Mintzer

This is a bill to enjoin the defendant from further proceeding to dredge out and deepen a certain waterway or channel traversing lands alleged to belong to the plaintiffs’ testator, and from carrying away the earth or soil therefrom, as constituting a willful and malicious trespass and waste, and to recover damages for the waste and injury already done.

The answer of the defendant denies any ownership or right of any kind in the plaintiffs in the land involved, and sets up that the channel in question is “known and designated as the south channel of the San Pablo Canal, all within the city limits of the city of Richmond, county of Contra Costa, state of California, and that said channel is, and has been for many years last past, a navigable waterway, with a public terminus, connecting the said city of Richmond with the San Pablo Bay and the Bay of San Francisco,” and that “for many years last *555 past vessels engaged in commerce have navigated and traversed said channel”; that all the acts done and committed by defendant, of which complaint is made, have been had and done under and in pursuance of a contract theretofore entered into between defendant and said city of Richmond,…