1. If a bill in equity, brought by the proprietor of a city lot,
avers that the rights of the plaintiff are illegally, wrongfully
and injuriously affected by the acts of the defendants, the bill on
its face entitles the plaintiff to relief.
2. The defendant cannot sustain a demurrer to such a bill on the
ground that he was justified by an act of state legislature.
3. The Court is bound to notice judicially the laws of the state
defining the limits of a city in cases where the pleadings make it
proper to do so, but not on a demurrer, where the facts, as stated
in the bill, make it the duty of the Court to rule in favor of the
plaintiff.
4. A demurrer is a denial in form and substance of the
plaintiff's right to have his case considered in a court of equity
and an admission of all its allegations that are properly
pleaded.
Frederick Griffing filed his bill in the district court against
Daniel Gibb and Donald Fraser, averring that he was the owner of
two lots in San Francisco which originally fronted on the natural
shore of the bay with bold deep water in front; that he bought this
property with a view to its waterfront; that he built warehouses
and a wharf on it to which ships of the largest size could come;
that when he commenced his improvements, there was no sign of any
streets near him which interfered with his access to the water, the
lines of Filbert and Battery Streets being defined only on the city
maps; that the defendants are engaged in filling up a certain part
of the bay in a way which will prevent ships from coming to his
warehouse -- the part to be thus filled up being a lot of one
hundred varas square, covered by navigable tidewater and situate
between, and forming, the northeast corner of, Filbert and Battery
Streets as defined on the city map. The plaintiff asserts that
these acts of the defendants are in violation of his rights,
injurious to the public, and contrary to the Constitution and Laws
of the United States
Page 67 U. S. 520
and of the state of California, and therefore prays for a
perpetual injunction.
To this bill the defendants demur; the court sustained the
demurrer and the plaintiff having failed to amend the bill within
the time limited by the rule of court, a final decree was passed
dismissing the bill. Thereupon the plaintiff took an appeal to this
Court.
Page 67 U. S. 521
MR. JUSTICE WAYNE.
The complainant seeks to obtain a perpetual injunction to
restrain the defendants from piling and improving a lot of land
claimed by them, which is said in the bill to be within the inside
of the waterfront line of the City of San Francisco, and always
covered by the tidewaters of the bay. He states that he is the
owner in fee simple, and is in possession of two parcels of land,
the first beginning at a point where the east line of Sanson Street
intersects the south line of Filbert Street, running thence
southwardly along the east line of Sanson Street 137 feet; thence
east, at right angles to Sanson Street, 275 feet; thence north,
parallel with Sanson Street, 137 1/2 feet, to a point in range with
the south line of Filbert Street; thence west 275 feet to the point
of beginning. The second,
"A lot beginning at a point where the east line of Sanson Street
intersects the northern line of Filbert Street; thence north along
the east line of Sanson Street 137 1/2 feet; thence at right angles
to Sanson Street 275 feet; thence south, parallel with Sanson
Street, 137 1/2 feet, to a point in range with the north line of
Filbert Street; thence 275 feet to the place of beginning."
The complainant asserts that he is in the exclusive occupation
and possession of both lots of land under a title in fee; that he
has buildings and improvements upon them of the value of $200,000.
He further avers that his lots originally fronted on and were a
part of the natural shore of the Bay of San Francisco; that they
had a deep and high bank in the rear, with a bold and deep water in
front, where the tide ebbed and flowed, where ships of the largest
class navigated in safety to receive and discharge cargo. Passing
over other allegations in the bill not necessary to be mentioned in
this connection, the complainant asserts that he commenced to make
his improvements in the year 1851, and that he had used and enjoyed
them for the purposes for which they had been constructed, until
interfered with by the defendants, having piles driven in front of
his premises, under the navigable waters of the bay, extending
over
Page 67 U. S. 522
a space of 275 feet square. That the defendants assert,
notwithstanding his remonstrances against such piling, that they
have a right to drive them, and declare it to be their intention to
build a wharf upon a lot which they claim, situate as follows:
beginning at the northeast corner formed by the extended lines of
Filbert and Battery Streets, being a lot of land covered by the
navigable tide of the bay of San Francisco &c., where ships of
the largest class habitually pass and repass in their approaches to
the complainant's warehouses. It is then averred that if the piling
shall be done at that point, that it will interfere with the public
use of the harbor and the bay, obstruct the navigation, divert the
tide from its usual flow and ebb, change its current, and shallow
the water by deposits of sediment, as it has already done, there
being shallower water at the point designated than there had been
before the defendants wrongfully began to pile there, and
particularly so in front of the complainant's premises, than there
had been when he began to improve his premises in the year 1851;
that the depth of the water there is being constantly lessened by
said piling, greatly to the complainant's pecuniary loss, and will
be to his irreparable injury unless the defendants shall be
restrained from continuing their unlawful acts by an injunction,
and by a decree of the court for the abatement of the defendants'
piling as a nuisance. That the piling which has been done by the
defendants is contiguous to his premises; that it is on a lot
covered by the ebb and flow of the tide of the Bay of San
Francisco, and that the defendants claim the lot to be within the
City of San Francisco.
The defendants filed a general demurrer to the bill. We think
that the court erred in sustaining it, and in dismissing the bill
of the complainant for want of an amendment, which the court
directed to be made by the next rule day. On the demurrer, the
ruling of the court should have been for the complainant, instead
of which the court dismissed his bill. The only point, in our view
of the case, when it was on its hearing in the court below was
whether the complainant had not shown, by the facts stated on the
face of his bill, artificial as it may be in point of form, a case
for relief within the jurisdiction
Page 67 U. S. 523
of a court of equity. We think it to be so, and shall remand it
to the court below for amendment and further procedure, as in the
judgment of that court, the case may require.
We further observe that the filing of a general demurrer was not
in the pleadings, and facts of the case a proper defense. The
defendants might have resorted to a plea alleging matter, which, if
appearing on the face of the bill, would have been a good cause of
demurrer, or the bill should have been answered. The demurrer filed
was a denial in form and substance of the right of complainant to
have his case considered in a court of equity, but an admission
that all the allegations of it which were properly pleaded were
true. In respect to what was said in the argument that this Court
would, on the general demurrer of the defendants, judicially notice
the acts of California relating to the harbor of San Francisco, and
particularly of the Water Lot Act of the 26th March, 1851, we will
only remark that we should do so if the pleading in the case was
such as permitted it to be done, and if we did not think, as we
have already said, that upon that plea that the cause should not
have been dismissed, and that the courts should have ruled in favor
of the complainant; and it is now here ordered, adjudged and
decreed by this Court, that the decree of the said circuit court in
this cause be, and the same is hereby reversed, each party paying
his own costs on this appeal in this Court, and that this cause be,
and the same is hereby remanded to the said circuit court for
further proceedings to be had therein, in conformity to the opinion
of this Court.
