§ 2892. APPLICATION FOR LEAVE TO ERECT, AND NOTICE. Every applicant for authority to erect and take tolls on a public ferry must publish a notice in at least one newspaper in each county in which the ferry is or touches, or if there is no newspaper published therein, then in one published in an adjoining county, and by posting three notices in three public places in the township for four successive weeks, specifying the location and the time and place when and where the application will be made. After notice is given application must be made in writing, under oath, to the board of supervisors of the proper county, the landings of the proposed ferry must be described, and the names of the owners thereof given, if known; and if the applicant is not the owner of the land, that notice of the application has been served on the owner thereof at least ten days prior to the application. History: Enacted March 12, 1872, founded upon §§ 2, 8, 12 Act April 28, 1855, Stats. 1855, pp. 183, 184, 185. As to provisions regarding toll-ferries generally, see ante §§ 2843-2857 and notes. § 2893. DUTY OF THE BOARD OF SUPERVISORS. At the hearing, proof of giving the notice, as required by the preceding section, must be made, and any person may appear and contest the application. If the board finds that the ferry is either a public necessity or convenience, and that the applicant is a suitable person, and by reason of ownership of the landing or failure of the owner thereof to apply is entitled thereto, authority to erect and take tolls on the ferry may be granted to him for the term of twenty years. History: Enacted March 12, 1872, founded upon § 2 Act April 28, 1855 (Stats. 1855, p. 183), as amended by § 1 Act April 4, 1870, Stats. 1869-70, pp. 887-888. 1. Applied, cited, construed, referred to. 2. Finding of board conclusive. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Pool vs. Simmons, 134 Cal. 621, 625, 66 Pac. Rep. 872 (construed). As to condemning land for ferry purposes, see KERR'S CYC. CODE CIV. PROC. § 1238 subd. 4 and note. As to general rights of state over property, see ante §§ 40-44 and notes. As to right of eminent domain, see Const. 1879 art. XII 8; HENNING'S GENERAL LAWS p. xcv. As to state's right to eminent domain to all frontages on navigable waters, see Const. 1879 art. XV §1; HENNING'S GENERAL LAWS p. cl. As to sale of franchise to highest bidder, see ante § 2843 and note par. 12. As to taking private property for public use, and as to compensation therefor, see Const. 1879 art. I 914; HENNING'S GENERAL LAWS p. lxvi. 2. FINDING BY BOARD AFTER DUE HEARING, that proposed ferry is public necessity, is conclusive.-Pool vs. Simmons, 134 Cal. 621, 625, 66 Pac. Rep. 872. $2894. POWERS OF THE BOARD OF SUPERVISORS. The board of supervisors may make all needful rules and regulations for the government of ferries and ferry-keepers, prescribing: 1. How many boats must be kept, their character, and how propelled; 2. The number of hands, boatmen, or ferrymen to be employed, and rules for their government; 3. How many trips to be made daily; 4. When and under what circumstances to make trips in the night-time; 5. Who may be ferried free of toll; 6. In what cases of danger or peril not to cross; 7. Penalties for violation of regulations; 8. In case of steamboats, the rate of speed; 9. The method of and preference in loading and crossing; and, 10. How and by whom action must be brought to recover penalties. History: Enacted March 12, 1872, founded upon § 2 Act April 28, 1855 (Stats. 1855, p. 183), as amended by § 1 Act April 4, 1870, Stats. 1869-70, pp. 887-888. $2895. PENALTIES, HOW DISPOSED OF. Penalties recovered under this article must be paid to the county treasurer for the use of the general road fund of the county. History: Enacted March 12, 1872. $2906. BOARD OF SUPERVISORS TO AUTHORIZE CONSTRUCTION. The boards of supervisors of every county in this state may grant authority to any person or corporation to construct a wharf, chute, or pier, on any lands bordering on any navigable bay, lake, inlet, creek, slough, or arm of the sea, situate in or bounding their counties respectively, with a license to take tolls. for the use of the same for the term of twenty years. History: Enacted March 12, 1872, founded upon §1 Act April 8, 1858 (Stats. 1858, p. 120), as amended by Act March 31, 1870, Stats. 1869-70, p. 526. 1. Common-law rule-Right of riparian owner. 2. Lease of land including wharfage-Effect of. 3. Obstructing free access-Nuisance. 4. Sole wharf-Effect of leasing. 5. State harbor commissioners - Injunction against. 6. Trespass upon rights of state-Third party cannot complain. 7. Wharf erected on state soil belongs to grant authority to construct wharves, etc., see post § 2920 et seq. 1. COMMON-LAW RULE.-At common law riparian proprietor of navigable river had no right to build wharf out against his own land. Dana vs. Jackson St. W. Co., 31 Cal. 118, 120, 89 Am. Dec. 164. See Coburn vs. Ames, 52 Cal. 385, 397, 28 Am. Rep. 634. 2. LEASE OF LAND INCLUDING A WHARF to steamship company operated as grant to it of an estate in land, not as mere franchise, and right to collect wharfage and dockage, considered as franchise, was an unimportant part of consideration of lease.-Pacific Coast S. S. Co. vs. Kimball, 114 Cal. 414, 416-417, 46 Pac. Rep. 275. §§ 2907-2909 (684) PETITION AS TO LANDS-NOTICE TO NON-RESIDENTS. 3. OBSTRUCTING FREE ACCESS of riparian owner by reason of erection of wharf will be enjoined as nuisance.-Shirley vs. Bishop, 67 Cal. 543, 546, 8 Pac. Rep. 82. 4. SOLE WHARF EXISTING IN HARBOR leased to steamship company by city is valid where wharf was rebuilt by lessee from old dilapidated wharf, and city did not obligate itself not to build or to permit others to build wharves, and no agreement that wharf leased should be only wharf.Pacific Coast S. S. Co. vs. Kimball, 114 Cal. 414, 416-417, 46 Pac. Rep. 275. 5. STATE HARBOR COMMISSIONERS may be enjoined from erecting wharf upon water lot which is property of private per [Pt. III. § 2907. APPLICATION, WHAT TO CONTAIN AND HOW MADE. Application therefor must be made by publishing notice as required in section twenty-eight hundred and ninety-two, and filing a petition in writing, containing: 1. The name and residence of the applicant; and if a corporation a certified copy of the articles of incorporation; 2. A map of the waters, and the name and location thereof, and of the adjoining lands; 3. A plan of the wharf, chute, or pier proposed to be constructed, and of the land within three hundred feet thereof; 4. The names of the owners of the lands, and the quantity thereof sought to be used, and whether the right to use the same is or is to be acquired by the applicant; 5. The distance it is proposed to extend the wharf, chute, or pier into the waters; 6. The estimated cost of the construction of the wharf, chute, or pier; and, 7. The time when the application will be made. History: Enacted March 12, 1872, founded upon § 2 Act April 8, 1858, § 2908. PETITION RELATIVE TO LANDS NOT OWNED BY APPLICANT. When any lands are sought to be appropriated and used for a wharf, chute, or pier, of which the applicant is not the owner, or the right of way and use thereof has not been obtained by agreement, these facts and the particular description of such land must be set forth in the petition of the applicant, and a copy of the notice of application must be served on the owner thereof by the sheriff of the county, whose official return is conclusive evidence of service, at least ten days prior to the appointed day set for the hearing of the same. History: Enacted March 12, 1872, founded upon § 4 Act April 8, 1858 (Stats. 1858, p. 120), as amended by § 4 Act March 31, 1870, Stats. 1869-70, pp. 526-527. $2909. NOTICE SERVED ON NON-RESIDENTS. When the owner of the land is a non-resident of the county, it is service of notice for the sheriff to leave a copy with the occupant or agent of the owner; if none, then to place a copy in the post-office addressed to the owner thirty days prior to the day set for the hearing. If the owner is a minor, insane, idiot, or decedent, notice must be served on the guardian, administrator, or other legal representative of such person. History: Enacted March 12, 1872, founded upon § 4 Act March 31, 1870, $2910. BOARD TO HEAR PROOF, AND MAY GRANT AUTHORITY. On the day named in the notice, or to which the hearing is adjourned, the board of supervisors must hear proof of publication and service of notice; if satisfactory, the board must hear the allegations of the petition and any objections to the granting of the application, and proofs in support of each. If from the proofs it appear that the public good or convenience will be promoted thereby, the board of supervisors may grant to the applicant the right to erect or construct a wharf, chute, or pier as prayed for, and to take tolls for the use of the same for the term of twenty years. History: Enacted March 12, 1872, founded upon § 4 Act March 31, 1870, § 2911. OVERFLOWED OR TIDE LANDS GRANTED. The grant of authority made by the board of supervisors, as provided in the preceding section, conveys to the grantee or applicant the right of way and all necessary use for the purposes of the wharf, chute, or pier, of any of the overflowed, submerged, or tide lands belonging to the state, particularly describing the quantity thereof in the order, as also the right of way over any swamp, overflowed, marsh, or tide lands lying between the wharf, chute, or pier and high or dry land, fifty feet in width, for twenty years. History: Enacted March 12, 1872, founded upon § 4 Act March 31, 1870, As to overflowed or tide-lands in general, see post § 3440 et seq. § 2912. ONE HUNDRED AND FIFTY FEET ON EACH SIDE OF WHARF, ETC. The grant of authority herein provided for carries with it the right to have unencumbered and unobstructed the land and water on each side of the wharf, chute, or pier, from high-water mark to navigable water, a distance of one hundred and fifty feet, for the convenience of landing, loading, and unloading vessels, but for no other purpose. History: Enacted March 12, 1872, founded upon § 4 Act March 31, 1870, § 2913. HOW TO OBTAIN USE OF LANDS. Authority to construct a wharf, chute, or pier, being granted, the grantee or applicant may procure from the owner the right of way and other necessary incidental use for the wharf, chute, or pier, of any of his lands, by proceedings had under title seven, part three, of the Code of Civil Procedure. Until such use of the lands held adversely is obtained by agreement, or by the proceedings herein before mentioned, there is no authority to construct a wharf, chute, or pier, or to take tolls thereon. History: Enacted March 12, 1872. to, Applied, cited, construed, referred etc., in: Coburn vs. Ames, 57 Cal. 201, 204 (referred to). As to condemning lands for wharves, see KERR'S CYC, CODE CIV. PROC. § 1238 subd. 4 and note. As to general rights of state over property, see ante §§ 40-44 and notes. As to how private property may be taken for public use, and as to compensation for same, see Const. 1879 art. I 14; HENNING'S GENERAL LAWS p. lxvi. }} 2914-2917 (686) DIMENSIONS-FRANCHISE-BATE OF TOLLS. As to right of eminent domain, see Const. 1879 art. XII § 8; HENNING'S GENERAL LAWS p. XCV. As to state's right to eminent domain [Pt. III. over frontages on navigable waters, see Const. 1879 art. XV §1; HENNING'S GENERAL LAWS p. ci § 2914. DIMENSIONS OF WHARVES, ETC. The wharf, chute, or pier must not be of a greater width than seventy-five feet, and may extend to navigable water; provided, that a wharf constructed upon any of the navigable rivers, straits, sloughs, and inlets in this state may extend along the shores for a distance not exceeding one thousand feet, but in no case shall any wharf, chute, or pier extend into the water so far as to obstruct the free navigation of the water on which the same is situated; provided, this act shall not apply to the water-fronts of incorporated cities and towns. History: Enacted March 12, 1872, founded upon § 4 Act March 31, 1870, Stats. 1869-70, pp. 526-527; amended April 16, 1880, Code Amdts. 1880 (Pol. pt.), p. 66. § 2915. FRANCHISE, WHAT CONSTITUTES. The orders granting authority, and agreements, contracts, deeds, and decrees of courts granting the right of way and other use of lands, must be filed and recorded in the office of the recorder of the county where the wharf, chute, or pier is situate, and constitutes the franchise of the applicant. The fees of the recorder, as also the fees of the clerk, sheriff, and other officers, for services rendered, must be paid by the applicant. History: Enacted March 12, 1872, founded upon § 5 Act April 8, 1858, § 2916. BOARD OF SUPERVISORS TO FIX RATE OF TOLLS, ETC. The board of supervisors must fix the rate of tolls or wharfage for the use of the wharf, chute, or pier, annually, which must not produce an income of less than fifteen per cent per annum, nor more than twenty-five per cent per annum on the fair cash value of the wharf, chute, or pier, and on the cost of repair and maintenance thereof, exclusive of the amount paid for license imposed by the next section; such value and cost of repair and maintenance to be fixed by the board of supervisors when levying the rates of tolls or wharfage, by hearing evidence and examining the assessment-rolls of the county. fixed, the rates must be furnished the owner, and a printed or written copy thereof conspicuously posted on the wharf, chute, or pier. History: Enacted March 12, 1872, founded upon and modifying § 6 Act April 8, 1858, Stats. 1858, p. 121; amended March 24, 1876, Code Amdts. 1875-6, pp. 52-53. § 2917. LICENSE, AND THE TAX FOR. When the wharf, chute, or pier is completed, and the tolls or wharfage fixed, the owner is entitled to a license to take the tolls thereon for the term of one year, to be issued by the county auditor on the payment of such license-tax as the board of supervisors may fix, which, except that for the first year, must not be more than ten per cent of the gross receipts for tolls or wharfage for the previous year, to be paid to the county treasury for general road purposes. History: Enacted March 12, 1872. 1. Compensation for use of wharf. 1. Compensation for use of wharf above line of low water may be insisted on by |