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Sullivan v. Moreno-Statement of Case.

his structures and obstructions to navigation far to the eastward of the extended lines of Barracks street within which said wharf should be confined; that as is shown by said plat and will appear upon view he has extended and is extending his obstructions eastward to and across the extension of Adams street upon which one John Lear has authority, and is, as your orator is informed, about to build a wharf still further to the eastward to and across the lines of the extension of Alcanis street upon which John Callaghan has authority, and is now building a wharf; that said defendant's obstructions extend eastward within a short distance of Barkley's point, a point extending far out and greatly shallowing the waters of the bay to the east of the obstructions already placed in and now being placed in the navigable waters of said bay east of the extension of Bartacks street so that even now, before the full occupancy of the extension of Adams and Alcanis streets by wharves, the public, and especially your orator, is almost entirely excluded from the public highway over the navigable waters of Pensacola bay east of Barracks street to beyond Alcanis street; that said defendant is now engaged, regardless of your orator's oft-repeated objections and protests, in erecting a cross wharf from Barracks street wharf eastward across the extension of Adams street to and across the wharf being built by said Callaghan, he having already driven piles therefor and threatens to fill in with ballast, sand, &c. that defendant has put and is putting into the navigable waters of the bay to the eastward of said Barracks street wharf large quantities of rock and sand and other materials to permanently obstruct navigation in and upon the navigable waters of said bay, and if not restrained will almost entirely exclude navigation in the waters of Pensacola bay between the extension of Barracks street and Barkley's point, and will absolutely, permanently and

Moreno's
Coal Yard

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Shore Line

Sullivan v. Moreno-Statement of Case.

irreparably exclude navigation between Barracks street wharf and Alcanis street wharf, and will thus perpetuate the public nuisance of which he is already guilty, and will render your orator's wood yard entirely inaccessible by the navigable waters and the great public highway of Pensacola bay."

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Sullivan's Wharf.
Extension of Barracks Street.

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Sullivan v. Moreno-Statement of Case.

The above diagram shows the location of the points named in the bill and the wharf obstruction proposed to be constructed by the defendant. The locality of Barkley's point mentioned in the bill does not appear upon the plat filed.

Plaintiff alleges that special and irreparable injury will result to him unless the defendant is required to abate said alleged nuisance and remove all obstructions he has put in the navigable waters of Pensacola bay east of the extension of Barracks street.

Plaintiff prays that the defendant may be enjoined from placing any earth, sand or stonein or in any wise obstructing the navigable waters of Pensacola bay east of the extended lines of Barracks street obstructing navigation to and from his wood yard, for a mandatory injunction directing the defendant to obviate, abate and remove the nuisances, impediments and obstructions already placed by him in the navigable waters of the bay east of Barracks street so as to render plaintiff's use of the waters as full and complete as it would be but for such obstructions, and for general relief.

Plaintiff on the 25th March gave defendant notice that he would on the 4th of April, A. D. 1882, move for an injunction as prayed for in his bill. On the 3d of April, A. D. 1882, the defendant filed his answer.

Defendant admits that Francisco Moreno has been in possession of and claimed title to lots known in the Spanish plan of the City of Pensacola as lots I. and H., and that said lots are situated between Barracks and Adams streets, and are the lots in respect to which complainant asserts riparian rights, but denies that said lots do now or did extend to the ordinary high tide mark of Pensabay, and affirms that said lots are now and always have been bounded on the south by a public way, street or

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Sullivan v. Moreno-Statement of Case.

common lying between the south boundary of said lots and the shore line of Pensacola bay. What purports to be a copy of the Spanish plan of the city, so far as necessary to the location of said lots with reference to the bay and city and line of high tides, is filed as an exhibit to the answer. From this it appears that a street or common intervenes between the south boundary of lots I. and H. and the ordinary high water mark of the bay. Defendant further says that it is not true that Francisco Moreno ever owned any part of the soil south of the south line of said lots I. and H. as defined upon said plan; denies that Francisco Moreno ever could have, by reason of his said ownership of said lots I. and H., any riparian rights into or upon the bay shore or the submerged land in front thereof, and affirms that the land occupied by the plaintiff's wharf and wood yard is on soil belonging to the public as a public way, street or common on submerged land adjacent to said public way, street or common, and in proof thereof defendant files a certified copy of the deed by which said Francisco Moreno acquired title to that part of lot H., in front of which plaintiff's wharf and wood yard are situated. This exhibit is a deed from Benj. D. Hassell to Francisco Morenc. It is dated April 10, A. D. 1841. It recites the land conveyed as "all that certain lot and half lot of land situated, lying and being in the City of Pensacola adjoining the Tivoli House (commonly called), and bounded on the eastern side by a lot known on the plan of the said city as Hospital lot, on the south by the street on the Pensacola bay, on the north by the Tivoli street, and west by the lot commonly called the Tivoli lot, containing one lot and a half lot agreeably to the plan of said city, which said lot and half lot is the eastern part of the lot known upon the plan of said city as lot H., containing one hundred and

Sullivan v. Moreno-Statement of Case.

twenty-five feet front on Tivoli street and one hundred and thirty-six 6-12 in depth."

Defendant alleges that the said wood yard is a continuing trespass on said public way and the submerged land appurtenant thereto; that the yard was built and established several years after the defendant's boom and wharf were built and established; that defendant's wharf at the foot of Barracks street was built under a charter from the City of Pensacola to meet the wants of commerce; that it does not deflect from the line of Barracks street until after it reaches the channel in 12 feet water, and that its deflection was necessary for the accommodation of ships and other vessels, and that it was made and built and has been continued without complaint or objection from said city or any individual until plaintiff's complaint, and that it has been built and maintained at great expense for a period of nine years, and for that period adversely and actually possessed and managed by defendant as a public wharf against the claims of any person asserting rights adversely thereto... Defendant further says that his timber boom was built im 1873, and has since been actually possessed, used and main-tained adversely to all persons claiming riparian rights,. complainant and his assignors amongst the rest, if they ever did assert any rights against the respondent; that during the time the said boom was built one Stephen A. Moreno held a conveyance from said Francisco Moreno for all the riparian rights and privileges now claimed by complainant; that after the construction of said wharf and boom as aforesaid the said Stephen A. Moreno, on the 13th

September, A. D. 1876, re-conveyed whatever riparian rights. and privileges he had in front of said lots I. and H. to said Francisco Moreno, who afterwards, on the 14th of October, A. D. 1876, made a like conveyance of said riparian rights privileges to complainant, and that thereafter, on the

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