Carver v. San Pedro, L.A. & S.L.R. Co.

• Decision Date: 25 June 1906
• Docket Number: 1,219.
• Court: U.S. District Court — Southern District of California
• Parties: CARVER et al. v. SAN PEDRO, L.A. & S.L.R. CO.

151 F. 334

CARVER et al. v. SAN PEDRO, L.A. & S.L.R. CO.

No. 1,219.

United States Circuit Court, S.D. California, Southern Division.

June 25, 1906

L. H Valentine, Joseph H. Call, Long & Baker, and Seward A Simons, for complainants.

J. A Gibson, A. S. Halsted, and T. E. Gibbon, for defendant.

WELLBORN District Judge.

The uncontradicted evidence, written and oral, adduced on this hearing, shows the following facts: That Cerritos slough is navigable; that defendant's bridge was built without authority of Congress or the Legislature of California, and obstructs the navigation of said slough; that complainants respectively, own lands situated on said slough, and are engaged in business enterprises dependent upon its navigation, and are suffering from the obstruction of such navigation serious damages, which from their nature are incapable of estimation, and are therefore irreparable. Heilbron v. Canal Co., 75 Cal. 426, 17 P. 535, 7 Am.St.Rep. 183. From these facts it necessarily results that said bridge is a public nuisance, and the first inquiry, purely one of law, is as to the sort of injury which will justify resort by a private person to a court of equity for abatement of such a nuisance.

It is firmly established by a long line of federal decisions that an obstruction to navigable water may be enjoined by a private person who is injured thereby differently from the general public, either in degree or kind. Georgetown v. Alexander Co., 12 Pet. 98, 9 L.Ed. 1012; Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 564, 14 L.Ed. 249; Union Pacific Railroad Co. v. Hall, 91 U.S. 343, 355, 23 L.Ed. 428; Baird v. Shore Line Ry. Co., 2 Fed.Cas. 427 (No. 758); Works v. Junction R.R., 30 Fed.Cas. 626 (No. 18,046); Hatch v. Wallamet Iron Bridge Co. (C.C.) 6 F. 326; Id. (C.C.) 6 F. 780. This last case was reversed by the Supreme Court, but the reversal was on jurisdictional grounds, not affecting the point now under consideration. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 2, 8 Sup.Ct. 811, 31 L.Ed. 629.

Whitehead v. Jessup (C.C.) 53 F. 707, relied on by defendant, it must be conceded, is not in line with the cases above cited, but supports defendant's contention that, in order to maintain the suit, it must appear that the defendant's bridge causes some injury to the complainants different in kind from that sustained by the general public who navigate the waters in question. In the case last named, paragraph 2 of the syllabus is as follows:

'One who seeks by suit in his own name to compel the removal of an obstruction to navigable waters must show some injury to himself, caused thereby, different from the injury sustained by the general public who navigate such waters. Hence, where complainant, a riparian owner, had free access to the navigable channel in front of his land, held, that he could not, in his own name, maintain a suit to compel the removal of a bridge over such channel, half a mile from his land, though his boats, in navigating to and from adjacent waters, were obstructed by such bridge.'

Under this view of the law, a person who owns land of inconsiderable value immediately in front of the bridge and abutting upon the slough, if at all injured, no matter how slightly, might have equitable relief against the public nuisance; whereas, another riparian owner, but a few rods above the bridge, with large wharves for the accommodation of the shipping interests of the general public, and with large manufacturing establishments dependent for their operation entirely upon the navigation of the waterway, and costing hundreds of thousands of dollars, would be wholly remediless. If the question were an open one in this court, I could not subscribe to such a doctrine. The distinction which allows a remedy in one case, but denies it in the other, is unsubstantial, and the right to the free use of navigable waters for trade and commerce is of such transcendent worth to individuals, as well as the state, that the remedies for its enforcement ought not to be abridged by technicalities or overnice refinements. The just rule, it seems to me, is that relief should be granted in all cases where there is special injury to the complainant, whether the injury complained of be different in kind from that of the public at large or only greater in degree, and this unquestionably is the doctrine of Pennsylvania v. Wheeling Bridge Co., supra, as the Supreme Court itself subsequently declared in the following unmistakable terms: 'An application for a mandamus, not here a prerogative writ, has been supposed to have some analogy to a bill in equity for the restraint of a public nuisance. Yet, even in the supposed analogous case, a bill may be sustained to enjoin the obstruction of a public highway, when the injury complained of is common to the public at large, and only greater in degree to the complainants. It was in the Wheeling Bridge Case, 13 How. 518, 14 L.Ed. 249, where the wrong complained of was a public wrong, an obstruction to all navigation of the Ohio river. ' Union Pacific R.R. Co. v. Hall, supra.

The state courts are not agreed upon this question; but it is unnecessary to review their conflicting decisions, since the enunciations of the Supreme Court of the United States are absolutely authoritative. The following cases, however, are in line with the federal cases above cited: Hickok v. Hine, 23 Ohio St. 523, 13 Am.Rep. 255; Dudley v. Kennedy, 63 Me. 465; Farmers Co-op. Mfg. Co. v. Albemarle, etc., R.R. Co. (N.C.) 23 S.E. 43, 29 L.R.A. 700, 53 Am.St.Rep. 606.

Defendant's contention that, because Cerritos slough is included within the boundaries of the Dominguez patent, both the United States and private persons are estopped from asserting the navigability of said slough, is without merit. I am of opinion that said patent did not operate to pass title to the bed of said slough. The Supreme Court of California has said:

'In case of Royal Fishery in the River Banne (Ireland), Davies, 149, it was resolved 'that there are two kinds of rivers, navigable and not navigable; that every navigable river, so high as the sea ebbs and flows in it, is a royal river, and belongs to the king, by virtue of his prerogative; but in every other river, and in the fishery of such other river, the terre-tenants on each side have an interest of common right, the reason for which is that, so high as the sea ebbs and flows, it participates of the nature of the sea, and is said to be a branch of the sea so far as it flows.' One of the results of this royal prerogative was that a grant of land extending to and bounded by or including a navigable stream within its boundaries did not operate to pass title to the bed of the stream, while a grant from the sovereign of land bordering upon a stream not navigable in the common-law sense-- that is, above tide water-- would be presumed to extend to the thread of the stream. We must not be understood as indicating that at common law the bed of a navigable stream could not be granted to a subject by a sovereign, but only as saying that it did not pass, except in those cases where the specific intent to so grant was apparent in the conveyance. ' Wright v. Seymour, 69 Cal. 124, 125, 10 P. 324, 325.

I am not unmindful that it can with some show of plausibility be claimed that from the exception in the Dominguez patent of that portion of the surveyed tract covered by the navigable waters of the inner Bay of San Pedro may be inferred an intention to grant all other lands in the tract covered by navigable waters. It is sufficient, however, in answer to this claim, to say that a patent cannot, by inference or implication, pass title in the bed or shore of a navigable stream; but this can be done only by express words manifesting a specific intent to grant such title. In Shively v. Bowlby, 152 U.S. 1, at pages 13 and 14, 14 Sup.Ct. 548, 552, 553, 38 L.Ed. 331, the court says:

'In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or corporation has acquired rights in it by express grant, or by prescription or usage. * * * The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes, or usages of the several colonies and states, or by the Constitution and laws of the United States.'

If it be conceded, however, that the legal title to the shore or tide land, or even the entire bed of said slough, passed by the Dominguez patent, still it was subject to the public right of navigation and the power of Congress under the commerce clause of the Constitution to regulate the same. Shively v. Bowlby, 152 U.S. 1, 13, 14 Sup.Ct. 548, 38 L.Ed. 331; South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782; Eldridge v. Trezevant, 160 U.S. 452, 16 Sup.Ct. 345, 40 L.Ed. 490; Gibson v. U.S., 166 U.S. 269, 17 Sup.Ct. 578, 41 L.Ed. 996; Scranton v. Wheeler, 179 U.S. 141, 21 Sup.Ct. 48, 45 L.Ed. 126; Ward v. Mulford, 32 Cal. 365, 373; West Chicago Street R.R. Co. v. Illinois ex rel. Chicago (decided by U.S. Supreme Court April 9, 1906) reported in 26 Sup.Ct. 518, 50 L.Ed. 845.

In the case of Ward v. Mulford, above cited, the court says:

'If the Mexican government had made any rightful disposition of lands which she held as sovereign, neither the United States nor the state, as succeeding sovereigns, could disregard it, any more than in the case of other lands. But by this we do not desire to be understood as holding that the Mexican government, or this state, has the same power of absolute alienation over lands held in virtue of their

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