History of Alameda County, California : including its geology, topography, soil, and productions, Part 76

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206

USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 76

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" Wherefore, my conclusions are, and I so advise you :-

"a. That . the Estuary of San Antonio, or "Oakland Harbor," and the whole thereof, between the lines of low tide, is a public highway for navigation, and that the Oakland Water Front Company has no right to use, build wharves within, or bridges across, or to exclusively occupy or appropriate to its own use any portion of said estuary or harbor (waiving in this report any question touching the title to the shore of the estuary).

"b. That the action of said company in assuming to dedicate a limited channel or water-way through the harbor, confers no additional rights upon the public, because the public have the prior and paramount right to the whole harbor.

"c. That it is not necessary or advisable for your honorable body to accept said dedication, or take any action in the matter; and

"d. That if said company does not immediately relinquish its pretended claims to said estuary or harbor, and to the whole thereof, the best interests of the city demand the commencement and vigorous prosecution of such proceedings as will establish the rights of the public to said harbor, and for this: That the further improvement of the estuary by the United States Government will be prevented, unless this pretended claim can be set aside."

And now comes the last act of what may be termed the Water Front Tragedy. On November 10, 1879, the Central Pacific Railroad Company filed a complaint against the city of Oakland, in the Third District Court, in an action to quiet the title to the water front. Besides this the complaint, which was sworn to by Charles Crocker, seemed to claim an exclusive right of way into the city of Oakland, over all other railroads. Suit having been brought it was necessary to take steps towards making a defense; therefore, at a meeting of the Council held December 1, 1879, a resolution was presented authorizing the Committee on Ordinances and Judiciary to "employ counsel to assist the City Attorney in defending the suits now commenced against the city in which the title to the water front of the city is involved." On motion to adopt, Mr. Hewes presented a communication from Judge A. Campbell Senr., and Chief Justice A. L. Rhodes, and called for its reading, which was done. Mr. Hewes then addressed the Council at considerable length, approving the sugges- tions made in the communications and opposing the adoption of the resolution. Mr. Millan offered as a substitute a resolution directing the Committee on Ordinances

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

and Judiciary to inquire into and report to the Council the probable cost of defending the water-front suits, and addressed the Council opposing the original reso- lutions and advocating the adoption of the substitute. The substitute was lost by : Ayes - Messrs. Millan and Hewes, 2; Noes- Messrs. Cole, Will, Babcock, and President White, 4. Mr. Hewes offered as an amendment that the Committee on Ordi- nance and Judiciary be authorized and empowered to employ Messrs. Campbell and Rhodes to defend all the suits brought against the city by the Central Pacific Railroad Company, C. P. Huntington, and the Water Front Company. Mr. Hewes again ad -* dressed the Council, earnestly advocating the ability of the above-named gentlemen. The amendment was lost, Messrs. Millan and Hewes voting for, and Messrs. Cole, Wall, Bab- cock, and White against it. Mr. Millan then raised a point of order that the committee could not be empowered or delegated, unless by unanimous voteof the Council and before a ruling was had from the Chair. Mr. Hewes offered an amendment, directing the com- mittee to report to the Council the namesof the attorneys to be employed, and the amount to be paid. The amendment was ruled out of order, as the matter had been already disposed of. Mr. Millan then moved to lay the original resolution on the table, which was lost: Messrs. Millan and Hewes voting aye; and Messrs. Cole, Wall, Babcock, and White, no. An amendment was offered to add the words: "the action of said com- mittee to be subject to ratification or rejection by this Council," which was adopted by the following vote: Ayes-Messrs. Millan, Cole, Hewes, Babcock, and White; No- Mr. Wall. The resolution was then adopted as amended, there voting for it Messrs. Millan, Cole, Wall, Babcock, and White, and against it, Mr. Hewes. This gentleman next offered a resolution expressing the sense of the Council that "it" (presumably the Council) was antagonistic to the interests of the Central Pacific Railroad. After some discussion the resolution was laid on the table by a vote of five to one.

On December 4th a motion was made having as its purpose the employinent of Albert A. Cohen as counsel to defend the water-front suits. It being read and motion made to adopt, Mr. Hewes addressed the Council, advocating the propriety of employ- ing additional counsel and expressing a fear that by employing one at a time it would open the door for the approach of designing men. President White then called Mr. Babcock to the Chair and addressed the Council, acknowledging the weight of respon- sibility he felt in the premises, and declared his intention to stand by the interests of the city. Mr. Millan next addressed the Council, approving the action of the com- mittee and favored the adoption of the resolution. Mr. Hewes, in explanation, stated that he would vote for a resolution employing Mr. Cohen, with the understanding that it was the intention of the committee to employ other counsel, and would favor the employment of Mr. Vrooman, Judge Rhodes, or others who might be named; he could confide in the good judgment of the committee. The resolution was then adopted. On the 17th December, the attorneys in the water-front suits were directed to commence action against Samuel Merritt and others, to recover lands now in their possession on the water front; while on the 22d of that month Col. J. P. Hoge was employed as counsel for the city.

The last entry on this subject which we will place before the reader is that on January 12, 1882, there was passed "An Ordinance to prevent further litigation concerning the Oakland Water Front"-a consummation devoutly to be wished; but

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

the citizens of Oakland should never forget that Judge Baldwin has said: "The grant of the exclusive franchise by the Trustees is absolutely void." "The power to lay out and regulate wharves being given to the Council, cannot be exercised by Car- pentier." "We think that the general grant of this exclusive privilege is wholly void as exceeding the powers of the corporation." Judge Hoffman has placed on record the opinion that "the legality of the grant of an exclusive franchise cannot for a moment be supported." The Supreme Court of California stated: "We think then that this general grant of this exclusive privilege is wholly void." The late Governor Haight gave it as his opinion that "The claim advanced by the Water Front Com- pany is perfectly baseless." And in 46 Cal., 18, the reader will find these words: "Nothing short of a very explicit provision in the law will justify the Court in hold- ing that the Legislature intended to permit the shore, between high and low water mark, to be converted into private ownership."

Closely allied to the water-front question is the subject of communication with San Francisco. It is now our purpose to follow the topic to the best of our ability.

We doubt not that if the records of some of the Mexican ports could be referred to we would find that the San Antonio Creek is mentioned therein. With the splendid adjunct of the bay of San Francisco it is unquestioned that droghers found their way to the embarcadero of San Antonio, there to ship hides and tallow from the ranchos of the Peraltas. Upon the arrival of the earlier pioneers and their establishment in the San Antonio redwoods, its advantages as a navigable stream were still further tried, and with the advent of the gold-seekers its capabilities were still further put to the test. From the earliest times it has been practically an artery of navigation, and as such was the proper property of the "Lord of the Soil," and could not be handed over to the tender mercies of private individuals.

We have seen that communication with San Francisco was at a very early day kept up by means of whale-boats, and one of these named the Pirourette plied regu- larly as a ferry-boat between the embarcadero at San Antonio and San Francisco. The first official intelligence, however, of there being an actual ferry is to be found in the records of Contra Costa County, where, on August 4, 1851, the Court of Sessions granted a license to H. W. Carpentier and A. Moon to run a ferry "from Contra Costa, in the township of San Antonio, to the city of San Francisco," and fixing the tariff as follows :-

For one person $1 00

" one horse. 3 00

" one wagon. 3 00

" one two-horse wagon. 5 00

" meat cattle, per head 3 00

" each hundred weight. 0 50

" each sheep. I 00

each hog. 1 00

And in that year regular communication was established. In 1852 the San Antonio Creek was declared to be a navigable stream by Act of the Legislature.

In 1850 the Kangaroo was put on the route, but made only two trips in the week, her point of departure being San Antonio (now East Oakland). A small steamer, name not remembered, ran from Oakland in 1851, while, in 1852, the Boston, and the

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

Caleb Cope, Thomas Gray, Master, commenced to ply. The first-named was, how- ever, shortly after this destroyed by fire. Towards the end of the year the Kate Hayes, the Red Jacket, and other boats were put on the route, until finally the Contra Costa Steam Navigation Company was established, with two steamers, making regular daily trips, and charging one dollar for each passage.

On January 15, 1853, the now famous Board of Trustees passed an ordinance granting to the Contra Costa Steam Navigation Company ferry privileges between Oakland and San Francisco, which, however, was repealed on the Ist of March follow- ing. An attempt was made though to have a bill quietly passed through the Legis- lature granting the exclusive privilege to G. W. Ryckman to establish and run a ferry between Oakland and San Francisco, an action which brought forth the following res- olutions from the Council at a meeting held April 18, 1854 :-

WHEREAS, We have learned that a bill has been introduced into the Senate of this State, proposing to grant a monopoly of the ferry privilege between the cities of Oakland and San Francisco to Garret W. Ryckman for fifteen years, at rates of ferriage exceeding those now charged upon the ferries already established, and to raise a revenue therefrom to the State, therefore be it

Resolved, By the City Council of the city of Oakland, that we view such a proposition with jealously and regret, as an unwarrantable attempt on the part of foreign speculators to cripple the commerce and resources, and to retard the prosperity of this city.

Resolved, That we regard all such monopolies as injurious, not only to the city of Oakland, but also to other towns in the vicinity. The Legislature has already declared San Antonio Creek to be a navigable stream. There are several towns situated upon it and it is the only outlet for the increasing trade of one of the most pop- ulous and fertile valleys of the State. Any individual or individuals, who, by Legislative enactment, may hold a monopoly of that trade, will thereby injure and retard the growth and enterprise of our city and surrounding country. We deem a fair and honorable competition in all ferry enterprises between this city and San. Francisco as a matter of constitutional right, and we deprecate any attempt to curb the prosperity of our people by the granting of any monopolies in relation to the same.

Resolved, That we protest against any attempt to raise a public revenue by a special tax levied upon the citizens of Oakland as unjust, undemocratic, and oppressive.

Resolved, That our Senator and member of Assembly be requested to oppose the passage of said bill.

Resolved, That his Honor, the Mayor, be requested to forward copies of the foregoing preamble and reso- lutions to our Senator and Assemblyman and to the branches of the Legislature.

In his message of April 29, 1854, Horace W. Carpentier, then occupying the civic chair, reverts to the subject of ferries in these words: "The subject of public ferries is an important one and worthy your consideration. Upon the proper regula- tion and the facilities for travel which they afford, Oakland is largely dependent, and I recommend that vigorous measures be taken to insure the speedy removal of the bar at the mouth of the San Antonio, so as to render communication with San Fran- cisco easy and certain at all hours and stages of the tide. Your attention has already been directed to a bill now pending before the Legislature, granting to an individual a monopoly of ferry privileges for fifteen years at greatly increased rates of ferriage, and to raise therefrom a revenue to the State. A proposition more manifestly unjust to the city of Oakland, or more devoid of all guarantees for the public security and con- venience could scarcely have been devised, nor one which will meet the more earnest disapprobation of every man living in Oakland or its environs, or in the least inter- ested in its prosperity. The resolutions of remonstrance heretofore passed by the City Council, I have caused to be presented to the Senate, and I feel assured that no fears need be entertained of its passage." In the foregoing we can see the jealousy that

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

was to prevent at all hazards the establishment of any line of communication in which the Carpentier faction had no interest. To them the navigable waters of the creek and bay were a part and parcel of the water-front concession-so-called-therefore the Mayor might well encourage the Council with the words, "that no fears need be entertained " of the passage of the bill through the Legislature. It is curious to watch also that what was a monopoly in one case was not so in the other -- exclusive posses- sion of ferry line was not akin to exclusive possession of a city's entire water front! A year later, in 1855, the Council passed another resolution earnestly remonstrating against the passage of any law by the Legislature granting to any person, persons, or body a monopoly of ferry privileges between Oakland and San Francisco; while, in accordance with the suggestion of the Mayor, a resolution was passed, January 10, 1855, that proposals for the removal of the bar at the mouth of San Antonio Creek, or dredging the same, so as to admit of navigation at low stages of the tide be received, and that the same be handed in to the Clerk of the Council on or before February I, 1855.

We have shown before that Horace W. and E. R. Carpentier had been granted exclusive ferry rights in March, 1855, and that considerable dissatisfaction was being felt at the consequence of this concession, but still they held their own against all comers.

Mayor S. H. Robinson, on April 2, 1856, sent a message to the Council wherein he dwelt at length on this and the subject of the Oakland Bar. He said, "I would call the attention of the Council to the bar at the mouth of the San Antonio Creek, an obstruction to the navigation of the same, which is estimated can be moved for about five thousand dollars. The dredging of this bar, owing to exaggerated estimates of its cost, has heretofore been looked upon as an enterprise, the expense of which was far beyond the reach of the limited means of our city. Such, however, is not the case. There is not a property-holder or a business-man within its corporate limits that would not cheerfully pay an additional percentage as taxes towards such an object, knowing that the value of property and the amount of business would be increased thereby. The citizens of Clinton and San Antonio profess a willingness to contribute to this object, but they cannot be expected to do anything in the matter until Oakland takes the lead. I particularly urge you to consider this matter and would recommend the passage of an ordinance appropriating the sum of two thousand dollars to be paid, provided the balance is made up by cash subscriptions from other sources. Every part of Alameda County, and every citizen living within its limits is directly interested in the matter and would, I have no doubt, if the subject was prop- erly presented, contribute liberally towards the removal of its obstructions, without which a cheap, speedy, and certain access to the San Francisco market cannot well be found.

" And in this connection I desire to call your attention to the subject of the ferry, as one of vital importance to the prosperity of the city. That the present ferry between this city and San Francisco is not what it ought to be and that it is conducted in almost total disregard of the public wants and interests, is a fact notorious to all. What steps, if any, ought to be taken by you with a view to its improvement, I am not prepared at present definitely to recommend, but I commend to you the whole sub-

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

ject matter as one eminently worthy of your careful consideration. Public improve- ments, either in dredging the bar, in placing the ferry upon a proper footing, or in constructing wharves, thereby increasing the means of access to our city, are public benefits and should be encouraged by all practical means, and in cases where private property is taken for public use, just and fair compensation should be made therefor." The outcry against the management of the ferry is continued by Mayor Williams, in his message of March 10, 1857. He there remarks: "The want of suitable and proper accommodations for passage between this city and San Francisco has produced great discomfort to passengers and worked a serious injury to the prosperity of this city. The high charges for freight and passage; the want of comfortable accommodations; the uncertainty of time for trip; the length of time to effect a crossing of eight miles -generally one hour-the daily apprehension of remaining grounded on the bar for hours, have deterred hundreds from settling here, who, doing business in San Fran- cisco, would otherwise, with their families, have been domiciliated with us. The rates for passage charged, for instance, one hundred and eighty dollars a year for commuters, or, three hundred and sixty-five dollars per annum for non-commuters, and for indi- viduals for daily passage, and same rates of freight as charged two years ago, would seem to afford patronage sufficient to justify more convenient and enlarged accommo- dations, especially for females and children, to whom the want of suitable and proper arrangements, especially in inclement weather, is a serious inconvenience.

"San Francisco Bay is an arm of the sea, being a maritime highway, and San Antonio Creek declared by Legislature a navigable stream, there is not now, and cannot be, any legal ferry monopoly. The regulations of the wharf and dockage privileges are entirely under your legal control, independent of the question of the ownership of the water front; and it is believed that a competition of passenger boats would produce a great reduction of fare; increased speed on trips; more promptness in the time of starting; greater comfort in the passenger-seats on board; less annoyance of wharfage at each end of the trip, and still leave, for two rival lines, a far larger profit per cent. on the capital invested than any other business or investment in the State. It is believed that the wharfage and dockage receipts realized by individuals which justly belong to the city are far more than adequate to pay the whole expense of the City Government, including the public schools without any other source of revenue. I recommend your encouragement of any feasible plan for competition in passenger boats, and, also in connection with this subject, a careful revisal and re-enactment with amendments of Ordinance Number Twenty-two, 'to regulate the tolls, wharfage, and dockage on wharves, piers, and slips'-approved May 16, 1855, and the subse- quent enforcement of a strict compliance with its provisions and an examination of the rights of the city to the wharfage and dockage collected at the wharves."

It needs no words of ours to impress the reader with the annoyance experienced and the baneful influences exercised by the Carpentier ferry, under the management of Minturn, to whom the honor of giving the name to the line is awarded. The Mayor in the above statement has most capably told the story, while, at the same time, in relation to the bar he says: "The dredging of the bar at the mouth of the San Antonio Creek is also a work of such general utility to the counties bordering on each side of the bay, and the whole country at large, and so unlikely of accomplish-

Capita Ludwig Sicher

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

ment under any present arrangement, that it would seem to present just claims to the consideration of the Legislature, and I therefore submit to you the propriety of an application for aid from the State to dredge and plank a channel of sufficient depth and width to obviate any further danger or obstruction from that source in all time to come."

The discontent with the Minturn line continued and soon manifested itself by the establishment of the Oakland and San Antonio Steam Navigation Company. This association was duly launched towards the end of 1857, and with the feeling then existing towards the opposition company, it was not long before all of the stock was taken up, and its originator, the lamented Hon. James B. Larue, installed as its Pres- ident. They at once purchased the steamer Confidence, and from her built the San Antonio, which commenced to ply in April, 1858, the rate of fare being reduced to twenty-five cents. In the fall of that year the Oakland was constructed, and with her a very lively competition was inaugurated against the Contra Costa, both of which took the place of the Clinton and the San Antonio. But the newly formed Oakland and San Antonio Steam Navigation Company was not to be allowed to ply its boats unmolested. The suit of Minturn versus Larue et al. was instituted, in which the plaintiff prayed for an injunction on the ferry of which the latter was President; the case was taken before Judge Hoffman of the United States Circuit Court, and in the July term of the year 1858, that learned exponent of the law ren dered the follow- ing decision, which declared that the ordinance granting an exclusive franchise was unconstitutional and illegal. It may be remembered that that also was the expressed opinion of Mayor Carpentier, when it was proposed to grant ferry privileges to Ryckman, in 1854 :-

"MINTURN VS. Circuit Court U. S., July Term, 1858.

"LARUE et al.

"The Bill in this case is filed for an injunction to restrain the defendants from interfering with the privilege of franchise of the complainant, in a ferry from the town of Oakland to this city, of which he claims to be the exclusive owner for a term of years.

"This franchise is alleged to have been conferred on the complainant by an ordi- nance and contract pursuant thereto, made by the Trustees of Oakland in the year 185 -. The authority of the Trustees to make the ordinance and contract is derived from the Act of the Legislature, passed May 4, 1852. .

"Under the supposed authority of this Act, a contract was made by the Trustees, granting to the assignor of the complainant the privilege, claimed to be exclusive, of keeping and running all ferries between the town of Oakland and the city of San Francisco and elsewhere. It is not denied that the defendants are running a ferry- boat between this city and the town of San Antonio, touching at Oakland; nor that the profits and business of the complainants are seriously affected thereby. It is urged that the Court should not, at this stage of the cause, determine its whole merits, but that the injunction should be granted if the complainant has made out a prima facie case.

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

"But it is well settled that injunctions will not be granted to secure the enjoy- ment of a statutory privilege, unless the right be clear. (3 Cowen, 755; I Johns, Ph. R., 64.)

"In cases where an injunction is prayed to restrain an act which, if committed, will work irreparable mischief, it will be granted 'ex necessitate,' even in doubtful cases, as the only means of keeping the parties 'in statu quo,' and preventing the parties final decree from being abortive. Such are the cases of the threatened destruction of heirlooms, or works of art, or objects having a 'pietum affectionis,' like family portraits, etc .; or the publication of private letters, or the erecting of nuisances calculated to work irreparable mischief, etc. In all such cases it is clear that the Court, by refusing the injunction, permits the act to be done, its subsequent decree, granting the injunction, would be but a 'brutum fulman.'

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 76

Author: Munro-Fraser, J. P Publication date: 1883 Publisher: Oakland, Calif. : M.W. Wood Number of Pages: 1206

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206