CRESCENT CITY WHARF AND LIGHTER COMPANY, Respondent, v. A. M. SIMPSON et al., Appellants

[No. 11649. Department One. October 26, 1888.] CRESCENT CITY WHARF AND LIGHTER COMPANY, Respondent, v. A. M. SIMPSON et al., Appellants. Injunction—Damages—Removal of Moorings — Admiralty Jurisdiction. — When the action is in personam, to obtain an injunction to prevent the removal of moorings from navigable waters, and to recover damages for such moorings as have been removed, the state courts have concurrent jurisdiction with the federal courts. The jurisdiction is concurrent over causes of admiralty and maritime jurisdiction in all cases where a common-law remedy is sought which the common law is competent to give. Id.—Wharf—Appurtenances — Complaint—Demurrer for Ambiguity and Uncertainty. — A complaint averring in substance that certain moorings, anchors, and buoys were in the possession and under the control of the plaintiff, and were necessary and appurtenant to a wharf leased by the plaintiffs from the proper authorities of a city; that one of them had been removed by the defendants, to the damage of plaintiff in the sum of fifteen thousand dollars, and that defendants threaten to remove the rest of them; and that the injury threatened could not be estimated, and was irreparable, — is not demurrable for ambiguity and uncertainty, as to the title to the moorings, nor as to the estimate of damages and irreparable injury. Injunction — Waste—Insolvency—Pleading. — When an injunction is sought to restrain irreparable injury to the inheritance, from a trespass threatened in the nature of waste, the complaint need not allege the insolvency of the defendant. Corporation — Corporate Seal — Evidence. — Where a corporate seal is affixed to an instrument by the proper officer of the corporation, it is. sufficient prima fade to show the authority for its execution, and the instrument is admissible in evidence. Lease — Acceptance by Lessee.—It is not necessary to the validity of a lease that the lessee should affix his seal thereto. His acceptance is shown by claiming and occupying under it and paying rent. Appeal from a judgment of the Superior Court of Del Norte County, and from an order denying a new trial. The demurrer for ambiguity and uncertainty referred to in the opinion was as follows: “That it cannot be discovered in the said complaint whether the plaintiff claims title to the moorings in question by virtue of the ownership, or by virtue of user thereof; it is unintelligible and uncertain for the same reason; it is also ambiguous in asserting that it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief to the plaintiff, and in asserting that no pecuniary damages would be an adequate compensation to the plaintiff herein for the loss of the said anchors, moorings, and buoys, and further asserting that, by reason of the premises, plaintiff has been injured, and has sustained damages in the sum of fifteen thousand dollars ($15,000).” The further facts are stated in the opinion. L. F. Cooper, L. F. Coburn, and Daniel Titus, for Ap-' pellants. The facts constituting irreparable injury must be set forth. (High on Injunctions, secs. 460, 461; Gauze v. Perkins, 3 Jones’ Eq. 177; 59 Am. Dec. 728; Schurmier v. St. Paul etc., 8 Minn. 113; 83 Am. Dec. 770; Weigel v. Walsh, 45 Mo. 560; Bethune v. Wilkins, 8 Ga. 118; Van Winkle v. Curtis, 3 N. J. Eq. 422; Shipley v. Ritter, 7 Md. 408; 61 Am. Dec. 371; Ex parte Foster, 11 Ark. 304; Ross v. Page, 6 Ohio, 166; White v. Flannigain, 1 Md. 525; 54 Am. Dec. 668; Waldron v. Marsh, 5 Cal. 120.) None of these moorings were attached or in any manner affixed to the wharf, and none of them were on the land of the plaintiff or to which it had any right whatever, but all were attached to the bottom of the bay below low-water mark, and were consequently the property of the state of California. (People v. Davidson, 30 Cal. 379; San Francisco v. Calderwood, 31 Cal. 590; 91 Am. Dec. 542.) The superior court did not have jurisdiction of the subject-matter of the action. The jurisdiction belonged to the United States district court. (U. S. Const., sec. 2, art. 3, subd. 8; U. S. R S., sec. 563; Benedict’s Admiralty, secs. 189-191; Desty’s Federal Procedure, subd. 8, sec. 563; Munro v. Alameda, 10 Wheat. 474; Judiciary Act of 1789, 1 U. S. Stats, at Large, 76, 77; The Moses Taylor, 4 Wall. 411.) William H. Hart, and Aylett B. Cotton, for Respondent.. The state court has jurisdiction. (The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624; Leon v. Galceran, 11 Wall. 185; Steamboat Company v. Chase, 16 Wall. 522; Judiciary Act of 1789, 1 Stats. 73, sec. 9, reproduced in section 562, Rev. Stats., par. 8; Schoonmaker v. Gilmore, 102 U. S. 119.) A court of admiralty has no power to give equitable relief by injunction. (Henry’s Admiralty Jurisdiction, pp. 65, 310; Kynock v. The Ives, Newb. Adm. 205; Davis v. Child, Daveis, 71; Raleigh, Cannon, and Astoria, 2 Hughes, 44; The C. C. Trowbridge, 14 Fed. Rep. 874; Andrews v. Essex Marine Insurance Co., 3 Mason, 6; Wenberg v. A Cargo of Mineral Phosphates, 15 Fed. Rep. 285; The Union, 20 Fed. Rep. 539.) The boundary of the state of California extends three English miles into the ocean (Cal. Const., art. 21, sec. 1), and consequently the jurisdiction of its courts extends to that limit. There is no question here between the state and plaintiff. The plaintiff’s possession and control of the moorings is sufficient evidence of his title and right as against a mere wrong-doer. (Civ. Code, sec. 1006.) [MAJORITY — Foote, C. The Court.] Foote, C. This action was brought for the purpose of obtaining an injunction against the defendants, restraining them from taking up certain moorings alleged to be the property of plaintiff, and to recover damages for the removal of certain of said moorings. The court below granted an injunction as to the removal of some of the moorings, and as to portions of others, and awarded damages in the sum of one hundred dollars for the taking away of a buoy and anchor belonging to a mooring of the plaintiff. From the judgment and an order denying a new trial the defendants have appealed. Their first point is, that the court below should have sustained their demurrer to the complaint, because, as they allege, that tribunal had no jurisdiction of the action, and that the complaint did not state facts showing any equities, and was ambiguous and uncertain. The facts set out in the complaint appear to be, among others, that the plaintiff had leased from the proper authorities of the town of Crescent City a certain portion of the water-front of that place on navigable waters, upon which had been built and was being maintained by the plaintiff a wharf used for the unloading and loading of ships and other water-craft; that in connection with the wharf, and as necessary and appurtenant to it, the plaintiff had in its possession and under its control certain moorings, anchors, and buoys, which were affixed and attached to the ground, earth, and rock, constituting the bottom of the bay or navigable waters where the wharf was erected; that such moorings, anchors, and buoys in “annexion” with the wharf were in daily use by the plaintiff, and that the wharf could not be utilized without them; that the defendants wrongfully and maliciously removed one of the anchors, moorings, and buoys, and threaten to and would remove the rest of them unless they should be enjoined from so doing; that the injury already done amounted to the sum of fifteen thousand dollars, and that the injury threatened could not be estimated, and was irreparable. Upon this state of facts, we think there can be no doubt but that the state court had jurisdiction. Conceding, for the purposes of the case, that the federal court would have jurisdiction of such a case, the state court has concurrent jurisdiction, the action being in personam. * (Henry’s Admiralty, p. 39, sec. 19; The Lottawanna, 21 Wall. 558.) The act conferring admiralty and maritime jurisdiction on the United States district court expressly saves “to suitors in all cases-the right of a common-law remedy where the common law is competent to give it.” We do not think that the objection based upon the alleged uncertainty or ambiguity of the statements of the complaint is well taken. It is further contended that the complaint was defective in not alleging the insolvency of the defendants. Yet it stated that irreparable damage was threatened in this: that a part of the wharf which is real estate was about to be wrongfully taken away,—-that is, the inheritance was threatened to be removed, and a trespass threatened in the nature of waste. When such facts are alleged in a complaint, it is not necessary, in order to obtain an injunction, to allege the insolvency of the defendant. (Richards v. Dower, 64 Cal. 63.) The demurrer was therefore properly overruled. It is further claimed by the appellants that the judgment should be reversed, because, as is asserted, the lease under which the plaintiff held was improperly admitted in evidence, for the reason that the officers had no authority to execute it. But the corporate seal appears to have been affixed by the proper officer, and that is sufficient prima facie to show the authority. (Southern C. C. Association v. Bastamente, 52 Cal. 192.) It was not necessary to the validity of the lease that the lessee should affix his seal thereto. His acceptance was abundantly shown by claiming under it, and occupying and maintaining the wharf and its appurtenances, and paying rent. The other points made are without merit, and no prejudicial error appearing in the record, we advise that the judgment and order be affirmed. Belcher, C. C., and Hayne, C., concurred. The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.