Mintzer v. North American Dredging Co.

• Decision Date: 28 August 1916
• Docket Number: 184.
• Parties: MINTZER et al. v. NORTH AMERICAN DREDGING CO.
• Court: U.S. District Court — Northern District of California

242 F. 553

MINTZER et al. v. NORTH AMERICAN DREDGING CO.

No. 184.

United States District Court, N.D. California.

August 28, 1916

J. K Johnson and W. P. Johnson, both of San Francisco, Cal., for plaintiffs.

D. J Hall, of Richmond, Cal., for intervener.

Earl D White, of Oakland, Cal., for defendant.

VAN FLEET, District Judge.

This is a bill to enjoin the defendant from further proceeding to dredge out and deepen a certain waterway or channel traversing lands alleged to belong to the plaintiffs' testator, and from carrying away the earth or soil therefrom as constituting a willful and malicious trespass and waste and to recover damages for the waste and injury already done.

The answer of the defendant denies any ownership or right of any kind in the plaintiffs in the land involved, and sets up that the channel in question is 'known and designated as the south channel of the San Pablo Canal, all within the city limits of the city of Richmond, county of Contra Costa, state of California, and that said channel is, and has been for many years last past, a navigable waterway, with a public terminus, connecting the said city of Richmond with the San Pablo Bay and the Bay of San Francisco,' and that 'for many years last past vessels engaged in commerce have navigated and traversed said channel'; that all the acts done and committed by defendant, of which complaint is made, have been had and done under and in pursuance of a contract theretofore entered into between defendant and said city of Richmond, whereby 'defendant agreed to dredge a channel eighty (80) feet wide, in and through said south channel of said San Pablo Canal, to a uniform depth of eight (8) feet below low tide,' and that the work of dredging said channel was being done by defendant 'for the purpose of improving said waterway in the interest of commerce and navigation,' etc. It denies that plaintiffs have suffered any damage, or that defendant 'has committed any willful or malicious or any trespass upon any property of plaintiffs.' It then alleges, as ground of affirmative relief, that after defendant had removed approximately 22,000 cubic yards of material from said channel it was stopped by the injunction issued herein, and has since discontinued work under said contract, and that by reason of such interruption and delay in its work defendant has suffered damages on its part, for which it asks judgment against the plaintiffs.

The city of Richmond was permitted to file a bill of intervention, in which it alleges that the channel in question is a natural arm of San Pablo Bay, which is a navigable body of water within the state; 'that the depth of water in said channel varies with the rise and fall of the tide, and that at ordinary low tide said channel has a minimum depth of two (2) feet, and at ordinary high tide has a minimum depth of eight (8) feet'; and, after alleging substantially in the terms set up in the answer the navigation of said channel during recent years between other points and the city of Richmond, it is alleged that in order to improve the navigability of the channel and render it more suitable for commerce 'it became and is necessary to deepen said channel, throughout is entire length to a width of eighty (80) feet and to a depth of eight (8) feet at ordinary low tide.' It is alleged 'that the city of Richmond has a population of 20,000 or upwards, and contains within its limits a large number of extensive manufacturing plaints and industries; that it is essential for the best interests of the city of Richmond, its inhabitants, and the public generally that the that the navigability of said channel be improved and increased as aforesaid, thereby affording better transportation facilities for the city of Richmond, its inhabitants, and the public generally.' It admits the entering into the contract as set up by defendant for the deepening and widening of the channel, and alleges that it has procured for that purpose a permit from the War Department of the United States for such improvement. It denies any right or title in plaintiffs in or to the premises involved, or that any soil or other thing of value is being taken from plaintiffs' property.

In response to the bill of intervention the plaintiffs filed an answer, denying all its allegations as to the navigability or commercial value of said channel, and alleging that the intervener and the Standard Oil Company of California have entered into a contract 'whereby it was agreed that the city of Richmond should cause the dirt or soil dredged or taken from the property of plaintiffs to be deposited upon the property of the Standard Oil Company of California, and that it should pay to the city of Richmond 10.74 cents per cubic yard therefor, that being the exact price that the city of Richmond agreed to pay the defendant herein, North American Dredging Company of Nevada, for dredging said alleged channel as aforesaid, and that the aim and purpose of said agreement between the Standard Oil Company and the city of Richmond was that the Standard Oil Company should pay for said dredging, and thereby receive and obtain the property of plaintiffs without paying them therefor. ' And it is alleged that, if said channel is deepened in accordance with the contract between the intervener and the defendant, 'it will enable the Standard Oil Company of California to obtain a waterway to the San Pablo Bay over and across and upon the land and property of plaintiffs. ' There is a further allegation that the city contemplates using the dredged channel as an open sewer; but no evidence was offered on the subject, and it may be disregarded.

The evidence shows that the channel in question, which is about a mile in length, runs in its entire course through a tract of salt marsh or tide land, comprising some 500 acres more or less, having its northerly boundary on San Pablo Bay, and extending southerly for a distance of a mile, more or less, between a natural waterway known as San Pablo Canal or creek, which borders it on the east, and the potrero or highlands, constituting the San Pablo peninsula, on the west. This land was acquired by Dr. Tewksbury, the grandfather of the plaintiffs, in the early '70s by grant from those holding patents from the state under the State Tide Land Act (Stats. 1867-68, p. 716; Stats. 1869-70, p. 541); and the title has been regularly transmitted to plaintiffs' testator, in whose estate it now rests. Like all lands of its character on the margins of the sea, its bays and inlets, it is subject to tidal action, being largely submerged at flood tide and mostly exposed at its lower stages. As disclosed on the map, and by a personal inspection made by the court, it is intersected by many tidal sloughs or creeks, cut by the flux and recession of the waters of the bay in their diurnal flow, some of them of considerable magnitude, and others dwindling to mere ditches or rivulets. At the height of the tide many of these sloughs have a considerable depth of water, while at its lowest stages, in most of them, the mud bottom lies exposed, or practically so. The particular channel in controversy branches from San Pablo Canal or creek, a stream of much greater magnitude, a short distance south from where the latter debouches from the marsh land into San Pablo Bay, and thence winds its way in a general southerly direction throughout the length of the tract of land above described. It varies in width and depth, being in its lower reaches as wide as 100 feet or over, and narrowing somewhat farther south, with a depth, dependent upon the state of the tide, of from two feet or less at low tide in its shallowest parts toward the south, to approximately seven or eight feet at its flood, and deepening somewhat as it flows to its mouth and enters the San Pablo Canal.

Neither the channel nor the land underlying it was excepted from the grant by the state to its patentees of the tide lands through which it runs, nor in the deeds from the latter conveying the title to plaintiffs' ancestor, nor is the channel in any way referred to or mentioned in said conveyances; nor, so far as appears, has it ever been meandered by the state or designated among the streams or waterways declared navigable in its statutes. While referred to in the answer as the 'south channel of San Pablo Canal,' it bears no name or designation on the official map. At the time Dr. Tewksbury acquired these tide lands and for many years thereafter there was no settlement in the immediate neighborhood, the contiguous highlands being devoted to farming and grazing, for which latter purpose the marsh lands were included so far as available. It was for this purpose, apparently, that Dr. Tewksbury acquired the marsh lands. He owned a large acreage in the adjacent highlands, and the evidence shows that shortly after the acquisition of the marsh lands he constructed a dyke across them near their northern boundary to keep out the tide and render the land more available for pasturage; much of the grasses growing thereon making good food when the waters were kept out. This dyke, but for a tide gate therein, was built solidly across the channel in question, and the evidence tends to show that it was maintained for many years-- as late as 1901-- in a condition efficient to restrain the influx of the tide and...