USA > California > Alameda County > Past and present of Alameda County, California, Volume I > Part 8
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Oakland, June 14, 1855.
E. GIBBONS, L. JOHNSON, Committee.
Thus was war declared against monopolies and the Carpentiers' water front claim. To support their action in repealing the ordinance concerning wharves the committee on streets and buildings on August 8, 1855, was authorized to advertise for proposals to build a wharf at the foot of Bay street. The jetty was to be not less than 850 yards long, with a T at the end 100 feet in length and fifty feet broad. This wharf was never completed. The passage of the ferry ordinance was followed by the establishment of a ferry by James B. Larue, of Brooklyn, which act led to the famous suit of Minturn 'versus Larue.
The following affidavit of A. Marier was taken in evidence on May 28, 1858: "Amedee Marier, being duly sworn, deposes and says, that he is a resident of the city of Oakland, in the county of Alameda, and has resided in said city, formerly town of Oakland, since April, 1851 ; that at the first election of trustees for said town, held on the 10th day of May, 1852, he was elected a member of the board of trustees, and at the third meeting of said trustees he was chosen president of the board, that he was present at the meeting of the board at which was passed the 'Ordinance for the Disposal of the Water Front of of the Town of Oakland, and to Provide for the Construction of Wharves ;' that said ordinance was introduced on the 17th of May, 1852, and was finally passed on the 18th of May; that the ordinance as presented was in the handwriting of Horace W. Carpentier ; that on the 17th of May, 1852, before the meeting of the board, said Carpentier exhibited the proposed ordinance to
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the deponent, and wished deponent to vote for it; that deponent refused to do so, whereupon said Carpentier stated to deponent that the object of having the ordinance passed was to secure the water front to the town of Oakland, and to enable the settlers to compromise with the claimants to the land on which the town of Oakland was situated; that there was some talk of a called session of the Legislature, and if there was a called session, the Act of Incorporation would be repealed; and upon this subject he made to deponent various repre- sentations to induce him to support said ordinance, all which tended to show that the ordinance would benefit and could not injure the people of the town; that deponent did not then read the ordinance, but said Carpentier stated its contents to be that it was a grant to himself of the water front, and the exclusive privilege of constructing wharves at Oakland; but he said that he did not care to have the grant to himself; that he would rather that some other person should take it than himself ; that he would hold it in trust for the town, and reconvey it to the town whenever requested; that deponent, relying upon these representations and promises, consented to support the ordinance, and at the meeting of the board did vote for it; that before its final passage there were some amendments made to it by striking out the word 'forever,' and inserting the words 'for the period of thirty-seven years,' which alterations, as deponent then supposed and still believes, applied to the grant of the water front as well as to the privilege of constructing wharves; that deponent afterwards signed the ordinance, now on file, under the same impression, believing that it was a true copy of the ordinance and amend- ments as passed, and did not know until some time afterwards that it was incor- rect in not limiting the grant of the water front to the period of thirty-seven years. "And deponent says that some time afterwards, as president of the board of trustees, he signed the grant or contract, dated May 31, 1852, made in pursuance of said ordinance; that said contract had been previously drawn up by said Carpentier, and was laid with other papers on the table in the room where the board met, where it remained for some days, but deponent was reluctant to sign it, and was determined not to do so until said Carpentier should give bonds ac- cording to his promise, to reconvey the property whenever requested; that at length the said contract was presented to deponent by said Carpentier in person, on board the ferry-steamer Erastus Corning, at the wharf in the city of San Francisco, and deponent was requested by said Carpentier then to sign it; that said Carpentier represented that he wanted it immediately for some important purposes, deponent thinks to submit it to the land commissioners, and that it was very important that it should be executed at once; that deponent asked said Carpentier where was the bond that he was to give to reconvey, to which said Carpentier replied that he had not time to give it then, but would give it as soon as he came over to Oakland, and thereupon, relying upon the representa- tions and promises of said Carpentier, deponent signed said contract.
"And deponent says, that at that time he knew very little of the nature and effects of deeds and grants, or of the forms and modes of doing business in municipal bodies, and had unlimited confidence in said Carpentier, who used to act as clerk and draw up papers for the board of trustees and its members, and advise and counsel them in all matters connected with municipal matters, no member of the board being able, unassisted, to draw up an ordinance.
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"And deponent says that prior to the passage of the act of the Legislature incorporating the town of Oakland, the name of the place was Contra Costa, and it had never been called Oakland so far as deponent knew; that no proposi- tion had ever been made amongst the residents of the place to change its name or to have it incorporated, nor had there ever been any discussion upon these matters, nor any wish expressed for the incorporation of the town; that at the time of the passage of the act there were only about seventy-five persons residing at the place; that when it became known amongst them, through the newspapers, that a town called Oakland, in Contra Costa county, had been incorporated, the people did not know that it was the town where they lived, and it was a subject of dis- cussion amongst them where the town of Oakland was."
About the time Mr. Carpentier purchased the water front, the Peraltas, who owned the ranch San Antonio, sold to John Clar, Colonel Hays, John Caperton and others, all the Encinal of San Antonio for $10,000, which embraced nearly the whole city of Oakland except the water front. This sale covered the salt marsh in front of the city as well as the upland.
In regard to the water front Mayor Williams, on March 4, 1857, remarked : "The question of the city's title to its water front is of such paramount interest that I propose to make it the subject of a special communication to your honor- able body at an early day. The great extent of the water front, bounding the city on three sides and part of the fourth for a distance of eight or ten miles, and its future incalculable value, entitle it to your special and prompt attention. There have been put forth some claims of individuals to this large patrimony 'which we believe to be without foundation, and there is also a question as to its owner- ship by the proprietors of the Mexican grant of the adjacent shore. To obviate any pretense of the individual claims against the city I recommend the immediate commencement of a suit at law to quiet the title to this large and valuable prop- erty. It is believed an amicable arrangement can be made with the proprietors of the Spanish grant to save the city harmless from expense in case of the eventual confirmation of their title to this immense domain. The great importance of this subject is my apology for reiterating my earnest recommendation of this subject to you for your immediate action."
In April, 1857, the following resolution was adopted: That the proposal of H. P. Irving and Joseph Baldwin be hereby accepted, and that they be instructed to commence suit immediately for the recovery of the water front.
In his message of March 28, 1860, Mayor J. P. M. Davis refers to the subject in these terms: "Prior to the organization of the city government, Oakland had fallen a prey to the passions of designing men, who, in an avaricious desire to accumulate wealth, regardless of the means by which it was to be obtained, seemed to set at defiance all rights of property, public and private. The results of this were oftentimes manifested in scenes of lawlessness and disorder on the one hand and a reckless regulation and control of municipal affairs on the other. The consequences were that when the city was organized under the charter of 1854 she was found despoiled of all the marsh lands which had been donated to the town by the Legislature of the state, and burdened with an enormous debt, incurred by most reckless means. For the recovery of the land a suit has been instituted by the city which is now pending in the supreme court of the state."
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In 1860 the council received a communication from Irving & Thompson, in- forming them that the remittitur in the case of the city of Oakland versus H. W. Carpentier, et al., had been sent down and that the costs were due thereon. These were ordered paid on May 9th. In the meantime Mr. Carpentier attempted to steal a march upon his antagonists in the hope that he might be enabled to keep the water front property. To this end he obtained the passage of an act through the Legislature, entitled "An Act to amend an Act Entitled an Act to Incorporate the City of Oakland," confirming all the ordinances passed by the town of Oakland. Of this proceeding the council and the citizens of Oakland were wholly ignorant. The twelfth section of the act was as follows: "The corporation created by this act shall succeed to all the legal and equitable rights, clauses and privileges, and be subject to all the legal or equitable liabilities and obligations of the town of Oakland; and the ordinances of the board of trustees of said town are hereby ratified and confirmed, and the common council shall have power to maintain suits in the proper courts to recover any right or interest, or property which may have accrued to the town of Oakland." When the news of the passage of this reached the city officials a meeting was immediately convened, and on July 24, 1861, the following resolutions denouncing the act were passed and published in the newspapers and steps were taken to resist any attempt to enforce the law and taken to secure its repeal. As soon as the Legislature became aware of the true intent of the act it was promptly repealed at the next session.
In 1863 the water front question assumed a new phase, as will be learned from the following action: The city council of Oakland did, on the 14th day of January, A. D. 1861, pass an ordinance granting the right of way to the San Francisco and Oakland Railroad Company to construct their road through the city of Oakland, and, as a further inducement for the construction of their road, granted to said company the use of a portion of the overflowed lands situated at the western terminus of said road; and that said city council did, on the 21st day of January, 1863, prepare a bill and forward the same to the Alameda delega- tion in the Legislature, ratifying and confirming said ordinance and the deed exe- cuted in pursuance thereof, which bill is now pending in the Senate; and that opposition to the passage of said bill has been made by parties claiming all the overflowed lands within the limits of the city, and whose aim is to defeat the construction of said road or of any other similiar enterprise, and thereby secur- ing a monopoly of the transportation of passengers and freight to and from the city, under an ordinance improperly obtained from, and, as we believe, illegally passed by, the board of trustees of the town of Oakland, in the year 1852; there- fore, be it
Resolved, That the city council of Oakland regard the construction of said road as of such vital importance to the interests of this community and of the people of Alameda county, that the city of Oakland can well afford to grant the use of said lands to said company as an inducement for its construction, and we respectfully represent to the honorable Legislature that the passage of said bill will destroy rather than establish a monopoly and give almost universal satis- faction to the people of this city and county.
A copy of this resolution was sent to A. M. Crane, member of the House for Alameda county. On April 21, 1863, Eugene Casserly, attorney, afterward United States Senator, was retained to represent the city of Oakland, and arrangements
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were made with him to draw up a brief and conduct the case of the city versus Car- pentier at the time pending, on appeal, in the supreme court. The city was defeated, but Carpentier failed on all material points. On legal technicalities he prevented any final judgment of ejectment against him. The case was com- menced in the third district court in Oakland, and, ou application for a change of venue was transferred to the fourth district court in San Francisco. A de- murrer was entered by Carpentier, and was heard by Judge Campbell. Judge Baldwin of the supreme court gave judgment against the city. The city set up an action for fraud when it should have been an equitable action, and on the first hearing of the demurrer, Judge Baldwin held that the grant of the exclusive right of the franchise by the town trustees was absolutely void. But he could not reach the power of the question of the water front, by reason of the defective pleadings. There was a rehearing granted in the supreme court, and the case was sent back to the court below, with the suggestion that the complaint be amended on the part of the city. But the city failed to amend. In the district court, a judgment was given for the city, but when it went again to the supreme court the judgment was reversed in favor of Carpentier.
It remains a mystery to this day why the city never amended the complaint. It is evident that the court was at first on the side of the city because it held that so far as the right of the question was concerned, the city was correct. Had the pleadings of the city been perfected there is but little doubt that the finding of the lower court would have been sustained. In view of the trickery and no doubt bribery which attended all the acts of Carpentier and his associates, it must be concluded that fraud and the improper use of money determined the results of the case in court.
In August, 1867, the following ordinance was passed by the city council : Section I. A suit shall be prosecuted in the proper court to determine the rights of the city to the water front, against the persons claiming the same adversely, and John B. Felton is hereby retained to act for the city in said suit to be paid for his services by a conveyance of an interest equal to fifteen per cent of the prop- erty and franchises recovered by the city ; but to receive no compensation for his services in case nothing shall be recovered. Witnesseth, That for the consider- ation hereinafter mentioned, the party of the first part undertakes and agrees, as the attorney-at-law of said city, to institute and prosecute to final judgment, a suit in the proper courts against the person or persons so claiming said lands and franchises, adversely to said city; to render his personal services therein until the title and right to the cause shall be finally settled and determined by the supreme court; and the city of Oakland promises and agrees to pay said Felton for such services by conveying to him an interest equal to fifteen per cent of all the property recovered by the city in said litigation, after the same shall have been finally terminated, and a like interest in the franchises, which shall be adjusted, as against the persons so claiming them, to belong to the city ; it being understood that, in case nothing is recovered, the city is to pay the nec- essary court costs and disbursements incurred in said litigation.
On March 27, 1868, the "Water Front Company," whose first board of trus- tees consisted of E. R. Carpentier, Horace W. Carpentier, Leland Stanford, John B. Felton, Samuel Merritt, and Lloyd Tevis was incorporated. The arti- cles of incorporation of this company we now append: This certifies that we, Vol. 1-5
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whose names are hereunto subscribed, do hereby associate ourselves together, and form a company, under the provisions of the act of the Legislature of the State of California, passed April 14, 1853, entitled "An act to provide for the formation of corporations for certain purposes," and the act amendatory thereto and supplemental thereto. The objects for which the said company is formed are, to acquire, build, construct, own, hold, manage, use, and control wharves, docks, basins, dry-docks, piers, and warehouses in the city of Oakland, and in the vicinity thereof, in the State of California, and to lease, sell, convey, grant, mortgage, hypothecate, alienate, or otherwise dispose of the same; to borrow and loan money; to engage in and carry on the business of commerce, foreign and domestic; to purchase, acquire, manage, hold and control or to lease, sell, convey, grant, mortgage, hypothecate, alienate or otherwise dispose of the water front of said city, or any part thereof, and any submerged tide and other lands in and about the Bay of San Francisco, or elsewhere, together with the rights and franchises connected therewith or appurtenant thereto; and also all other property, real, personal, or mixed, choses in action, rights, privileges, or fran- chises. The corporate name of the said company shall be "The Oakland Water Front Company," the time of its existence fifty years, and its principal place of business shall be located in the city of Oakland, in the county of Alameda, and State of California. The amount of the capital stock of said company shall be $5,000,000, and shall consist of 50,000 shares, of $100.
The claims, demands, controversies, disputes, litigations, and causes of action heretofore existing between the city of Oakland, on the one part, and Horace W. Carpentier, and his assigns, on the other part, relating to the force, validity, and effect of a certain ordinance passed by the board of trustees of the town of Oakland, on the 18th day of May, A. D. 1852, are hereby compromised, settled and adjusted, this 9th day of March, 1868, and the said above-mentioned ordi- nance and conveyance are made valid, binding, and ratified and confirmed, and all disputes, litigations, controversies, and claims in and to the franchises and property described in said ordinances and deed of conveyance, and every part thereof, are abandoned and released to the said city of Oakland, to the said Carpentier and his assigns, upon the following conditions, to wit:
That the said Carpentier and his assigns shall convey, by proper and suffi- cient deeds of conveyance, all the property and franchises mentioned and de- scribed in said ordinances and deed of conveyance herein before referred to, to the Oakland Water Front Company, to be used and applied in accordance with the terms, conditions, stipulations and agreement contained in certain contracts between the said Oakland Water Front Company and the Western Pacific Rail- road Company, and other parties, bearing even date herewith, with the excep- tions in the said agreement specified. But nothing herein contained shall be deemed to affect any rights of the San Francisco and Oakland Railroad Com- pany, derived under an ordinance of the city of Oakland, passed the 20th day of November, 1861. In pursuance of the foregoing ordinance Horace W. Car- pentier executed and delivered to the Water Front Company the following deed :
This indenture, made the 31st day of March, 1868, between Horace W. Car- pentier, party of the first part, and the Oakland Water Front Company, party of the second part, witnesseth: That the said party of the first part, in con-
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sideration of the sum of $500 to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, hereby gives, grants, sells, and con- veys to the said party of the second part, its successors and assigns, the follow- ing described premises, to wit: All of the water front of the city of Oakland- that is to say, all the lands, and lands covered with water, lying within the limits of the said city between high tide and ship channel, being the water-front lands within the boundaries described and granted in and defined by the act entitled "An act to incorporate the town of Oakland and to provide for the construction of wharves thereat," approved May 4, 1852, and the act entitled "An act to incorporate the city of Oakland," passed March 25, 1854, and repealing certain other acts in relation to said city, approved April 24, 1862, together with all the privileges and appurtenances, rights, and franchises thereunto appertaining and belonging, together with all rights to collect tolls, wharfage, and dockage thereon and therefrom, and all lands, rights, privileges, and franchises of every kind and nature which have been heretofore acquired by the party of the first part, from the town of Oakland and the city of Oakland, or either of them, and all the rights to the above-mentioned lands, franchises, and privileges which he may hereafter acquire from the said city of Oakland, excepting therefrom, how- ever, so much of the said water front as lies between the middle of Washing- ton street and the middle of Franklin street and extending southerly to a line parallel to Front street and 200 feet southerly from the present wharf, accord- ing to the map of the city of Oakland, with the rights of wharfage, dockage, and tolls thereon, to have and to hold the aforesaid and aforegranted premises to the said party of the second part, its successors and assigns, to their use and behoof forever, in witness whereof the said party of the first part has hereunto set his hand and seal the day and year aforesaid.
At this time (1868), the location of the Central Pacific Railroad terminus was about to be fixed in Oakland, through negotiations then pending and about to be closed satisfactorily. Everyone said, "Secure the terminus at all hazards, 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 assist in settling 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 here, and after feasting and carousing at municipal expense, went back deter- mined 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 unproductive lands, suddenly found themselves transformed into mil- lionaires. 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 doubtful interest in the water front to a corporation, getting in return therefor that which trebled in value every foot of property within the city limits.
Succeeding the action of the council in taking possession of the water front lot formerly granted to the San Francisco and Oakland Railroad Company, that
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corporation brought suit in the third district court against the city of Oakland. Judge S. B. McKee decided for the city on the ground that the act was not done nor the sale or lease made in the manner prescribed by the city charter. The company appealed the case.
In this year (1869) the Water Front Company entered suit against the city to quiet title, which on May 10th, was duly reported on by the city attorney. In regard to the matter, August 9th, E. R. Carpentier forwarded the following com- munication to 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 understanding 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 entertained of its validity, the company has thought it proper that the case be dismissed."
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