Alameda County

History

Past and Present of Alameda County, California - S. J. Clarke Pub. Co., 1914

CHAPTER IV
THE WATER FRONT CONVEYANCE

        There was introduced in the city council on May 17, 1852, an ordinance for the disposal of the water front belonging to the town of Oakland and for the construction of wharves, the essential part reading as follows: The exclusive right and privilege of constructing wharves, piers and docks at any points within the corporate limits of the town of Oakland, with the right of collecting wharfage and dockage at such rates as he may deem reasonable, is hereby granted and confirmed unto Horace W. Carpentier and his legal representatives for the period of thirty-seven years; provided that the said grantee or his representatives shall within six months provide a wharf at the foot of Main street, at least twenty feet wide, and extending towards deep water fifteen feet beyond the present wharf at the foot of said street; that he or they shall within one year construct a wharf at the foot of F street or G street, extending out to boat channel, and also within twenty months another wharf at the foot of D street or E street; provided that two per cent of the receipts for wharfage shall be payable to the town of Oakland. With a view the more speedily to carry out the intentions and purposes of the Act of the Legislature, passed May 4, 1852, entitled An Act to incorporate the Town of Oakland, and to provide for the construction of wharves thereat, in which certain property is granted and released to the town of Oakland, to facilitate the making of certain improvements; now, therefore, in consideration of the premises herein contained, and of a certain obligation made by said Horace W. Carpentier with the town of Oakland, in which he undertakes to build for said town a public schoolhouse, the water front of said town, that is to say, the land lying within the limits of the town of Oakland between high tide and ship channel, as described in said act, together with all the right, title and interest of the town of Oakland therein is hereby sold, granted and released unto the said Horace W. Carpentier and to his assigns or legal representatives, with all the improvements, rights and interests thereunto belonging.

        Mr. Carpentier at once entered upon his newly acquired possessions, and, in accordance with the ordinance and its provisions made a report respecting wharfage, on the 30th of December, accompanied by an affidavit that the due percentage of wharfage and dockage had been paid to the town of Oakland, up to date. On July 12, 1853, he reported in further proof of what was required from him, that "I have built a substantial, elegant and commodious schoolhouse for said town, which is now completed and ready for delivery. In the plan and construction of the building I have intended to go beyond rather than to fall short of the obligation of my contract. I would also state for the official information of the board that a free school is at present maintained at my expense in the building above referred to, which, I am happy to inform you, is well attended and promises to be the beginning of an important system of free schools. I herewith transmit to you a conveyance of the school­house together with a deed for the lots upon which it is erected; I trust that the building will meet your approval, and that the additional present of the lots will prove acceptable to your honorable body." This building stood near the corner of Fourth and Clay streets. On the 26th of August, Mr. Carpentier addressed the following communication to the board of trustees: "In pursuance of my contract with the town of Oakland in accepting the conveyance of its water front, I have already expended about $20,000 in wharves, besides those referred to in said contract, at a very heavy expense. Believing that the wharfage might be pleasing to some who seem to regard the wharves as at present conducted as a monopoly to be complained of, I propose to abandon the collection of wharfage, provided, the board of trustees will undertake perpetually to keep all the wharves in good order and repair. As some of my plans may be altered by your decision and as those plans would suffer from delay unless this proposal be accepted at the next meeting of the board, I shall consider it as withdrawn and void." These propositions were declined, but an ordinance was passed concerning wharves and water front, whereby, on the completion of the wharf at the foot of Main street (Broadway), and satisfactory arrangements being made in respect to the schoolhouse, etc.,—the water front of the town of Oakland would be granted to Carpentier "in fee simple forever."

        About this time or a little later it began to be felt by the citizens of Oakland that the board of trustees had exceeded their legitimate authority, that it was not in their power to sell, grant or release public property unto any individual for any consideration. They demanded from the board of trustees that legal proceedings should be instituted forthwith to recover the water front which belonged to them. This petition is not among the city records, but was presented September 10, 1853, and on the 19th the committee to whom the matter was referred made a report in writing, recommending that the prayer be not granted. This recommendation was unanimously adopted on the motion of Trustee Edson Adams.

        Immediately after the signing of the deed which conveyed the water front to him, Carpentier placed himself in communication with his niece in New York, Harriet N. Carpentier, and from her received an absolute power of attorney "to purchase, rent, receive and hold property, real or personal" in the State of California, "and to sell, lease, grant, assign and convey any and all property, either which I now hold or which I may hereafter acquire in said state, using his entire discretion in the premises," under date June 14, 1852. Then, on January 18, 1853, he sold a one-fourth undivided interest of the water front to Edward R. Carpentier, who was at the time commissioner of deeds for the State of California and residing in New York, for the sum of $2,800, together with an equal one-fourth of all rights, titles and claims either present or prospective; and, on August 2, 1854, while mayor of the city of Oakland (to which office he had been elected in the month of April of that year), he disposed of the remaining three-fourths to Harriet N. Carpentier, for the sum of $60,000, Under date April 4, 1855, Harriet N. Carpentier purchased from Edward R. Carpentier all the "right, title, claim and interest in and to the water front of the city of Oakland, in the county of Alameda, state aforesaid, that is to say, all the lands or land and water lying within the limits of said city between high-tide mark and ships' channel, the same being the one undivided one-fourth part of the premises herein before described" for the sum of $12,000; and on August 16, 1855, John B. Watson sold the entire water front property to Harriet N. Carpentier for the sum of $6,000. How the property ever passed into the hands of Mr. Watson was a matter of the profoundest mystery.

On December 5, 1853, Horace W. and Edward R. Carpentier executed a lease to Edson Adams and Andrew Moon, "for the period of twenty years, an equal, undivided two-third interest in and to the following described premises in the town of Oakland, county of Alameda, California, the same being a beach and water lot, bounded as follows: Commencing at a point in the easterly line of Broadway, protracted 420 feet southerly from the southern line of First street; thence running easterly on a line parallel with First street 105 feet; thence running northerly on a line parallel with Broadway 50 feet; thence running westerly on a line parallel with First street 105 feet to the easterly line of Broadway continued; thence southerly along said line 50 feet to the place of beginning, being the same lot on which the storehouse erected by the said parties is now standing," for the sum of $2,000. It was in this transaction that either Edson Adams or Andrew Moon appeared in the role of lessees, although it was pretty generally admitted that the former claimed one-half of the entire property, and, indeed, did eventually obtain his share by forcible measures, subsequently selling it to the Central Pacific Railroad Company for a large sum.

        For these and other cogent reasons a riot of indignant citizens was threatened; therefore, on October 22, 1853, it was ordered that "circumstances appearing to endanger the destruction by riot of the town records, the clerk is authorized to remove them to a place of safety." This was done. That the exasperated mob took their revenge upon the property of Carpentier is learned from the statement of the records, for on November 19th of the same year the president laid before the board of trustees a certified copy of a summons and complaint in the case of Horace W. Carpentier versus the town of Oakland, in a suit for $4,500, damages to the plaintiff's property from a riotous assemblage, to which, on motion of Mr. Moon, the president, an answer was directed to be filed. This was ordered to be transferred, by consent, from the district court of Alameda county to the superior court of the city of San Francisco on January 18, 1854, and on the 11th of February H. P. Watkins was employed as counsel to defend the cause, but on February 18th an ordinance was passed compromising the suit. On August

5, 1854, at the meeting of the city council, Alderman A. D. Eames, presented ordinance No. 34, entitled, "An ordinance to provide for the construction and maintenance of a wharf in the city of Oakland."

        The ordinance was passed at the regular meeting of the council held August 6, 1854, and on the 19th four separate petitions, signed in all by 170 citizens, were received in favor of building the wharf on the southwestern corner of the Encinal. At the same session, August 19th, the ordinance above mentioned having previously been sent to Mayor Carpentier for his signature and approval, was returned to the council without his approval.

        The council, however, refused to be influenced; they therefore referred the ordinance to a special committee, consisting of Messrs. Eames, Blake and Kelsey, who were empowered to take the advice of counsel in San Francisco on the subject. Having consulted the law firm of Crittenden & Ingo, these gentlemen gave their opinion—presumably in favor of the city. On September 13th, it was moved by Alderman Marier that the ordinance providing for the maintenance and construction of a wharf be taken up, and carried. This was done by the following vote : Ayes—Aldermen Eames, Gallagher, Marier and Kelsey. Noes—Alderman Josselyn.

        On October 7, 1854, a communication from the Attorney-General, having reference to the water front, was presented by Alderman Josselyn, and ordered placed on file, but this important document has also vanished from the records, as has the resolution proposed by Mr. Marier, and passed on the 21st of the same month, whereby the marshal was instructed to erase from the assessment books the impost on the water front.  What pressure or suasion was brought to bear upon the council to induce them to pass the ordinance to repeal "An Ordinance to provide for the construction and maintenance of a wharf in the City of Oakland," which had been passed finally on the previous 15th of September, will probably never be known, but the fact is that the mayor won the day and gave his approval to it (it was passed December 9, 1854) on December 11, 1854.

        The special ferry committee made the following report: The ordinance which it is proposed to repeal was passed by the board of trustees of the town of Oakland, on March 5, 1853. It authorizes and directs the conveyance to E. R. Carpentier, his heirs, agents, or assigns of exclusive ferry privileges "between Oakland and San Francisco, or between the said town or any other place," for the term of twenty years, together with all the ferry rights, privileges and franchises which now are or may hereafter be held or owned by the town of Oakland."

        The ordinance directing this conveyance to Mr. Carpentier is but one of similar ordinances by which the town of Oakland has been unlawfully despoiled of her property, divested of her rights, and retarded in her prosperity. Prior to the passage of this ordinance, the trustees of the town granted to the brother of said Carpentier all the water front of the town extending to ship channel in the Bay of San Francisco, together with the exclusive right of constructing wharves and collecting wharfage (without limit or restriction), for thirty-seven years. A mere nominal percentage, without guarantee or security to the town, and amounting, in the course of two or three years to about $100, is the only consideration (with the exception of a small frame schoolhouse for which no deed can be found) proffered to the town for the aforesaid grants. As trifling as this consideration is, the grantee in the latter case applied to the board of trustees, and obtained the passage of an ordinance by which the town assumes all taxes which might be levied upon any wharf or wharves which he had constructed or might hereafter construct. This would render the city liable for the state and county taxes upon said wharves, which, at a moderate estimate, would amount in one year to more than the aforesaid has amounted to in two years; thus compelling the city to pay a premium to the grantees for taking all the property, ferry rights, privileges and franchises which the town of Oakland had, present or prospective, to give away. Under this arrangement the people of the town are plundered of their property, and then taxed to pay the taxes of those who have plundered them, and to support a monopoly which adds its exactions to the measure of iniquity thus imposed upon the community.

        As matters now stand, two individuals claim exclusive and entire control over the only outlet through which the farmer can gain access to the market, or the merchant transport his goods. If the grants to these individuals be valid, they can charge whatever rates of freight and wharfage they may choose to exact, and if the article transported should be thus taxed to double its value, the owner thereof could have no redress.  A monopoly which so completely subjects a whole community to the caprice of an individual, cannot stand the test of the law. In the case before us, your committee ,would suggest that the ordinance which it is proposed to repeal is of itself null and void. To suppose that the town of Oakland has any right to establish such a ferry across the Bay of San Francisco, is about equivalent to supposing that she has a right to grant exclusive ferry privileges to the Sandwich Islands. But, however absurd the ordinance in question may be, the impression prevails to some extent that so long as said ordinance stands unrepealed, so long does the city of Oakland indorse the nefarious contract of a board of trustees who administered the town government for the especial benefit of two or three individuals, and to the detriment of the community at large. That this impression may be removed, and that any mere shadow of right on which the present ferry monopoly pretends to exist may be dissipated, and that the public may know that the door is open for unlimited competition, your committee report back the ordinance and recommend its passage, with an amendment declaring any contract made under or by virtue of said ordinance null and void.

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 which was passed the 'Ordinance f or 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 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 representations 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 amendments as passed, and did not know until some time afterwards that it was incorrect 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 according 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 representations 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.

        "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 proposition 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 discussion 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 honorable 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 ownership 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 property. 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."

        In 1860 the council received a communication from Irving & Thompson, informing 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 delegation in the Legislature, ratifying and confirming said ordinance and the deed executed 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 similar enterprise, and thereby securing 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; therefore, 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 satisfaction 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 were made with him to draw up a brief and conduct the case of the city versus Carpentier 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 commenced in the third district court in Oakland, and, on application for a change of venue was transferred to the fourth district court in San Francisco. A demurrer 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 1. 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 property and franchises recovered by the city; but to receive no compensation for his services in case nothing shall be recovered. Witnesseth, That for the consideration 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 necessary court costs and disbursements incurred in said litigation.

        On March 27,1868, the "Water Front Company," whose first board of trustees consisted of E. R. Carpentier, Horace W. Carpentier, Leland Stanford, John B. Felton, Samuel Merritt, and Lloyd Tevis was incorporated. The articles of incorporation of this company we now append: This certifies that we, 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 franchises. 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 ordinance 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 sufficient deeds of conveyance, all the property and franchises mentioned and described 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 Railroad Company, and other parties, bearing even date herewith, with the exceptions in the said agreement specified. But nothing herein contained shall be deemed to affect any rights of the San Francisco and Oakland Railroad Company, derived under an ordinance of the city of Oakland, passed the l0th day of November, 1861. In pursuance of the foregoing ordinance Horace W. Carpentier executed and delivered to the Water Front Company the following deed :

        This indenture, made the 31st day of March, 1868, between Horace W. Carpentier, 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 consideration 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 conveys to the said party of the second part, its successors and assigns, the following 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, however, so much of the said water front as lies between the middle of Washington 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, according 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 concerned 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 determined 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 millionaires. 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

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 l0th, 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 a 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 2½ 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 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 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 thirty-seven 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."

Transcribed by Kathy Sedler.