof. Approximately $1,250,000 will be required to build the Fruitvale Avenue Bridge.

Appellant's total cost of operating and maintaining the Park Street Bridge from 1913 to the time when it was rebuilt was $200,245.57. Its total cost of operating the High Street Bridge from 1913 to the time when it was rebuilt was $240,672.69. Its total cost of operating and maintaining the Fruitvale Avenue Bridge from 1913 to 1939 was $262,148.19. The sum of the three amounts is $703,066.45. The total cost of maintaining, operating or replacing the bridges since November 17, 1913, has exceeded the income and revenues provided for the fiscal year 1913-14, or any fiscal year prior thereto, and the expenditure was not assented to by two-thirds of...