Keeping Islais Creek Navigable
Historical Essay
by Stephanie T. Hoppe
Stephanie T. Hoppe is a former staff counsel to the California Coastal Commission and a great-great-granddaughter of Peter Seculovich.
Part 3 of Peter T. Seculovich in San Francisco
Peter Seculovich and Jennie in Golden Gate Park, c. 1905.
With the Pennsylvania Avenue threat averted, Seculovich turned to the obstructions already in the creek. Perhaps he had discovered he had a taste for organizing and advocating, or perhaps, in his mind, the windswept salt marsh bordering Islais Creek was overlain by memories of the Adriatic harbors of Dubrovnik, Trieste and Venice bustling with commerce as they had for centuries. At a meeting in January 1881, the property owners association approved his motion to appoint himself a committee of one “to go to Sacramento to urge upon the Legislature the necessity of enacting a Law requiring the removal of all obstructions across the creek” and authorized funds to pay his expenses (Chronicle, 1/10/1881, p. 3).
Thus, in the state Senate the following month, “The everlasting and time-consuming Islais creek matter came up again.” One legislator reported that his “committee had visited the creek at high water time, and could find no water; they could see no reason why the bill should be passed, and he moved that it be indefinitely postponed.” Members of the San Francisco delegation repeatedly switched sides or refused to vote, and after initially passing the bill in question, the Senate as a whole voted to reconsider it and finally defeated it altogether (Examiner, 2/3 and 11/1881).
At a subsequent meeting of the property owners association at the Franconia House on the San Bruno road, Seculovich dwelled on what he considered the foundation for their advocacy, Section 3 of the Act of Congress admitting California to the Union: “All the navigable waters within the said state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefore.” He believed this provision forbade the obstruction of any navigable stream, and he urged that “this main artery of commerce so indispensable for the development of manufactures be not forever closed and that the injustice to this part of the city by the building of the Long Bridge be remedied.” The role of Islais Creek in carrying away waste also came up, an issue that would return with increased salience as the city expanded (Examiner, 2/14/1881).
We have seen Seculovich as a tireless, even obsessive, and sometimes pugnacious and divisive advocate for his views. As he became a fixture in public meetings and government hearings, newspaper reporters found him a reliable source of colorful copy, as in this account of a property owners association meeting later in 1881:
“Carried Unanimously”
The Solid Man of Islais Creek to the Front
Peter T. Seculovich had a meeting yesterday afternoon in Mr. Senil’s house on the San Bruno road. Mr. Seculovich always advocated opening Islais creek for navigation as far up as St. Mary’s College. His is a rival organization to the Islais creek men who met on the preceding Sunday. Mr. Seculovich had five other property-owners near Islais creek at the meeting, but one of them left soon, because he “had company at home,” and the others were decidedly neutral. The meeting did not suffer. Mr. Seculovich was an “enthusiastic assembly” in himself. He introduced and read a long manuscript written by himself, giving a detailed account of what he had done and what the lawyers had not done in the case to declare the Fourth-street drawbridge a nuisance. Mr. Seculovich convinced the assembly by his argument and the production of an infinite number of legal documents that the report should be adopted and placed on file.
“I move the report be accepted, Mr. Sicklevitch,” put in property-holder No. 1.
“Seculo—Seculovich! sir! Carried unanimously,” added Mr. Seculovich in his blandest manner, after having put the question to a vote.
Mr. Seculovich then read a resolution prepared by himself, which, after eulogizing Mr. Seculovich, authorized and empowered him to attend to the entire management of the case until the creek was open and dredged for navigation, and in conclusion, deputized Mr. Seculovich to collect sufficient to reimburse him for expenses already incurred and to be incurred.
“I move the resolution be carried, Mr. Secularwitch,” moved property-holder No, 2.
“Seculo—Seculovich! sir! Carried unanimously,” responded Mr. Seculovich in his sweetest tone.
Mr. Seculovich then read another resolution written by himself, deputizing Mr. Seculovich a committee of one to urge the Harbor Commissioners for ready means of access to Franconia landing. As it was now, they had to pay toll in going round the bridge upon Kentucky street, and on the other hand the route by the San Bruno road was only at the suffrage and pleasure of a private citizen.
“I move the resolution be adopted, Mr. Suckcollarwitch,” said No. 3.
“Carried unanimously,” said Mr. Seculovich.
Still another resolution presented by Mr. Seculovich, and constructed by himself, was likewise “carried unanimously.”
“We can now have a little argument on the whole question,” suggested Mr. Seculovich, sweetly, when his stock of Seculovichian resolutions had become exhausted.
When the reporter left the meeting the “we” had had no chance of arguing yet, and Mr. Seculovich was still “as fresh as a daisy.” (Chronicle, 11/28/1881, p. 3)
According to the Examiner’s more sober account of the same meeting, the association authorized Seculovich to “continue the management of our affairs in conjunction with the attorney for the people, in the case against the Potrero and Bay View Railroad Company, involving the reopening for navigation purposes of Islais Creek” and to represent to the State Harbor Commissioners that “by the closing of Islais Creek the residents of San Bruno road and of South San Francisco have been greatly inconvenienced, and forced to pass over private property to get to the city” (Examiner, 11/29/1881). We should note that despite the meager attendance at the meeting at Mr. Senil’s house, Seculovich often carried considerable numbers with him, including at times local, state and federal officials.
We might also note the mention of a rival organization. This referred to the acid manufacturer from Franconia Landing, John Reynolds, who might not have been present at the meeting where Seculovich replaced him as president of the Islais Creek Property Owners Association and might not have recognized the change. At this rival meeting, held at Reynolds’s acid works on the San Bruno road, Reynolds
depicted a brilliant future for Franconia Landing. With one wave of his right arm he pointed at random at the vast boggy expanse beyond him, and razed Bernal Heights in his speech to the level of the prospective Islais-creek embankment. He saw a fleet of 200 light-bottomed vessels dipping and raising their bows with the swell of the creek’s waters, and dotted San Bruno road with a perfect wilderness of saloons, forges, groceries, hotels and warehouses. … “Wake up, Islais creek men,” he said in conclusion, “the rest of the town is up and live in their interests. We are asleep. I say with Colonel Mulberry Sellers, ‘There’s millions in it.’” The assembly was captivated by the plausibility of the speaker’s remarks, and vowed to awaken the Islais-creek men to their interests, and promised Mr. Hassett a handsome fee. (Chronicle, 11/21/1881, p. 3)
M. C. Hassett was an attorney who assisted the Harbor Commissioners’ attorney in their lawsuit to declare the Long Bridge a nuisance. The Franconia Landing property owners paid for his services in part, or perhaps entirely. It is not clear whether Seculovich personally contributed funds. While Reynolds and Seculovich shared the goal of (re)opening Islais Creek to navigation, their disparate personalities seem to have made it impossible for them to work together. Still, the year ended on a high note for them both when the trial court ruled in their favor:
On the trial it was proved by the United States Harbor Surveyor, the State Harbor Engineer and Master of Marines that the navigation on the creek in times past had been considerable, and that it was a valuable piece of navigable water. The United States laws forbid the closing up of a navigable water, so the case only hinges on the simple matter of fact as to whether or not the creek was once a navigable piece of water. (Examiner, 12/22/1881)
Six months later, in a “memorial” complete with “a gaudy seal, embossed with the words ‘Islais Creek Property-owners’ Association,’ and a representation of the creek as it is supposed it will be when the obstructions are removed,” Seculovich reminded the Board of Supervisors that the court had declared the “the obstructions across the mouth of the channel a nuisance” and ordered their removal (Examiner, 7/26/1882, p. 2).
A month later, with the city still taking no action, he returned to the Street Committee of the Board of Supervisors “with a formidable lot of law books under one arm and a diagram two yards long under the other” (Examiner, 8/26/1882). In November, he might have felt he was finally seeing progress when, almost a full year after the trial court’s decision, the city attorney gave his official opinion to the Board of Supervisors that Islais Creek was a navigable stream. He specifically thanked Seculovich “for material aid rendered him in arriving at a definite conclusion in the matter,” and he advised the board that it had the power “to cause the removal of certain material which it had caused to be dumped near Fifteenth avenue,” that is, the embankment extending Fifteenth Street from the Potrero to the San Bruno road and crossing Islais creek. But the city would have to bear the cost of the removal (Chronicle, 11/2/1882; Examiner, 11/4/1882). The Judiciary Committee of the Board of Supervisors voted in favor of the removal after it received petitions on the subject. At least some members of the public seemed to believe prosperity was on the horizon for the Islais marshlands, advertising 13 lots in Bernal Rancho Gift Map 4 that “lie on the Islais Creek, a navigable stream; in a short time they will be available for a landing point for lumber, bricks, etc., for this point of the city” (Examiner, 12/9/1882, p. 2).
In December 1882, Board of Supervisors referred yet another petition urging them to action in the matter to the Street Committee. Seculovich returned to the Judiciary Committee arguing that the mayor “will not act in the matter, because he does not see his way clear to positive action. If the Supervisors confer further power upon him, and in more explicit terms, he can do something.” The committee laid the matter over (Examiner, 12/12 and 12/16/1882).
In Washington, DC, California Senator John F. Miller, at Seculovich’s urging, submitted a petition to the US Senate “praying for reopening of Islais creek to navigation” and requesting $50,000 and the assistance of the US Attorney General to remove obstructions, local bodies having failed to take action (Chronicle, 12/19/1882).
The year 1882 neared its end with the situation on the ground unchanged but avenues remaining for redress. The Judiciary Committee of the Board of Supervisors again reported in favor of “clearing Islais creek and preparing it for navigation, expenses to be paid out of some fund not disposed of” and the matter returned yet again to the full board (Examiner, 12/27/1882).
In early January 1883, the Board of Supervisors met to clear up unfinished business before the seating of a new board. A proposal to pay for removing obstructions in Islais Creek and preparing plans for a drawbridge “out of any money belonging to the city not otherwise disposed of” incited lengthy debate, which ended with yet another postponement. The new board proved disappointing, the Chronicle reporting, “Islais Creek Improvements Nipped in the Bud.” Money was short, and “The order providing for the improvement of Islais creek was indefinitely postponed.” The new session of the legislature in Sacramento saw a bill introduced to (yet again) declare Islais Creek a navigable waterway “to the southwesterly end of its channel”—a point perhaps intentionally left vague. Other proposed bills would repeal the 1868 legislation protecting the railroad bridge, require the Harbor Commissioners to clear the creek of all obstructions to navigation and authorize the construction of drawbridges and other improvements, the drawbridges to be free of tolls (Chronicle, 1/6/ and 1/23/1883).
Perhaps riding an uptick in public hostility toward railroads, the Potrero and Bayview Street Railway having been acquired by Southern Pacific, the Islais Creek Property Owners Association petitioned the Harbor Commissioners not just for a drawbridge but to remove the Long Bridge altogether. From the wording of the request, we can assume the unidentified spokesman for the association was Seculovich. The commissioners referred the matter to their attorney (Examiner, 1/12/1883, p. 1). A few days later, the Board of Supervisors authorized the city surveyor to prepare plans for improving Islais Creek (Chronicle, 1/16/1883, p. 4). When Seculovich again urged the Street Committee to replace the bridges over Islais creek with draws, the committee decided to inspect the creek for itself. The Examiner waxed poetic about the proposed “Supervisors’ Picnic Along the Banks of Islais Creek”:
The visit to Islais Creek is to verify Peter Seculovich’s statements regarding that noble stream. Seculovich is an enthusiastic and urbane gentleman known to the Legislature, the Harbor Commissioners, to successive Boards of Supervisors, and to the newspapers, as the “Friend of Islais Creek,” although an unfortunate typographical error did once make him the “Fiend” of Islais Creek. Mr. Seculovich wants the Supervisors to send to Sacramento a resolution urging the passage of Assembly bill No. 4, introduced by Assemblyman O’Connor, which, in effect, turns the creek over to the Harbor Commissioners to dredge it. Besides his indefatigable efforts before the various local legislative bodies of California, it is said that Mr. Seculovich has an appeal to Congress ready to be forwarded. His extensive maps and his not unfavorable comparison of Islais Creek to that tortuous brook known as the Petaluma river, on which a national appropriation has been squandered, have excited the curiosity of the Street Committee. They have decided to navigate the creek at low tide. The aromatic balm of a Butchertown breeze blowing over the San Bruno mud flats will be apt to make these adventurous servants of the city sigh for a sachet of the sweet-smelling assafetida before they return. (Examiner, 2/16/1883, p. 3)
The picnic, if it took place, did not help. The full board “indefinitely postponed” consideration of Seculovich’s request for support of the Assembly bill. In April, with the city facing financial difficulties, the Judiciary Committee recommended selling 109 city-owned building lots on the street fittingly named Channel Street that resulted from filling in Mission Creek. Seculovich was present and “filed a formal objection,” asking for the lots to be dug up and “Channel creek be made navigable” (Examiner, 2/27 and 4/17/1883; Chronicle, 4/17/1883, p. 1).
At that juncture, the political will might have been mustered to clear the obstruction in Islais Creek resulting from the embankment for Fifteenth Avenue, but money to pay for it was not forthcoming. As for the other major issue, the Long Bridge, time looked to be accomplishing what the efforts of Seculovich and the Islais Creek Property Owners Association had not. After 20 years, the wooden structure, never adequately maintained, began to crumble:
One can hardly pass one hundred yards without encountering a fissure or interstice between the beams, while ever and anon is a large gaping hole, discovering the dark-blue water of the bay or the gray-and-greenish slush of the morass twenty feet beneath. Here and there rude attempts are noticeable at patching up these yearning apertures, but this repairing is more honored in the breach than the observance. On the Mission bay bridge and further on on the Long bridge the timbers sway and quiver under the weight of the passing teams, the crossing of a light buggy being sufficient even to cause an oscillation and vibration of the fragile supports. It is alleged that the Long bridge, which was never considered strong and contains only 6x8 inch caps, has perfectly rotting foundations. Accidents are of frequent occurrence, two horses of Mr. Brandenstein’s team having fallen through the rotten scantlings into the marsh beneath about ten days ago, while only yesterday one of the railroad car horses crashed through the creaking planking and was extricated after an hour with the greatest difficulty. The residents of the Potrero even refuse to allow their children to cross the bridge alone to attend the South San Francisco School, owning to its perilous condition. (Chronicle, 6/23/1883, p. 3)
When the city franchise that authorized the operation of the Potrero and Bay View Railroad expired, tolls were abolished, to the satisfaction of the public. Seculovich appeared at the hearings on an application by the railroad to renew the franchise and began reading aloud the act admitting California to the Union,
under which Islais creek is by him supposed to be a navigable creek. The committee protested, but Seculovich kept on and had his say. Supervisor Sullivan finally disposed of the matter by moving that the application be denied, which was unanimously adopted. The result was received with applause. (Examiner, 5/2/1883, p. 2; Chronicle, 5/4/1883, p. 2)
The railroad then ceased operating on the Islais Creek portion of the Long Bridge and began tearing up the rails, threatening to pull up one of the sets of rails on the north side of Islais Creek as well and run only a single line of cars from the Potrero to the city. The Judiciary Committee of the Board of Supervisors responded that if the railroad carried out its threat to discontinue part of its service, its charter would be forfeited. Seculovich took the opportunity to request the supervisors to “provide for the navigable opening of Islais creek, either out of the present Street Fund or in the next tax levy.” Others asked the Street Committee for any new franchise to include a drawbridge over Islais creek, “which the committee readily acceded to.” The Long Bridge was essential for the butchers in the slaughterhouse district on the south side of Islais Creek to transport their wagonloads of fresh meat into the city, and they hired three men to keep the bridge and its approaches usable while exclaiming “loudly against the hardship of being compelled to pay what they consider a triple tax, as they are already mulcted heavily in wagon and cattle-killing licenses” (Examiner, 5/26, 6/9, 6/12 and 6/17/1883; Chronicle 6/15 and 6/17/1883).
Through the summer, discussion continued regarding a franchise that would include maintaining the bridges at the lowest possible toll. In August, the city issued requests for proposals but received only one bid, which was rejected on account of the tolls being to high. Public meetings continued, denouncing tolls. The Board of Supervisors appropriated $150 per month to maintain the bridges despite objections that the bridges were private thoroughfares. In September, the amount was raised to $200 per month, the butchers to pay any additional costs (Examiner, 8/13, 9/19 and 9/21/1883).
In Congress, Senator Miller presented a memorial from the Islais Creek Property Owners Association. The Chronicle commented,
The specter of Islais creek obstructions has haunted every Legislature in California. The Committee, when it understands that this memorial asks the destruction of a bridge now under control of San Francisco Supervisors, will smile at its presentation to Congress. It is stated that Mr. Seculovich would probably be here this Winter to look after the memorial. (Examiner, 12/8/1883; Chronicle, 12/6/1883)
Seculovich does not seem to have gone to Washington, but in the spring it was reported, “Representative Sumner of the House Committee on Rivers and Harbors will endeavor to have inserted in the bill now being prepared by that committee an appropriation for the survey of Islais creek” (Chronicle, 4/2/1884, p. 3).
Seculovich’s efforts did not go unnoticed or unappreciated. In June, a petition to Board of Supervisors signed by 107 men, including prominent names in business and politics, requested “payment to Peter T. Seculovich for services rendered by him which had led to judicial decisions prohibiting the obstruction of the navigable waters of the bay by debris, at such a sum as they may deem proper” (Chronicle and Examiner, 6/24/1884). The Sacramento Daily Record-Union also praised him:
For many years Peter Seculovich has struggled to prevent the navigation of Islais creek from being obstructed, and he has at last obtained a decision by Judge Allen supporting the view that he has taken. Mr. Seculovich has brought to the Court’s notice the fact that the act of admission of California into the Union forever prohibits the obstruction of navigable streams. This had a direct bearing upon the decision in the debris cases and was cited by the Judges rendering it. The determined efforts of Mr. Seculovich to have Islais creek kept open for navigation has greatly benefited the State. (Sacramento Daily Record-Union, 6/5/1884)
That fall, the Citizens Independent Party put up his name as a candidate for the state Assembly. The party’s opposition to the political machine closely associated with the railroads likely would have appealed to him (Examiner, 10/24/1884, p. 5).
Seculovich continued his personal campaign with yet another “long communication” to the Board of Supervisors. The board, apparently having had enough, referred the matter to the Committee on Navigation. “As there existed no such body,” the Examiner reported, “the clerk of the board filed it for the Judiciary Committee” (9/30/1884, p. 3).
The supervisors found money to shore up the Long Bridge, if not to clear the Fifteenth Avenue embankment from Islais Creek, authorizing $5,000 for lumber to replank the Long Bridge, even as a new proposal surfaced for a franchise for a street railway that would include a drawbridge on Islais Creek (Chronicle, 9/30/1884, p 8; Examiner, 11/18/1884).
Matters in Washington stalled. Congressman Sumner wrote asking the Board of Supervisors the status of litigation regarding the Islais Creek bridge and the board’s opinion about opening navigation to Islais creek. The colonel in charge of the matter was recommending to the Secretary of War against any survey of Islais Creek (Examiner, 11/12/1884, p. 3).
In late 1884, a proposal surfaced to replace both sections of the Long Bridge with a solid embankment, that is, to “grade” Kentucky Street (present-day Third Street) along the same line as the bridges. The Street Committee indefinitely postponed discussion of property owners’ request that the project include a drawbridge across Islais Creek. The Board of Supervisors sent Seculovich’s subsequent protest back to the Street Committee, which gave him 10 minutes to state his case. He retorted that he needed an hour and had “a scheme that will knock the spots out of any of your legal proceedings.” The committee gave him a week to file a brief. At the next Street Committee meeting, “the voluminous file of Peter Seculovich on the obstructing of Islais Creek was placed on file” where it was open to the public. Nothing further was reported about his “scheme” (Examiner, 12/13/1884, 1/13 and 1/16/1885; Chronicle, 12/13 and 12/25/ 1884, 1/30/1885, p. 4).
Long-simmering dissension in the ranks of the Islais Creek Property Owners Association, of which we have earlier seen hints, boiled over: The acid manufacturer from Franconia Landing, John Reynolds, called a meeting “reviving an adjourned meeting from around 1880.” Declaring he was vice president, Reynolds reported $155 collected and spent “employing counsel to assist the attorney for the Harbor Commission in their old fight with the Potrero and Bay View Railroad Company.” The members present adopted a resolution objecting to filling Kentucky Street without a drawbridge and asked the state legislature for money to dredge and wharf the creek. Finally—what the Chronicle described as “the true inwardness of the meeting”—Reynolds’s son, George, offered a resolution to be sent to the state legislature “relating that Peter Seculovich in all his efforts in behalf of Islais creek interests had simply expected the plaudits of his fellow-citizens, that counsel ‘learned in the law’ had been paid for all the legal ability used in the fight with the Potrero company, and that, therefore, the undersigned were opposed to his receiving any compensation.” With the introduction of this resolution, the Chronicle continued, “the fun commenced”:
Seculovich has spent five or six years in fighting for Islais creek and was the first to discover the forgotten provision of Section 3 of the Act granting admittance into the Union to California forever forbidding the closing of any of the navigable waters of the State or the deposit of debris therein, and which provision was the principal basis of the great debris suits. His services have been entirely voluntary and result of his enthusiasm in the cause of his favorite Islais creek. But recently the tempter has worked upon the cupidity of the venerable Peter, and his friends intend introducing a bill into the Legislature granting him $50,000 for his distinguished services—$5000 for his own compensation and the remainder, as Peter naively says, to make it “solit vit the boys.” (Chronicle, 1/19/1885)
Seculovich was present and rose to speak, but Reynolds “excitedly” ruled him out of order and threatened to have a newly appointed sergeant at arms put him out. After much uproar, with Seculovich and Reynolds shouting over each other, Seculovich “withdrew, but came back to ask the reporters to take notice that he had been refused a hearing.” The Examiner reported more soberly that the meeting resolved “That Peter Seculovich be not recognized by the Property-owners of Islais creek regarding their interests in the future. Mr Seculovich was present and the meeting, and was very boisterous. He was subsequently declared obnoxious. He then quietly made his exit.” A subsequent motion proposed “that the Legislature be instructed not to recognize any actions of Mr Seculovich in regard to the interests of Islais creek” (Chronicle and Examiner, 1/19/1885).
In April—three months later—Seculovich issued a response, which appeared in the Examiner. He claimed that the January resolution repudiating him was not actually adopted, that Reynolds was not then or later the vice president of the association as he had claimed and finally that no actual property owners were present at the January meeting. Technically, it appears that Reyolds was not vice president but president in 1879 and 1880. The proposal to compensate Seculovich seems not to have gone anywhere. In May, Seculovich presented new objections to the Board of Supervisors regarding the grading of Kentucky Street, which they refused to consider—it is unclear from our sources if he purported to represent the Islais Creek Property Owners Association or spoke only for himself. (Examiner, 4/21 and 5/4/1885)
From Washington, DC, came news that Congress failed to fund a number of California harbor and river projects. The army engineer was particularly discouraging about Islais Creek:
The mouth and that portion of the creek which is in any sense navigable lie about three miles to the southward of the central portion of the city. But for the tides there could be no navigation of the creek. The tide, which rises from four to seven feet at neaps and springs, ebbs and flows over about a mile length of the estuary adjoining the mouth, which is in San Francisco bay. In the natural state of the estuary the tides reached a point two miles above the mouth, but is now intercepted by a causeway embanked across the creek on the line of Fifteenth avenue, a mile above the mouth. It now forms one of the lines of communication between the city and a suburb known as South San Francisco. This road is, to the degree that it reduces the volume of tide circulation in the estuary, an injury to the channel of the creek. A second road, known as the San Bruno, crosses the creek by a bridge about 3,000 feet above Fifteenth avenue. It is thought not to be injurious in its effects upon the navigable value of the estuary. It is possible that the improvement of the creek would lead to the establishment of new and large factories. Nevertheless, the advantages likely to be thus gained for commerce seem, under the circumstances, to be of too small proportion to justify the considerable expenditure that would be required to build and maintain one or more draws and dredge the approaches to the creek. The complication caused by the State having authorized the construction of thoroughfares across the channel seems to be an additional reason why it is not expedient at present to undertake the improvement of the creek. At some future time, when complications shall cease to exist and when there shall appear to be a real need for increased commercial facilities, Islais creek may be worthy of improvements, but under existing circumstances it is not so regarded. (Chronicle, June 8, 1885, p. 3)
Meanwhile, in California, the unidentified speaker in an appeal to the Harbor Commissioners was surely Seculovich:
One of the delegation, a citizen of phlegmatic temperament and with more emphatic oratory than rhetoric demanded that the Commissioners, as “Fathers of the Waters,” were compelled by their oaths of office to build a draw-bridge at the State’s expense, or else remove the entire bridge. Courts or no Courts. He declared that all his fellow-property-owners were in a ruined condition, and if the bridge remained they would be “more ruined.” He was interrupted by Commissioner Irwin, who attempted to state his disbelief in the authority of the Board to build draw-bridges, whereupon the orator delivered a free lecture upon the duties of the office of “Father of the Waters” but was cut short by the definite dictum that “the Board utterly refused to build draw-bridges.” It was the opinion of Commissioner Irwin that the Board had the authority to order the removal of obstructions, but not to provide the means or suggest compromises. (Examiner, 6/24/1885. p. 2)
Shortly thereafter, the California Supreme Court issued its decision in the long-pending appeal of the trial court finding that the Potrero and Bay View Railroad wrongfully obstructed navigation in Islais Creek. In deciding in favor of the railroad, the court looked to the provisions of state legislation that Seculovich and others had preferred to ignore. According to the timeline found by the court, in April 1866 the state legislature granted rights to the street railroad along this route, which necessarily included a bridge. In 1868, the legislature added the requirement that the company “construct a draw in the bridge on Kentucky street, at its intersection with Tulare street, whenever the parties interested shall pay the expense of constructing such draw, and provide for maintaining the same.” If the state had the constitutional power to authorize the building of the bridge, the court reasoned, it would follow that the bridge could not legally constitute a nuisance. Turning to the Act of Congress admitting California to the Union, which provided “that all the navigable waters within the State shall be common highways, and forever free,” the court noted that the US Supreme Court had made clear the clause only meant to “insure a highway equally open to all without preferences,” preventing private parties from excluding the public or exacting tolls for navigation. In authorizing a bridge, as in the present case, “to promote the convenience of the public,” California, like all the other states, had “plenary power over bridges over navigable streams unless and until Congress acts on the subject” (Chronicle, 6/25/1885, p. 2).
All sources for this 10-part article appear at end of Part 10.