Kimball

This action was brought to obtain an injunction restraining defendants from landing passengers and freight at plaintiff’s wharf at Monterey.

In 1868 the legislature granted to the city of Monterey all the water front included within the corporate limits for the use and benefit of the city, with the condition that it should not be subject to execution, but might be leased for a period not to exceed ten years by the city trustees, “in such manner and upon such terms as may by them be deemed most advantageous.”

Monterey contains about two thousand inhabitants, and has railroad connections as well-as its advantages as a seaport. In 1880 it leased to the plaintiff a small portion of its water front, upon which was an old wharf which, however, had become so dilapidated as to be unsafe. The indenture of lease contained the following: “In consideration whereof the said parties of the second part do hereby agree to erect a wharf on the said premises, and to keep the same in good repair during the term of this lease. Said parties of the second part shall be entitled to collect wharfage on goods and merchandise passing over said wharf at the rate of fifty cents per ton, and such rates of…