APPEAL from Fourth Judicial District, San Francisco County.

This suit was brought to have the defendants enjoined perpetually from collecting tolls, wharfage, anchorage, dockage or other duty out of or connected with the Commercial street wharf and waterfront in the city of San Francisco, and to have it decreed that the plaintiffs have the right thereto and the possession, also to have a receiver appointed; also for an accounting and for damages. The facts were these: On the 3d of May, 1849, the legislative assembly of the district of San Francisco passed an act entitled, “An act to incorporate the Central Wharf Joint Stock Company of San Francisco, Cal.,” assuming the power to “ordain, constitute and appoint” all such persons as were then or thereafter might become members, etc., to be a body corporate and politic, in fact and in name, “for the purpose of building and keeping in repair a wharf, to run from some point in Montgomery street, between Clay and Sacramento streets, to the ship' channel in front of said town.” By section 10 of the act there was demised to the company, its successors and assigns, during the continuance of the act, “all that portion of the beach and water lots” included within those streets and the ship channel, provided that the lots should be appropriated to no other purpose than “basins for the reception of vessels,” etc. On the 5th of the same month Leavenworth, alcalde, granted to Rodman M. Price, for the benefit of the company, the entire block of water lots “bounded by Clay street, Battery street, Sacramento and Front streets containing one hundred varas square,” which block Price thereupon conveyed to the company during the same month. The next winter, in response to a petition by Price to the “town council,” a committee of that body recommended that the ayuntamiento confirm the grant made, as above, by the legislative assembly. This was done as recommended. Under these ordinances, and without any other authority, the company constructed their wharves, and subsequently, as the city advanced, indifferent to the proviso, filled up many of the water lots and built warehouses on them, besides pushing wharves at angles that took them beyond the limits of the grant.

It was contended by the plaintiff, among other things, that the pretended act of incorporation was a nullity and gave no rights to the defendants — that the confirmation by the ayuntamiento gave no validity to the pretended charter, but was itself wholly without authority and void. The court below so found and gave judgment accordingly.