Breed v. Cunningham

The opinion of the Court was delivered by Murray, Chief Justice. This was an action commenced in the Court below by Breed and Dennis, lessees of California and Market wharves, to restrain the defendants from filling the space between the north side of Market street wharf, and the north line of Market street, and to recover damages arising from the partial filling up of the same. [368] The plaintiffs claim an exclusive privilege to collect wharfage and dockage, &c., under a contract entered into with the sinking fund commissioners of San Francisco, and afterwards ratified hy the legislature. Under this contract the plaintiffs constructed the present wharf, leaving a space within ■ the line of Market street sufficient for the mooring of vessels. For filling up this space, and the consequent obstruction to the plaintiffs’ enjoyment and use of the wharf, this action was brought. Prior to the contract between the sinking fund commissioners and the plaintiffs, this same space had been laid out upon the official map and dedicated as a public street; the Ayentimento of San Francisco had assumed the ownership and control of the’ soil, and had sold lots upon the line of the street. So far as the city had any rights in the premises, she had by her own repeated voluntary acts parted with those rights; and any attempt upon her part to assume such rights, by depriving the public of the easement which they had acquired, or denying the purchasers of these lots the right of way, or the privilege of improving their property, except upon the payment of wharfage, or tolls, was clearly illegal. In addition to these acts of the municipal authorities of this city, the legislature on the 26th of March, 1851, relinquished all rights of the State to certain property heretofore claimed by this city, and confirmed the sales previously made. This act was made in reference to the map of San Francisco, and Market street was recognized as a public street by the language of the act. The act March 26th, operated as a grant by which property holders along the line of said street, and the public, were entitled to the free enjoyment of the same; and the right or privilege so granted could not be resumed by the State, and was not so resumed by the act of April 28th, 1851, confirming the contract between the appellants and the sinking fund commissioners. It is useless to cite authorities to maintain the proposition. So firmly has it become established, that where lots are sold as fronting on, or bounded by, a certain space designated in the conveyance as a street, the use of such space as a street, passes as appurtenant to the grant, and vests in the grantee in common with the public the right of way over such street; that such acts on the part of the grantor constitute a dedication of [369] such street, and that he cannot afterwards so sell or dispose of it as to alter or defeat such dedication. Whatever authority the city may possess to enjoin the defendants, by virtue of the power granted in her charter, to regulate wharves, &e., we do not propose to consider; but it is clear that the plaintiffs derived no such right by their lease, and it would be difficult to determine how they can enjoy the exclusive privilege of occupying said wharf consistent with the public easement in said street upon which it is situated, as I have already shown the act of April 28th was passed after the dedication of Market street, and consequently could not interfere with its previous disposition. The judgment of the Court below is affirmed, with costs. Anderson, Justice.—I concur.