94 Cal. 131 | Cal. | 1892
Appeal from judgment and order denying a new trial.
This action was brought against the city of San Luis Obispo and its street superintendent to enjoin the opening of a street therein.
The city of San Luis Obispo, formerly the town of that name, was located upon public lands of the United States, and acquired title under an act of Congress entitled “ An act for the relief of the inhabitants of cities and towns,” passed March 2, 1867.
March 23, 1868, the legislature passed an act defining the limits of the town, and authorizing her board of trustees to enter these lands “in trust for the several use and benefit of the occupants.” (Stats. 1867-68, p. 245.) The statute authorized the board to ascertain who were the beneficiaries of the trust, and to determine conflicting claims, and directed them to execute deeds to the proper parties.
The act of Congress referred to provided that the corporate authorities in such cases might enter the lands “ in trust for the several use and benefit of the occupants thereof, according to their respective interests.”
The board, therefore, was a mere trustee for the occupants, and by the terms of the act of Congress was to execute the trusts under such regulations as might be prescribed by the legislature.
As early as 1866, one Murray was in possession of a tract consisting of 31.78 acres within the town limits. At that time the tract was not divided into blocks and lots, and no streets extended through it.
In 1869 the town trustees caused the town to be surveyed, of which survey a map was made, called the Harris and Ward map, which was adopted as the official map, and deposited in the recorder’s office in 1870, but not filed until 1878. This map embraces the 31.78 acres, and shows it laid oif into blocks and lots, and the piece of land in controversy as a part of Pacific Street, which is in accordance with the claim of defendants. October 5,1871, a patent was issued to the town trustees
It is also found that in 1872 the grantees of the town agreed with E. H. Smith to sell him a corner lot adjoining the land in controversy, — whether a part of the Murray tract is not found; that Smith by mistake built on the lot in controversy a house worth $150, which is still there; that the grantees of the town refused to con
It is obvious that the conveyance of the title by the city did not affect the tenure by which the land was held. The title was still the possessory title, quieted by a release to the occupants of the title of the United States. It was still affected by the previous acts of the owners, as though no new title had been acquired. But necessarily, as also by express provision of the legislative act, the trustees were required to decide, in the first instance, who were the occupants within the meaning of the act of Congress. It is contended that the town, by the survey and map marking streets upon this land, laid claim to them as streets; and when the petitioners annexed to their petition a copy of the map, they recognized the strips of land marked on the map as streets as rightfully so marked; that the trustees, finding that the claim of the town was conceded in the petition, awarded the deed, reserving the streets conceded. But can the mere making of a map be regarded as the assertion of a claim to the streets? It must be assumed that the town authorities knew that they did not own the streets, and could acquire no right to them by surveying and platting them upon an official map. It is not a very unusual proceeding, and may be regarded as a suggestion to the owner, who it may be presumed could more profitably dispose of his lands as lots than otherwise, that it was the proper subdivision to be made. The acts of the officials could certainly have no greater effect. But the land-owner may adopt a survey made by the town, and convey lots and blocks according to it, and thereby perhaps dedicate streets designated upon it. In this case, however, the only evidence which tends to show that the owner of the land adopted the map is the fact that the streets have been opened and are being used by the public, except that portion of Pacific-Street in question here. How they came to be opened does not appear, but from the fact that they have been opened and used for some length of time, without objec
Property cannot be taken for public use without compensation, unless the owner is willing; and this willingness should be manifested by clear and unmistakable acts. Parties are not to be done out of their property by doubtful implications, no matter how greatly the public may be inconvenienced. Has the owner freely given, or is he by some act estopped from denying that he has, is the real inquiry in every such case. Otherwise it would constitute a taking in invitum for public use without compensation. It does not appear that the owners have conveyed any of the land by lot or block, or as bounded by any of the streets. The only references to streets are as above stated. A street mapped might be as good a landmark as a street legally established, and such a conveyance disregarding subdivisions was held in People v. Reed, 81 Cal. 70, to be a withdrawal of an offer to dedicate previously made.
A deed bounding land upon a street merely existing upon a map or plat, made by the owner of the land as a convenience in selling, implies, in favor of the grantee, that the street is there according to the description. There is no such implied covenant in a deed describing land as bounded upon a public highway established by public authority. The grantor in such case assumes no responsibility in regard to the highway. Each party is equally well acquainted with the law in accordance
I think the case should be remanded, with directions to set aside the judgment in favor of the defendants, and enter judgment for the plaintiff as demanded in his complaint.
Vanclief, 0., and Belcher, 0., concurred.
For the reasons given in the foregoing opinion, the case is remanded, with directions to the court below to set aside the judgment in favor of the defendants, and enter judgment for the plaintiff, as demanded in his complaint.
Rehearing denied.