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 communication 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."

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 watercourse to be included between parallel lines, and to have an uniform width of 400 feet," a width that was deemed insufficient for the future commercial wants of Oakland.

On November 10, 1879, the Central Pacific Railroad Company filed a complaint against the city of Oakland in an action to quiet the title to the water front. On December 1st, same year, the council authorized the employment of counsel to defend the suits just instituted against the city to quiet the title to the water front. Albert A. Cohan was employed, his retainer being $5,000. A little later Col. J. P. Hoge was employed and a similar retainer was ordered paid to him.

On January 12, 1882, there was passed "An ordinance to prevent further litigation concerning the Oakland water front." Judge Baldwin had previously 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 Carpentier. We think that the general grant of this exclusive privilege is wholly void as exceeding the powers of the corporation." Judge Hoffman said that "the legality of the grant of an exclusive franchise cannot for a moment be supported." The supreme court of California decided: "We think then that this general grant of this exclusive privilege is wholly void." Governor Haight gave it as his opinion that "The claim advanced by the Water Front Company is perfectly baseless." In 46 Cal. 18, appear these words:

"Nothing short of a very explicit provision in the law will justify the court in holding that the Legislature intended to permit the shore, between high and low water mark, to be converted into private ownership."

Early in 1882 à petition signed by over one thousand residents of Oakland asked the council to pass the proposed ordinances providing for the dismissal of the suits pending between the city and the Central Pacific Railroad Company and the Water Front Company. The ordinance provided that the city should file a disclaimer of any interest or estate in certain water front lands in contention. The petitioners desired that all suits should be withdrawn and all contests ended, and hence the decisive action of the council in January, 1882, in filing in court a disclaimer to any portion of the water front not already settled. It was claimed that the unwise action of the city in suing over again cases that had already been settled several times drove the railroad company to Port Costa where they could build grain warehouses on land the title of which was not contested. That company had planned here wharves and warehouses on the city front, but just at the critical moment wiseacres raised a great furore concerning the title, suit was commenced and the result was enormous costs and the loss of the valuable improvements.

The water front trouble in 1892 was serious. The Water Front Company, it was presumed, owned the frontage, but when they began to sell the tracts and when the purchasers began to take possession at this time, they were forced off by rioting mobs which claimed that the water front belonged to the city. In August the Water Front Company announced its willingness to do anything fair and reasonable for the improvement of the water front. Mr. Crocker officially said, "If your city will act in harmony with this company there can be no reasonable doubt about the future of the water front." They were ready to lease or sell any portion of the frontage not already disposed of. The case which was considered to settle the title to the water front property came up in the superior court in August, 1892, and was entitled Oakland Water Front Company vs. J. P. Dameron, et al., and was brought to quiet title to a tract on the creek frontage between Webster and Alice streets. The plaintiff was represented by A. A. Moore, J. C. Martin, A. B. Hotchkiss, C. E. Wilson, Harvey S. Brown and Frank Shay. The defendants were represented by A. B. Coffin, Michael Mullaney, Ben Morgan and W. R. Favis.

The three superior judges in October, 1892, Henshow, Greene and Ellsworth, decided that the Carpentier ordinance should go into the evidence; that the ordinance was a valid instrument, that there were no reasons apparent that the grant was obtained by Carpentier improperly or illegally and that the town trustees had the right to authorize the transfer of the tide lands to Carpentier. By January 18, 1893, sixty actual trial days had been consumed on the water front case. All of this time was occupied by the company in presenting its side of the case. The trial commenced on April 16, 1892, and there were numerous adjournments and suspensions to enable the lawyers to present their complex cases in the best and clearest light. The Chicago lake front decision had direct bearing upon many questions involved here. But the fact that the Chicago case in the supreme court was decided by four justices to three, furnished both sides in the Oakland case with an abundance of legal and colloquial material for new and advanced grounds in the great battle here. The first trial of the water front case was

tedious in the extreme. The appeal transcript numbered 2,000 pages. The company introduced 272 exhibits and the city 149. The case was finally concluded late in 1898.

On January 24, 1893, the superior court of the county sitting in bank on the water front case granted the motion for a non-suit and thus threw the Water Front Company out of court. The court upheld the motion to strike out the evidence of the grant or grants from the town of Oakland to H. W. Carpentier and all the other evidences of title in the Water Front Company to the land in question. The decision of the court followed in a large measure the findings of the supreme court of the United States in the Chicago lake front case. It was a complete and crushing defeat for all the claims growing out of the presumed transfer of the Oakland water front to Mr. Carpentier-a cloud that hung like the sword of Damocles over all the water front title here. A stay of sixty days. was granted to enable the company's attorneys to perfect an appeal. The jury fees were $2,147. Thus the state owned the water front. The city had shamefully abused its trust. It had the right in the interest of commerce and navigation to give short leases for the use of small portions to various individuals or corporations, but it did not have the right to give away or sell over nine thousand acres of land and about thirteen miles of water front to one corporation in perpetuity. The decision was that a state had rights to water front land which Legislatures and city councils could not alienate nor overturn. This should have been the decision and would have been, back in 1854, had not the influence and money of Carpentier prevented the correction of the papers in the case upon the suggestion of the state supreme court. But the trouble was not ended.

The question of riparian rights was not settled by this decision. If the Water Front Company could establish their claim to riparian rights they would gain control of the tide to low water and thus virtually a title to deep water. Thus it was believed that the state should at once proceed to adjust all the riparian claims.

The water front decision directly affected Berkeley, as the stretch of water on the west had ever been a vexing question. The extension of streets westward to the water was violently opposed by all persons claiming the tide lands and water front. Private owners claimed the shore of the bay out to deep water and thus public construction of piers and wharves was effectually stopped. The decision of the court caused great rejoicing among all persons who claimed the right of the town to the bay frontage.

It was this decision of the supreme court in 1893 that really freed Oakland from the fetters of the iniquitous water front octopus. All the right of the Water Front Company to fully three-fourths of the frontage was totally denied on the estuary and rendered unprofitable the further holding of the remainder. The company, seeing the inevitable, offered its holdings for sale at the rate of about one hundred and fifty dollars a front foot; this land lay along the north shore between Broadway and the Peralta street slips. This freedom of the water front from contest was succeeded by the rapid completion of the ships channel, the construction of ample wharves and the establishment of large and valuable industries. The Adams wharf was built east of the bridges with a frontage of 1,540 feet where vessels drawing twenty-three feet of water at low tide could load and unload. Balfour Guthrie & Company, built similar improvements at the

foot of Market street, which were controlled by the Howard Company. James de Fremery built large improvements on the Session's Basin property. By 1902 Oakland harbor could boast of the following advantages: Ships and cars met on its water front; it was land locked; no storm disturbed its waters; it was the only quiet harbor on the bay where no wind disturbed the vessels; it had the largest yard on the bay for the building of wooden ships; already the tonnage built annually exceeded that of all other ship yards on the shores of San Francisco bay combined; here was the only marine railway dock for repairing and cleaning large ships in San Francisco bay; the largest wooden sailing vessels ever built on the shores of San Francisco bay were launched from Oakland shipyards; the largest coal bunkers in the state were here.

In 1893 the so-called water front bill was introduced in the Legislature by Earl and Dodge. It appropriated $15,000 to defray the costs and expenses necessary to employ counsel to conduct suits to quiet the title to the Oakland water front, San Antonio creek and its bays and estuaries and the Alameda water front and for the recovery of the same by the authorities. The water front bill was drawn by W. R. Davis at the request of Assemblyman Dodge. The appropriation of $15,000 was changed to $10,000. The bill repealed all the ordinances of the city council granting the Oakland water front to Carpentier and gave the property to the city to be held in trust for the public. The whole city of Oakland was dumfounded late in March, 1893, upon receipt of the message that Governor Markham had refused to approve the water front bill. He said that if the state had the power, as assumed by the bill, to pass the title to the water front which it held as a public trust, then it was a matter of history that it had already parted with the title by the act of 1852 by which it was granted to the city of Oakland; that if the state had the power to grant away the title, then the present act was idle and meaningless, and that as a matter of public policy why should the state make a special grant of this character to one municipality, when it had been declared the policy in all other instances to manage trusts of this character through the instrumentality of its own chosen officers who were directly responsible to it, as in the instance of the San Francisco harbor water front and those of San Diego and Humboldt bay.

Judge McKenna of the United States circuit court decided in 1893 that neither the city nor the railway company should take any further action concerning the water front until the rights of both parties were settled in court. In 1893 the city of Oakland began suit against the Water Front Company to quiet title to a strip of land extending from Lake Merritt around the water front part of the Oakland mole. The examination of H. W. Carpentier was a striking feature of the trial in 1893. He was an old man and had heaps of papers before him, but answered satisfactorily all questions put by counsel, though slowly and deliberately. He produced many of the original documents of the very early history of the city and threw much light on disputed points. He said that in 1852, when the place was incorporated as a town, it had but six or eight buildings and but sixty to seventy inhabitants. In March, 1894, the supreme court of the United States refused the motion made by City Attorney Johnson to make the city of Oakland plaintiff with the state in the water front case. This left the city in an independent position for any further action concerning the water

front. In May Judge Ogden denied the application of the Water Front Company for a change of venue.

The city sued the Water Front Company to recover the entire water front. The defendant answered and the city entered a demurrer which was sustained by Judge Ogden. The company then filed an amended answer in which appeared the following statement: That the entire water front of the former town and city of Oakland outside of the harbor between the line of high tide and ships channel and for a distance of more than 21⁄2 miles between said points, in its natural state, was and still is entirely unfitted for commercial purposes and uses by reason of the shallowness of the water thereon; that in order to construct a wharf in aid of commerce it is necessary to fill in or drive piles for the distance of 21⁄2 miles before ships channel is reached and before a point is reached at which ocean steamers or vessels can land or receive their cargoes; that when the deed was made and delivered to Carpentier the title to said land was valid by the laws of the State of California as then expounded by all the departments of its government and administered in its courts of justice. Wherefore defendant (the Water Front Company) says that the validity of said title cannot be impaired by any subsequent decision of the courts of said state altering the construction of the laws under which defendant acquired his property. The answer stated that the water front was sold for $150 under a judgment against the city in 1854.

In July, 1895, Judge Ogden decided that the city of Oakland was the real owner of the water front and that the Carpentier grant in 1852 was not legal. The basis of the decision was that the grant was against public policy. The number of acres recorded by this decision was about seven thousand eight hundred and seventy. All of the fourteen titles held by the Water Front Company were declared illegal. The decision left the railroad company in possession of eighty acres. The Water Front Company was left in possession of all the improvements it had made-moles, wharves, slips and ferry landings. This case was hotly contested on both sides and the decision was not only exhaustive but contained a complete history of every step in the controversy. The company promptly appealed from the decision.

Alameda was directly affected by the water front decision. Being a peninsula it had more water frontage than had Oakland or Berkeley.

On March 18, 1895, news was received that Chief Justice Fuller had delivered an opinion dismissing the bill in equity brought by California against the Southern Pacific Railroad Company involving the ownership of the Oakland water front for want of original jurisdiction. Nothing concerning the merits of the case was settled by this ruling.

In August, 1896, the Oakland water front case was submitted to the supreme court, the attorneys for the city being W. R. Davis, E. J. Pringle and W. L. Hill. In his argument before the supreme court of the United States W. R. Davis summed up the case for the city of Oakland with the following points: First, that under the act of May 4, 1852, viewing the statutory language as language and getting its true construction, the trust is so expressed that it appears affirmatively that the city could not part with its title to this water front or abdicate its trust to another; second, that there is no fair or just construction of the ordinance of 1852 or of any of the subsequent ordinances or proceedings