Appeal from the Fourth Judicial District.

The complaint alleges that the plaintiff is the owner of the fifty vara lot, known on the Map of San Erancisco as No. 1492; that the defendant is obstructing the navigation to the lot, by mooring and anchoring store-ships, and making embankments in front of it: and prays for an injunction and an abatement of the nuisance. The answer denies that'Lot No. 1492 lies immediately on the shore of the Bay of [81] San Francisco, and * alleges that, on the contrary, there are two streets and an entire block, laid out on the official map of the City of San Francisco, between Lot No. 1492 and the navigable waters of the Bay; and that plaintiff knew they were so laid out before he became possessor of the lot; that defendant is owner of the water lot upon which the store-ship has been anchored and the embankments madey that he holds under an Alcalde grant, and the Act of the Legislature of this State, passed March 26th, 1851; that this lot is laid out on the official map of said city, and is within its water front; and denies that the filling up and improving said lot is a núisance or obstruction to the free and open navigation and use of said bay and harbor of San Francisco, for all and every requirement of commerce and navigation, or any infringement or violation of the rights of the public, or of the plaintiff; but on the contrary, is a public benefit, and will, by extending the filling up into navigable water, greatly facilitate the loading and unloading of ships and vessels; that the space covered by this lot is not available for navigation, by reason of the slight depth of water, which at low tide leaves a great portion of this lot bare. The defendant also alleged that he had filled up and occupied the lot with the consent of plaintiff’s grantor, and that plaintiff had bought with notice.

The cause was tried before a jury, and the following facts were proved: That since the 10th of March, 1852, the plaintiff has owned and been in possession of Lot No. 1492, fifty varas square, bounded on the south by Union street, and on the east by Battery street, as laid down on the official map of the City of San Francisco, and that since the 13th day of June, 1849, the defendant has claimed to own, under the grant and conveyance hereinafter mentioned, the lot one hundred varas square, bounded south by Union street, west by Battery street, east by Front street, and north by Filbert street, as laid down on said official map.

The defendant offered in evidence a certified copy from the record-of the Becorder’s office of San Francisco County, of a grant dated June 12th, 1847, made by George Hyde, Alcalde of San Francisco, to William Hood, of the said Lot No. 1492, * and also a certified copy of a [82] deed of conveyance, dated March 10th, 1852, from William Hood to the plaintiff, of said Lot No. 1492, describing it as bounded by Battery street on the east, and Union street on the south, as laid down on the city map aforesaid, to the introduction of which the plaintiff objected; but the Court overruled, and these papers were given in evidence. To the opinion of the Court, overruling the exception, the plaintiff excepted. It was proved that, on the 26th day of March, 1848, the hundred vara lot bounded by Union, Front, Filbert and Battery streets, was granted in due form by an Alcalde of San Francisco, to Jacob D. Hoppe, and conveyed by him to the defendant, who has ever since had possession of the lot, by having several store-ships permanently moored on it and used for the storing of goods; by reclaiming a portion of it; by filling in, and by building, some two years before the suit, a blacksmith shop on it, and that this blacksmith shop has been occupied since it was built, by those holding under the defendant. The grant to Jacob D, Hoppe was duly confirmed by the Ayuntamiento of San Francisco, and duly recorded according to the terms of the Act of the Legislature of California, of the 26th of March, 1851, hereinafter mentioned, before the 3d day of April, 1850, in a book of records remaining in the office of the Becorder of San Francisco County, at the time of the passage of the Act of March 26th, 1851, and that the grant to William Hood was confirmed and recorded in like manner. That the plaintiff erected on his lot, and upon the line of Battery street, a valuable block of brick warehouses, for the storage of merchandise, which was commenced soon after the 11th ,of March, 1852, the entrances to which are on Battery street; that the original shore of the Bay of San Francisco, at that line, was about sixty feet west of the west line of Battery street, and before commencing his building, the plaintiff filled in that part of his lot covered with water, and a portion of the width of Battery street adjoining it; that there was a sufficient depth of water, in front of a part of his lot, to enable the plaintiff to land his building materials from boats and lighters, on the embankment in Battery street, opposite his buildings, and he did so land some of his materials without the expense of [83] wharf-* age or cartage; that William Hood, in 1850, and the defendant, jointly contracted with a third person to build a pier or wharf, twenty feet wide, across Battery street, from the northern part of Lot 1492 to a rock visible at high water, within the space bounded by Battery street, Union, Front and Filbert streets, which work was done, the earth and rock of which it was built being taken from Lot 1492. The plaintiff objected to the introduction of the evidence on this point, and excepted to the opinion of the Court allowing it. After this, the defendant continued to fill his lot with earth taken from Lot 1492, and evidence was given by the plaintiff that Hood saw this filling going on and made no objection to it. The plaintiff objected to this evidence, and excepted to the opinion of the Court admitting it. It was proved that soon after the plaintiff commenced his building, the defendant, carried out his embankment, made by filling in, up to or near one of his store-ships, permanently moored on his lot, and directly opposite the plaintiff’s lot, so as to entirely prevent the plaintiff from landing his building materials in Battery street, in front of his building, and so as to deprive the plaintiff of a water front to his lot. In consequence of the said store-ship being permanently moored there, and of the defendant’s embankment being continued to the same, the plaintiff was obliged to land the remainder of his building materials on wharves, at a distance, and at an additional expense for cartage and wharfage of 8500, and the value of his lot was depreciated thereby at least ten per cent. The first filling upon defendant’s lot was upon the ledge of rocks referred to, which is just outside of Battery street, that is to the east of the eastern line of Battery street, and is about twenty-five feet long, a portion of the ledge being visible at high water, and six feet out of water at low tide; the original shore was bold and abrupt, and the water line crossed the Lot 1492 about sixty feet west of the western line of Battery street, and before the filling referred to was clone, there was deep water between this ledge of rock and the shore.

The defendant gave in evidence an Act of the Legislature of the State of California, passed March 26th, 1851, entitled an Act to provide for the Disposition of Certain Property of the * State of California, and also an- [84] other Act of the same Legislature, passed. May 1st, 1851, entitled an Act in relation to the City of San Eran-, cisco. The city map was given in evidence, and it was admitted that it was the map mentioned in the said Act of March 26th, 1851, and is a correct map. Another map was also given in evidence, and was admitted to be a correct representation of the premises. The plaintiff offered to prove the following facts, the defendant waiving .the necessity of calling the witnesses and examining them: That the space between Battery, Front, Union and Filbert streets is a part of the navigable waters of the Bay, over which vessels of the largest size are accustomed to pass, and where they are accustomed to anchor; that it is a secure and sheltered part of the Bay, where vessels can lie in safety; that prior to the filling in by the defendant, vessels could have come to the line of Battery street, and could have discharged their cargoes there; that the filling in of this space is a nuisance to the plaintiff, because it is a permanent obstruction, and because the obstruction at this point will have the effect to alter the present direction of the currents in the Bay, and to cause the water to become more shoal along the whole city front.

The defendant objected to the introduction of any testimony to establish these facts, and the objection was sustained by the Court. The plaintiff excepted.

The evidence1 being closed, the plaintiff prayed the Court to give the jury the following instructions:

1. Every obstruction of navigable water is presumed to be a nuisance, and any person whose property is injuriously affected by it, may recover damages therefor. This presumption can only be rebutted by showing a right to make the obstruction, derived from the sovereign power.

2. The Act of the Legislature of the State of California, entitled an Act to . Provide for the Disposition of Certain Property of the State of California, passed March 26th, 1851, did not give to the City of San Francisco, or. the grantees specified in the second section, any right to create any obstruction whatever to the navigation of the Bay, nor to improve, as the city or these grantees might think proper, but on the contrary reserved to the [85] Legislature the power to direct and control, in * regard to its improvement. This Act did nothing more than. give an interest in the soil, subject to the public right of navigation.

8. This Act is not to be construed as a surrender by the State of its right to regulate the construction of wharves or other improvements so that they shall not interfere with the shipping and commercial interests of the bay and harbor of San Francisco.

4. The riparian proprietor alone, with the assent of the Legislature, has the exclusive right of extending embankments into the water, and he cannot be cut off from the water by any extraneous additions to his upland. If the land is gradually extended into the sea by natural or artificial cause, he is entitled to the increase so made. This is a right of which the State cannot either directly or indirectly divest him, except by the constitutional exercise of the power to appropriate private property for public purposes, and any Act of the State, short of such an appropriation, which attempts to transfer the right to another without the consent of the riparian owner, is inoperative and void.

5. The State cannot make, nor authorize to be made, any obstruction in navigable waters in front of any riparian proprietor which will prevent his having free access by water to his land, unless it be done in the exercise of its power to take private property for public use, and compensation be made therefor.

6. The soil under the navigable waters of the Bay of San Francisco is incapable of private appropriation, of such a character as to interfere with the public right of navigation, nor can an Act of the State Legislature permit such appropriation, nor render it legal.

7. All the navigable waters within the State of California are common highways, and are free and open to the inhabitants of the State and the citizens of the United States; and any Act of the State Legislature, which authorizes an obstruction of, or encroachment upon, any of the navigable waters of the State, is void.

8. Whether any stream is or is not navigable, is a question of fact. The Legislature cannot determine it.

* 9. The title to the soil covered by navigable [86] water is not in the State of California. The State Legislature has no power permanently to close up the entrance to the Bay of San Francisco, nor under color of improvements, to obstruct materially the free navigation of the Bay, nor to authorize such acts to be done; and where any appropriation of the navigable waters of the Bay is made under authority of the State, the question whether such appropriation is an improvement or a nuisance, is a question of fact. If it is of such a character as to be productive of extensive and permanent injury to the Bay, and to interfere materially with its free navigation, it is a nuisance, notwithstanding it is made under authority given by the State.

The Court gave the first of said instructions, and refused to give any of the others, and to the ruling of the Court, in refusing to give them, the plaintiff excepted.

The Court then proceeded to charge the jury as follows, to wit:

That the Act of the Legislature of the State of California, entitled an Act to Provide for the Disposition of. Certain Property of the State of California, passed March 26th, 1851, gave to all persons then holding any lot within the limits therein specified, under a grant which had been made by any Alcalde of the City of San Francisco, and confirmed by the Ayuntamiento, or Town or City Council, and which was registered in a book of record, then in the office of the Becorder of the County of San Francisco, a full and complete right of property; and if the jury believe from the evidence, that the lot claimed by the defendants is within the limits specified, and is held by the defendant under a grant so made, confirmed and registered, the defendant has a right to reclaim it by filling in, and the plaintiff has no right of action against him for so doing. To this charge of the Court plaintiff excepted.

The cause was then submitted to the jury upon the evidence, under the instruction given by the Court, and the jury found a verdict for the defendant, and judgment was entered accordingly.