Boone v. Von Arx , 4 Alaska 716 ( 1913 )

JENNINGS, District Judge.

If, at the time of the trial, matters had been in the same condition as they were at the time the action was brought, an injunction could have been issued restraining defendant from causing or continuing the existence of any structure which would prevent reasonable access to said strip of upland; but between the filing of the complaint and the trial of the action there appeared on the scene a vis major which has completely changed the aspect of affairs. It seems that the Treadwell Mining Company, which operates a large stampmill a short distance down Gastineau Channel from the locus ’of the upland strip in question, had for some time been discharging in front of this upland a large quantity of tailings from the mill. About 1,200 tons of tailings, débris, etc., has been daily deposited upon the tideland in front of this upland. By the time of the trial this had resulted in the creation of a large area of what is known as made land. These tailings have so filled up the shore in front of the property as to completely, or almost completely, submerge under sand and débris, not only the stairway in question, but the obnoxious piling also. The deposit is many feet in depth and is now on a level with the railroad track; and it has pushed out the line of mean high tide some 120 to 150 feet seaward from where said line appears on Plaintiff’s Exhibit 1, so that what was water front at the commencement of the action was at the time of the trial far inland, and is so now.

Who is the owner of this made land ? Does it belong to the plaintiff, whose contiguity to the sea it has destroyed? Does it belong to the Treadwell Company, who made it out of the tailings belonging to it, conveyed by it in its pipe line and by it deposited? Does it belong to the United States, the paramount proprietor, or does it belong to the defendant by virtue of the possession he has taken of it? It seems to me that these are pertinent questions, but the court will not undertake to decide them now. If this made land be considered as in the nature of avulsion, then the strip of what was once water front ceases to be water front, for it is well settled that in avulsion the boundary line does not change. If avulsion, then plaintiff has lost his littoral rights, and has no equity for an injunction. If it be considered as accretion, then it may well be contended that it belongs to plaintiff just as much as the upland, and, if so, the action should be one for the recovery of the possession of land.

However that may be, the plaintiff does not in this action assert any ownership over the made land. This is not an action for the possession of or injury to land; it is a suit invoking the strong arm of the court to prevent the defendant from interfering with plaintiff’s ingress and egress to the water highway from the strip of erstwhile water front. Before the court can grant such relief as that, it must appear that there is imminent danger of such interference, and then, too, the thing which the court is asked to do must not be a vain and foolish thing; it must be practicable, enforceable, beneficial. If the only effect of the doing of a thing be to cause vexatiousness and expense to a defendant while it benefits not the plaintiff, the court will not order the thing to be done. And so in this case an order for the changing of the manner of bracing the piles, or for the removal of the piles altogether, can result in no good to the plaintiff, for, if the piles were all removed, the made land would still prevent boats from reaching the stairway or any other part of the upland.

Plaintiff contends that the court should consider only the condition of affairs at the time the suit was brought, and not their condition at the time of the trial. I do not so read the law. Equity will not do a nonsensical thing; it will not, like Canute of old, bid the sea to stand still, nor will it say to the land, “Vanish thou into thin air,” nor will it ignore the change of conditions rendering futile the doing of the thing asked. Plaintiff also contends that, even recognizing the existence of this made land, he is entitled to free ingress and egress to and from the water, over the made land, from and to what was once his strip of water front, and that, if defendant Is allowed to construct a solid row of houses between his said upland and the present water line, he will be shut out. Whether or not plaintiff is the owner of the made land, the court is not now called upon to say; and whether or not, not being the owner, he has any such right of way over it as is claimed, it is sufficient to say that defendant expressly disclaims any purpose or intention to construct a solid line of houses. On the contrary, he has testified as to his plans, and has filed herein a plat (Defendant’s Exhibit A), from which it appears that on the Treadwell end is a wide passage to the beach, as that beach now is, and that between the buildings to be erected by him he has, in each instance, left a passageway six feet wide, so that there would be ample means of access to and egress from said upland to the present water line.

I can see no equity for an injunction in this case. But, in harmony with the reformed Code of Procedure, I will not dismiss the action. Plaintiff may, if he is so advised, amend his complaint and proceed as in an ejectment, or for damages, or take such other steps as may be proper, upon paying the costs of the present proceeding.