North American Dredging Co. of Nevada v. Mintzer

• Decision Date: 01 October 1917
• Docket Number: 2913.
• Citation: 245 F. 297
• Parties: NORTH AMERICAN DREDGING CO. OF NEVADA et al. v. MINTZER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F. 297

NORTH AMERICAN DREDGING CO. OF NEVADA et al. v. MINTZER et al.

No. 2913.

United States Court of Appeals, Ninth Circuit.

October 1, 1917

Earl D White, of Oakland, Cal., and D. J. Hall, of Richmond, Cal for appellants.

Edward J. McCutchen and John F. Cassell, both of San Francisco Cal., for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

This is an appeal from an order in favor of plaintiffs below appellees, Lucio M. Mintzer and Mauricia T. Mintzer, as executor and executrix of the estate of William Mintzer, deceased, granting injunction restraining defendant, appellant, North American Dredging Company of Nevada, from dredging and cutting a canal across property owned by them in the city of Richmond, Cal., and awarding damages. The bill alleged that complainant's testator at the time of his death was seised of certain described lands, and that about April 15, 1915, defendant trespassed by beginning to dredge a canal 80 feet in width and 8 feet in depth for a distance of from 4,000 to 5,000 feet across the land of testator. Defendant denied seisin or possession by plaintiffs, and alleged that the land described was a navigable waterway, with a public terminus connecting the city of Richmond with San Pablo and San Francisco Bays, and that at no time had plaintiffs or their testator had title to the land covered by the waters of the channel; that on the 15th of March, 1915, the defendant entered into a contract with the city of Richmond, wherein defendant agreed to dredge a channel through the south channel of San Pablo Canal, and that such work was commenced in April, 1915, for the purpose of improving the waterway in the interests of commerce and navigation. The city of Richmond intervened, and alleged the existence of a navigable channel within the limits of the city, and that the best interests of the city required the improvement of its navigability; permission to make such improvements having been received from the War Department of the United States. Plaintiffs denied the navigability or commercial character of the channel, and alleged that the intervener and the Standard Oil Company of California have entered into a contract whereby the city of Richmond would cause the soil dredged from the property of plaintiffs to be deposited upon the property of the Standard Oil Company, the latter agreeing to pay the city of Richmond therefor, and that if the channel is deepened in accordance with the contract between the intervener and defendant it will enable the Standard Oil Company to obtain a waterway to San Pablo Bay across the land and property of plaintiffs.

The turning point in the case is whether or not the waterway involved is navigable. It was the opinion of the District Court that it was not; that it never had been in fact navigable in any true sense, and has not been considered, either by the public or by the authorities of the state of California, as capable of navigation; and, furthermore, that the works sought to be prosecuted could not be carried on without artificial aid. Before reaching this conclusion, and in order to get a better understanding of the evidence bearing upon the physical situation, the District Judge made a personal inspection of the lands and channel involved in the controversy, and with painstaking care has described the situation, substantially as follows:

The channel involved is about a mile in length, running through a tract of salt marsh or tideland, comprising about 500 acres with the northerly boundary on San Pablo Bay and extending southerly for a mile, more or less, between a natural waterway called San Pablo creek, which borders on the east, the 'Potrero' constituting the San Pablo peninsula on the west. The land was acquired by plaintiffs' grandfather by grant from those holding under the state Tideland Act. It is subject to tide action, largely submerged at flood tide, and mostly exposed at its lower stages. It is intersected by tidal sloughs cut by the flux and recession of the waters of the bay in their diurnal flow, some of them of magnitude and others dwindling to rivulets; at high tide many of these sloughs have considerable water, and at low tide the mud bottom is practically exposed. The particular channel in controversy branches from a larger stream a short distance south from where the San Pablo creek debouches from the marsh land into San Pablo Bay, and thence it winds its way throughout the length of the tract of 500 acres. The channel varies in width and depth from 100 feet or over in its lower reaches, and narrowing farther south, with a depth varying with the tide from 2 feet or less at low tide in its shallowest parts toward the south to approximately 7 or 8 feet at its flood, and deepening as it flows to its mouth enters the San Pablo Canal. When the predecessors of the plaintiff acquired these tidelands, and for years thereafter, there was no settlement in the immediate neighborhood; the lands being largely used for farming and grazing. Years ago plaintiffs' grandfather built a dike across the lands near the northern boundary to keep out the tide...