USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 75
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117 | Part 118 | Part 119 | Part 120 | Part 121 | Part 122 | Part 123 | Part 124 | Part 125 | Part 126 | Part 127 | Part 128 | Part 129 | Part 130 | Part 131 | Part 132 | Part 133 | Part 134 | Part 135 | Part 136 | Part 137 | Part 138 | Part 139 | Part 140 | Part 141 | Part 142 | Part 143 | Part 144
532
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
whose objection to the Felton ticket we have quoted above; but as it was worth a man's life to say a word in opposition to the 'compromise' at that time, we are con- fident that his voice was in accord with that of the entire community. At the time we speak of-about a year ago-every man who owned a twenty-five foot lot was ready to hug and kiss his neighbor, in view of the glorious prospects in store for Oakland. Rejoicing was observed on every hand; old animosities were forgotten, and even the sins of Carpentier were, by the action and voice of the people, absolved unconditionally, and the ‘monster whose blighting influence had retarded our prosperity' for years and years previously was reinstated in the good opinions of the community for his efforts to secure the terminus. This glorious feeling and general prosperity was attributed, at the time, to the fact that the location of the Pacific Rail- road terminus was about to be fixed in Oakland, through negotiations then pending and about to be closed satisfactorily. Every one said, secure the terminus at all haz- ards, even if to do so the entire water front, so far as the city's interests are con- cerned, has to be deeded to the company In order to induce the Legislature to empower the Council to settle the controversy, an invitation to visit this city and accept its hospitalities was tendered to that body, and on February 22, 1868, that mob came down here, and after feasting and carousing at municipal expense, went back determined to help Oakland to get the upper hand of San Francisco in securing what was regarded as the greatest prize ever offered to any city on the continent. The bills for this banquet were freely and ungrudgingly paid; and well they might be, since, as if by magic, the moment the Bill passed the Legislature, property doubled in value and men who had been for years impoverishing themselves in paying taxes on upro- ductive lands, suddenly found themselves transformed into millionaires. And this transformation of values was mainly effected by the prospect of having the railroad terminus located here.
"One of the principal agents in these negotiations was John B. Felton. Employed by the Council and instructed by the people, he bartered the city's interest in the water front to a corporation, getting in return therefor that, which has trebled in value every foot of property within our city limits. When, therefore, we hear a man objecting. to Felton because the latter was one of the main instruments in enriching him, we are obliged to remain indignantly silent. We trust that Mr. Felton will spike the guns of his enemies by addressing a meeting some evening during the present week, and give an account of his stewardship in the water-front transaction. His connection with that business is being misrepresented every day by the very men who made most out of it in the way of speculation, and it would be an act of retrib- utive justice to get them together some evening and explain to them the fortuitous circumstances which has changed their condition from comparative pauperism to ple- thoric wealth."
Consequent on the action of the Council in taking possession of the water-front lot formerly granted to the San Francisco and Oakland Railroad Company, that cor- poration brought suit in the Third District Court against the city of Oakland, when the following judgment was rendered by Judge S. B. McKee:
533
OAKLAND TOWNSHIP-CITY OF OAKLAND.
" THE SAN FRANCISCO AND OAKLAND RAILROAD COMPANY vS. " THE CITY OF OAKLAND et al.
"The central question of the controversy between the parties of this action involves the consideration and construction of an ordinance passed by the Common Council of the city of Oakland on the 20th of October, 1867, by which the plaintiff claims to have become vested with the rights of property to the land in controversy, which have been invaded and violated by the defendants. Many lesser questions revolve around this central question which have been discussed by counsel, but it is only necessary to examine and adjudicate the validity of the ordinance itself.
"By the ordinance the Common Council granted to the plaintiff, during its cor- porate existence, a block of land in the city of Oakland, three hundred and fifty feet wide, between what is described on the map of the city as Webster and Franklin Streets, and extending three hundred and fifty feet into the San Antonio Creek, for the purpose of erecting and maintaining thereon a marine railway and wharf.
" For this the plaintiff covenanted to pay the city annually for five years, one hundred dollars gold coin; and thereafter for every ten years, annually, such sum of money as should be agreed upon by three Commissioners to be appointed as pro- vided by the ordinance.
" After the passage and approval of the ordinance, the servants and workmen of the plaintiff entered upon the land and commenced the construction of the improve- ments, when they were interfered with and prevented from continuing their work by the officers of the city, who took possession of the property. The Common Council afterwards repealed the ordinance. If the rights of property vested in the plain- tiff, by the ordinance of course they could not be divested by a subsequent repeal of it.
"Counsel of plaintiff attempt to sustain the validity of the ordinance by the exercise of a power 'to construct and keep in repair wharves, docks, ferries, piers, slips,' etc., conferred upon the City Council by the fourth section of the charter of the city. But such a power can only be exercised for the city and not for the plain- tiff, nor any one else. The Council have no authority under it to make improvements of any kind or nature whatsoever, for the use and benefit of a railroad company. If the Council should consider the building of a wharf on property of the city, required by public necessity, it might in exercise of such a power, contract for the construction of it if it had in hand the necessary means. Or, if it had no money and it could substitute the use of the land and the improvement to be constructed on it, for a number of years, as a consideration to induce another to construct such an improve- ment for the city, the Council might exercise the power in that way; for every power carries with it such incidents as are necessary to make it effectual. But in such a case it must plainly appear that the improvement to be constructed was for the city; and, that when the use of the land which formed the consideration for the improvement ended, the land and improvements would revert to the city as its property. It must also appear that the title to the property remained in the city.
" No such intentions ' crop out ' of the ordinance in question, nor are they to be found in any part of it. The object was to build a marine railway and wharf, not for
534
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
the use and benefit of the city, for the necessity for such an improvement for the city is nowhere apparent. But the plaintiff, as a railroad company, needed it for its own purposes, and it has authority under the general law of its corporation to receive and take by purchase, voluntary grant, or donation such lands as might be necessary for the maintenance of its railroad, and for such uses and purposes as might be considered necessary for accomplishing the object for which it was created. The construction of this marine railway and wharf, therefore, could only have been intended for the use and benefit of the plaintiff, not of the city, and there is nothing of the elements of a contract, direct or indirect, between the plaintiff and the Common Council for the construction of this improvement for the city.
" The ordinance aims at a disposition of the land to the plaintiff for its sole use and benefit; the word 'grant' used in it is a comprehensive term which may be con- strued so as to include a conveyance of the fee. The plaintiff obtains by its terms the absolute use and enjoyment of the land and of the rents and profits of it; for, although the plaintiff is prohibited from collecting wharfage, without permission of the Council, this does not interfere with the use and profits of the land. The money agreed to be paid for this is in the shape of annual rent, and in that respect the ordi- nance has the feature of a lease; but, as a lease, it might be considered void, because it has an uncertain term. But whether the ordinance amounts to a sale or lease of the property, or is, as contended. by the plaintiff, simply an act done in the exercise of a power to build wharves, piers, slips, etc., it is void, because the act was not done, nor the sale or lease made, in the manner prescribed by the city charter. All sales or leases of property belonging to the city must be by public auction, upon such terms and conditions as may by ordinance be prescribed, and all contracts for work must be let to the lowest responsible bidder, after publication made. A municipal corporation can only exercise such powers as have been conferred upon it, and in the manner prescribed by its charter. I, therefore, think that the ordinance in question vested in the plaintiff no right of property to the land 'in controversy, and the defendants are entitled to judgment. Let judgment be entered accordingly.
"S. B. MCKEE, Judge."
Against this decision the San Francisco and Oakland Railroad Company appealed.
On February 26, 1869, an adjourned meeting of the City Council was held for the purpose of receiving a report of a special committee appointed to inquire into Dr. Merritt's title to certain water-front property in the city of Oakland. These gentle- men, through Mr. Moody, made the following report:
" Your committee, to whom was referred the duty of inquiring into the title by which Mayor Dr. Samuel Merritt holds certain property at or near the foot of Wash- ington Street, and for what purpose he holds the same, beg leave to report that in the discharge of their duties they addressed a note, of which the following is a copy, inclosing the resolution of inquiry, to his Honor, the Mayor, to Lloyd Tevis, Secre- · tary of the Water Front Company, and to Messrs. John B. Felton and E. R. Carpentier: "'OAKLAND, February 24, 1869.
"' DEAR SIR: Inclosed please find a resolution which will explain itself. To assist the committee in the discharge of their duties, will you do us the favor to
535
OAKLAND TOWNSHIP-CITY OF OAKLAND.
answer the following questions: By what title, if any, does Dr. Samuel Merritt hold the water-front property on San Antonio Creek, lying between Broadway and Clay Streets, at or near the foot of Washington Street? Did he obtain the property in trust for the city, or for his own use and benefit? Please answer in time for the committee to report upon Friday evening, February 26th, and oblige, etc.'
"To this communication the following reply was received:
"' SAN FRANCISCO, February 26, 1869.
"' MESSRS. W. G. MOODY AND F. M. CAMPBELL, COMMITTEE-Gents: The following statement is made in reply to your letter of the 24th instant: Some months ago Dr. Samuel Merritt applied to the Oakland Water Front Company for the land referred to by you. He represented that the building of the new bridge, as proposed by the railroad companies, would seriously damage his property at the old bridge by destroying his communication with the creek, and that all he desired was a fair remuneration for the actual loss sustained by him. On the 11th July last the Board passed a resolution appointing a committee to confer with Dr. Merritt on the subject. Up to this time no arrangement or understanding had been made with Dr. Merritt in reference to this land at the time of the settlement of the water-front compromise, nor has there been any since, except what might be inferred from expressions of members of the Water Front Company favorable to his request.
"' Yours Respectfully, LLOYD TEVIS, "' Secretary of Water Front Company.
"' JOHN B. FELTON.'
"Your Committee have also received the following communication from the Mayor :-
"OAKLAND, February 26, 1869.
"'MESSRS. MOODY, CAMPBELL, AND BARNES-Gents: I am in receipt of your favor of the 24th instant, inclosing a copy of a resolution passed by the Council relating to the property which I have recently improved near the foot of Washington and Clay Streets in this city. The questions which you wish me to answer are as follows, viz .: By what title, if any, do you hold said property? If you have a title, from whom did you obtain it, and what was the consideration paid for the same? Did you obtain the property in trust for the city or for your own use and benefit? In reply, permit me to say: No conveyance has ever been made to me of the property in question. Some weeks, or perhaps months, after the settlement of the water- front controversy, I made application to the Water Front Company for the property referred to, for the purpose of constructing a wharf, it being understood that the Western Pacific Railroad Company proposed to enter this city by building a bridge across the arm of the San Antonio Creek, without a draw, which would virtually cut off communication with my present place of business near the Oakland bridge. That application was referred to the Executive Committee with power to act. Since then, I am not aware that any action has been taken in the premises. I do not hold the property in trust for the city. I remain, etc., SAMUEL MERRITT.'
" In these communications we noticed: First-That no valid title to this prop- erty has passed to Dr. Samuel Merritt. Second-That the doctor applied to the
536
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
Oakland Water Front Company for this property as compensation for damages sus- tained upon certain other desirable property, by certain contemplated improvements. Third-That no definite action has been taken upon this claim, and, Fourth-That neither at the time of the water-front settlement, nor at any time since, was there any agreement or understanding other than expressions of members of the company to his request.
"In presenting this matter so that it may be thoroughly understood, your Com- mittee feel compelled to make the following points: First-That the Mayor, Doctor Samuel Merritt, is in full possession of the property at or near the foot of Washington Street, claiming the ownership thereof, using it for his own profit, and has been for nearly one year. Second-That the property near the bridge, referred to, has suffered no damage by any contemplated improvements; and when these improvements are made it may be found that this property suffers no damage; or, it is possible that the plan of improvements may be so changed as that no damage can result; or, these improvements may be deferred at that point, using for a considerable time the present means for crossing the creek. In either event the doctor would be the apparent owner of both properties, with no damage to the upper property. Third-That Doctor Samuel Merritt has no title to a large, if any, part of the property near the bridge, as he himself has informed a member of your Committee. That being upon the prop- erty as a mere trespasser upon the city or its assigns, your Committee cannot see what legal or equitable claim he can possibly have for damages in this case. Fourth -That Doctor Samuel Merritt obtained possession in some manner, through the water-front settlement, at or near the foot of Washington Street, and that no consid- eration has passed for the same; and that at the time of the water-front settlement, and ever since, he was engaged in the water-front negotiations as agent for the city, and has ever since been a member of the directorship of the Oakland Water Front Company as representative of the city's interests.
"Your Committee therefore come to the conclusion that, inasmuch as Doctor Samuel Merritt obtained the property in some means through the water-front settle- ment, without the payment of any valuable or legal consideration, and during the time he was representing the city of Oakland, and in all those transactions, your Committee are compelled to believe that he, the Mayor, holds this property for the city, whatever may be the title under which he claims, and that the city should take the necessary steps to protect her interests. With this view, your Committee have not felt called upon to discuss the comparative value of the property near the bridge with that at or near the foot of Washington Street. Your Committee would, therefore, recommend that the City Attorney be directed to take the necessary steps to protect the city's interests in the water-front property, at or near the foot of Washington Street now held by Samuel Merritt, Mayor. With this view your Committee recom- mend the passage of the accompanying resolution.
"I. G. MOODY, " D. G. BARNES."
The resolution submitted was briefly to the effect that the City Attorney take the proper steps to recover the property at the foot of Washington Street.
The foregoing being the majority report, we now give that of the minority: Mr. Campbell stated that he had not signed the report as the committee was instructed to
-
Gray -
adam Fatti.
537
OAKLAND TOWNSHIP- CITY OF OAKLAND.
ascertain and report facts, not to express opinions and make pleas. He had not seen the report until early in the evening. As a member of the Committee he would simply submit the documents from Dr. Merritt and Messrs. Felton and Tevis. It was for the Council to devise plans and to act. Mr. Moody then made a speech in which he asserted his bravery in daring to undertake anything for the public good; while Mr. Campbell considered that the letters referred to had not been submitted to him in time for him to consider them. The resolution submitted by Mr. Moody did not even meet with a seconder.
It may be mentioned here that a newspaper war had been waged between Messrs Moody and Merritt about this time, in which the former was very severely handled by the doctor.
In this year the Water Front Company entered suit against the city to quiet title, which, May Ioth was duly reported on by the City Attorney. In regard to the matter, August 9th, E. R. Carpentier forwarded the following communication to his Honor Mayor Felton :-
" I have this day entered a dismissal of the suit brought in the Twelfth District Court by the Oakland Water Front Company against the City of Oakland. As you, will remember, that suit was instituted soon after the Water Front Compromise in . pursuance of an understanding, then had, that a judgment should be obtained without opposition, quieting the title of the Water Front Company to its lands and franchises in accordance with the terms of the compromise. ,
" The then Mayor, on whom process was first served, was a Trustee of the Water Front Company; and he was succeeded in office by yourself, also a Trustee of the company. Under such circumstances it was not thought proper to take a judgment by default against the city, and no judgment was entered.
" Recently the City Attorney has entered an appearance. But as the under- . standing in pursuance of which the suit was instituted seems to have been forgotten by some, and the object of the suit misapprehended by others, and there not being at this time any real dispute by the city of the company's title, nor any doubt enter- tained of its validity, the company has thought it proper that the case be dismissed."
It is to be hoped that we may not be brought under the ban of prolixity. Our aim has been to place before our readers the true story of the water-front controversy itself. To follow it from its germ to its full fruition as the so-called property of the Central Pacific Railroad Company, which is, so far as this affair is concerned, an aggloin- eration of the railroads and companies mentioned in these remarks, and evidently the inspirer of all action since taken. In his message of February 28, 1876, Mayor Webber sounds the pæan of the "Central Pacific" in these words: "Nearly the whole of the frontage on the line of the Oakland water front is owned by private parties, Council having at an early day transferred this property and a subsequent Council having ratified the transfer. This latter act was the inducement that influenced the Western Pacific Railroad Company to locate their terminus in this city. Extended improve- ments have been made by that corporation and its successor, the Central Pacific Railroad Company; and the importance and prosperity of the city has been immeas- urably advanced. The right of the city to extend its streets to the line of ship channel has never been denied, and when necessity for such action arises I doubt not but that 35
538
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
right will be asserted. There is no conflict of interest between the individuals and corporations owning this property and the city. Whatever improvements they may make will advance the public interests; they cannot turn their possessions to any valuable use without benefiting the whole city as much, if not more, than they benefit themselves. The public have a deep interest in the policy of the large corporations that have such an influence in promoting the common prosperity, and the time has fully arrived when a request should be made to the Water Front Company for the property which forms the extension of one or more streets, that wharves may be con- structed there by the city. Operations upon the bar have so far advanced that we must soon have a commerce that will demand such facilities as suggested. We have ample reasons for the great faith we entertain as to Oakland's future. The wonderful growth of the last few years is but the forerunner of what is to come. We hold the position of center of the railroad system of the Pacific Coast. All railroads entering the State must seek San Francisco, and the easiest way to reach the metropolis is by Oakland. We must afford what privileges we can for the encouragement of such enterprises and render our city easy of approach by land and water. Railroads, commerce, and manufactures are to be the basis of our prosperity, and the policy of Oakland should be enlightened and liberal. Though there are few direct acts within the province of the Council which would have an important bearing, the general tenor of all your acts exerts a powerful influence. When it is seen that you are friendly to all enterprises that can increase Oakland's greatness, and that you duly appreciate their importance, the city becomes an inviting field for men of capital and energy Your policy has been, thus far, most praiseworthy, and it is bringing its merited reward."
The reward to which his Honor alludes to must be, to use his own words given above, "the time has fully arrived when a request should be made to the Water Front Company," and through them the Central Pacific Railroad Company, "for the property -which forms the extension of one or more streets, that wharves may be constructed there by the city "-and this in the face of a ruling of the Supreme Court, already produced in extenso.
In the summer of 1877 a clamor was raised in favor of taking legal steps to open up the case from the beginning, the particular occasion for which was the dedication by the Oakland Water Front Company to the city of "the channel of San Antonio Creek from ship channel, in the bay of San Francisco, to the town of San Antonio, said channel or navigable water-course to be included between parallel lines, and to have an uniform width of four hundred feet," a width that was deemed insufficient for the future commercial wants of Oakland. On November 12, 1877, Henry Vrooman, the then City Attorney, addressed an able and lucid opinion on the subject to the Council. In this document he states ere concluding: "We have herein before shown: First -- Not only that the Estuary of San Antonio, or 'Oakland Harbor,' is navigable in fact and in law, but as well that it is, in fact, navigated by vessels from both foreign and domestic ports. Second-That Congress has the exclusive right to regulate commerce with foreign nations and among the several States; that this includes the right to prevent the obstruction of any of the navigable waters of the United States, of which the waters of 'Oakland Harbor' are certainly a part, and that Congress has
539
OAKLAND TOWNSHIP-CITY OF OAKLAND.
exercised its power, in regard to the Estuary of San Antonio, by appropriating for, and spending money in, the improvement thereof, with the intention and avowed purpose of increasing the capacity of said harbor. Third-That the National, State, County, and City Governments have spent large sums of money amounting in the aggregate to hundreds of thousands of dollars, in improving the very harbor over which this Oakland Water Front Company assumes to exercise the rights of owner- ship, which it pretends to own in fee-simple, and through which it now assumes to dedicate a limited channel four hundred feet wide. Fourth-That if the channel is limited to a width of four hundred feet, as by this company proposed, the capacity of the harbor will be greatly lessened, to the irremediable detriment, inconvenience, and interruption of commerce and navigation, and a consequent injury to the city of Oakland.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.