under which any estate greater than for a term of thirty-seven years can be found ever to have been created, and that the thirty-seven years have expired, ending May 17, 1889, long before this suit was begun; third, that under the general doctrine of the decisions, English and American, and of immemorial usage and the common law, as well as under the doctrine of the great Chicago decision. and of the decision in Shively vs. Bowlby, Webber vs. The Harbor Commissioners, Pollards Lessees vs. Hagan and Martin vs. Waddell, no title in this water front could pass to any private owner, whether in the estuary surrounding and underlying this government harbor or extending from shore line into the ocean waters of the bay. The city was not a party to the suit, but was permitted to participate as amicus curiae by special leave of the court. As the case progressed the court saw from the evidence and facts that the state had granted the water front to the town and city of Oakland and that it seemed therefore that the city was a party if not the real party interested. Later in the case it seemed as if the court was concerned as to whether the suit brought by the state should not practically go out of court without disposing of the real merits and great questions involved and whether the court should conclude not to take up the matter piece meal, but await the coming up of one of the other water front suits on writ of error, at which time with all evidence before them the court could determine the rights of all parties.

On September 13, 1897, the supreme court of California decided that private ownership of the water front lands of Oakland could not extend below ordinary low tide, thus securing for the exclusive control of the people the water where wharves and landings could be constructed. The next step on the part of the city was to establish its right to open all streets to the line of low tide. With this additional right no private corporation or individual, it was declared, could control or levy tolls on the water commerce of Oakland and would be forever barred from any interference with the brilliant prospects of the city.

The supreme court in September, 1897, remanded the suits of the city of Oakland against the Water Front Company to the superior court of this county for a new trial. The city in 1898 was represented by W. R. Davis, W. L. Hill, E. J. Pringle and H. A. Powell, and the company by A. A. Moore, W. F. Herrin, J. C. Martin and H. S. Brown.

Early in 1897 there were pending against the city several suits for pieces of land on the water front. S. G. Cook sued for a tract at the foot of Peralta street, the Southern Pacific Company sued for possession of the wharf at the foot of Broadway and the same company sued Ex-Mayor George C. Pardee and the members of the old city council for their act of removing the piles driven. in the water front. In the case of Taylor against Dortin and others over water front lands at the foot of Castro street, the defendants won and therefore remained in possession of the property. The Oakland Water Front Company had . a collateral interest in the suit as lessors of the property to C. B. Taylor. At this time water frontage sold at from $40 to $200 per front foot. In 1891 the city paid the company $500 per acre for two acres for a pumping station site, but this did not carry frontage rights. Mr. Moore, attorney for Mr. Taylor, appealed the case.

The purpose of the city's fight was to show by exhibits and testimony the use and dedication of the streets leading to the water front prior to and at the

time of the compromise of 1868. This purpose was in conformity with the order contained in the supreme court decision holding the city to be entitled to all the streets across the water front to low tide line where such dedication and uses could be established. The company claimed that prior to 1868 the streets in question could not of necessity be public highways dedicated by user to public

use.

On February 7, 1901, Judge Ogden filed an opinion in the suit of the city against the Oakland Water Front Company to quiet title to tide lands, that the title to such land was still vested in the city providing it owned the water front prior to 1868 when the streets were dedicated to public use. This left the street question open for the supreme court.

The suit of the city against the Oakland Water Front Company was finally disposed of in April, 1902, by Judge Ogden who signed the decree in accordance with his findings a week before. The supreme court decision took from the company nearly eight thousand acres of land, but left them the lands improved or in course of improvement by them. The city paid the costs of the first trial. and the company of the retrial.

In February, 1906, Oakland granted to the Western Pacific Railroad Company the right of way to the water front and to maintain and lay tracks, build terminal depots, warehouse slips and freight sheds at the end of a pier to be constructed at the end of the north training wall along the estuary and directly opposite the Alameda mole pier line of the Southern Pacific. As the latter claimed the strip of land over which the Western Pacific line would have to be built, it asked for and was granted an injunction to prevent work thereon. An appeal was taken and sustained by the circuit court of appeals. The latter held that it was plainly set forth in the transfer of the water front to Carpentier in 1852 that the rights of the Southern Pacific terminated at the end of thirtyseven years. The court said, "The line of low tide that was in existence at the time of the act of May 4, 1852, was enacted as the boundary of the grant of the state to the city of Oakland. The state is the sole owner of the land beyond that boundary." The decision stated in effect that the Southern Pacific was practically a trespasser upon property to which it had no right.

It was a settled fact in 1906 that although the courts had decided that the water front lands belonged to the Southern Pacific, the right to construct wharves and regulate their use still belonged to Oakland. It was further settled that the proper course for the city was to secure competing lines of railway. However, at this time Oakland had been free for twelve years from the domination of the Southern Pacific system. Therefore, when it was proposed in February, 1907, to transfer to the state officials the right to assume sovereignty over the water front, many citizens promptly opposed the measure. It was seen that such a step might again place the whole water front under the domination of the railroad company. The betrayals of 1852, 1868 and 1881 were not forgotten nor forgiven-were a perpetual injunction against the surrender of municipal rights.

It appeared early in 1907 that the Southern Pacific and the Western Pacific had united to gain control of the water front for fifty years through the Leavitt bill. Their intentions were personally opposed at Sacramento by Mayor Mott and

his immediate supporters. Through their efforts the bill was abandoned by the railway representatives.

The final vote in the council in November, 1910, on the proposition to lease a tract on the water front to the Southern Pacific Company was nine to two in favor of the franchise. This was regarded as the settlement of fifty years of struggle over the water front claims. About the same time the war department conceded to Oakland the right to reclaim the submerged lands in the Key Route basin.

The Seventh street franchise for fifty years was granted to the Southern Pacific Company in December 1910 upon the following terms: (1) That the railroad should receive 5 per cent interest on the capital invested-$723,500; (2) that the railroad should also receive 2 per cent on this sum for a parking fund; (3) that the railroad should receive 70 per cent of the gross amount collected for cost of operation, taxes, etc. This was a definite and fixed percentage which should not be increased and during the term of the franchise should include the cost to the railroad of renewals, betterments, etc., ordinarily included in the term "cost of operations;" (4) that the remainder should be divided between the company and the city in the proportion of 35 per cent to the city and 65 per cent to the company. This was called "the Oakland Plan.”

CHAPTER V

TRANSPORTATION

There passed the Legislature on May 20, 1861, an act granting to certain persons "the right to construct and maintain a railroad through certain streets in the city of Oakland." The line ran from a point at or near the westerly end of the bridge leading from the city of Oakland to the town of Clinton to a point on the Bay of San Francisco, where the Alameda county shore approaches nearest to Yerba Buena Island, or at such a point as a railroad may be built from to said island. The right to so construct, maintain, and operate was granted to Rodmond Gibbons, William Hillegass, R. E. Cole, Samuel Wood, Joseph Black and George Goss, their associates, successors or assigns, for a period of fifty years. On November 20, 1861, right of way along Seventh street from its easterly limits to or near its junction with Market street, and thence in a straight line to the western boundary of the city, was granted and released to the San Francisco and Oakland Railroad Company, for the purpose of laying a single or double railroad track and the necessary side-tracks. On September 2, 1863, the first train of cars passed over the line, the track being completed from the end of the wharf to Broadway. After that date the cars made regular trips, in connection with the Contra Costa ferry-boat. The first engine and first three cars used on the line were built at Oakland Point by Mr. Young. The San Francisco and Alameda railroad was being constructed and its junction with the Oakland line was seriously contemplated. On April 1, 1865, the local line was extended to Larue's wharf, at San Antonio (Brooklyn) beyond which it did not go until purchased by the Central Pacific.

The little locomotive "J. G. Kellogg" was the second built on the Pacific coast; it was constructed in Alameda in 1865, by A. J. Stevens, who at that date was master mechanic of the little San Francisco and Alameda railroad of which A. A. Cohen was president. It was built on the open Encinal. This was before the Central Pacific absorbed the Cohen road. After various uses, it was finally disused, but in 1891 was resurrected, fixed up, painted and sold to the Shasta Lumber Company and again put into service.

On August 24, 1867, the council granted permission to the San Francisco and Oakland Railroad Company to erect a station at the Point. In 1863, the Western Pacific Railroad Company was formed, its route being from Sacramento via Stockton and Livermore to Oakland, and in the same year the Central Pacific Railroad Company was established. On August 24, 1868, an ordinance granting to the Western Pacific the right of way through certain streets in the city of Oakland, was passed; and on September 25, 1869, Leland Stanford, president of that company, petitioned the city council that it would be more convenient for the company, and beneficial to the public interests if the council would amend the ordinance granting the right of way through Fifth street so that the same should