83 Cal. 623 | Cal. | 1890
Lead Opinion
— In this case there was a decision in
Department affirming the judgment. A hearing in Bank was ordered, mainly because a number of cases involving the doctrine of the dedication of streets to the public were either then under advisement or had recently been decided; and it was thought best to again carefully ' compare the case at bar with the others. After further consideration, we are satisfied with the opinion delivered in Department. There is nothing in that opinion inconsistent with People v. Reed, 81 Cal. 70, or City of Eureka v. Croghan, 81 Cal. 524. The sale of land described
Judgment and order affirmed.
Thornton, J., Fox, J., and Sharpstein, J., concurred.
Beatty, C. J., dissented.
The following is the opinion of Department Two above referred to, rendered on the 4tli of December, 1889.—
— This was an action of ejectment brought by the city of Eureka to recover a portion of an alleged street called Twelfth Street, of which the defendant was in possession. The trial court gave judgment for the plaintiff, and the defendant appeals.
Twelfth Street was an open public street for some distance to the east of the property in controversy, which would be covered by the street if extended westerly. In order to prove that it was so extended, the plaintiff put in evidence a deed to one Bowman, made in 1883 by the defendant, w'ho was then the owner of the property. The description in this deed was as follows: —
“Beginning at the southwest corner of Twelfth and F Streets; running thence south along the west line of F Street 55 "feet; thence west parallel with Twelfth Street 120 feet; thence north parallel with F Street 55 feet, to Twelfth Street; and thence east along the south line of Twelfth Street 120 feet, to the place of beginning.”
The portion of Twelfth Street to and along which those lines were run was the extension claimed by the plaintiff here. If the deed did not constitute a dedication (see Kittle v. Pfeiffer, 22 Cal. 489), it was at least .an offer to dedicate, and the offer must be construed to relate to the whole block, and not merely to 120 feet thereof;
“All streets and alleys within the corporate limits of the city of Eureka, which have been dedicated by the owners thereof for the use of the public, are hereby accepted and declared to be public streets of the city of Eureka.”
We are unable to see why this was not a sufficient acceptance. The common council must be the proper body to accept,a dedication. If not, who is there that can give a formal acceptance? And if the order had in terms applied to Twelfth Street, there could have been no doubt. The only questions that can be raised are, whether it was necessary to mention by name the street to be accepted, or whether a general reference to it is sufficient, and whether this is a sufficient reference. We think that a general reference is sufficient, and that inasmuch as the deed in question was recorded, the municipal authorities must be presumed to have been aware of it, and to have intended the general reference to apply to it.
The case of Harding v. Jasper, 14 Cal. 649, is not in conflict with the foregoing. In that case there was no dedication or offer to dedicate by the owners. There was, therefore, nothing for the supervisors to accept. And as a matter of course they could not by their mere fiat make a road without reference to the rights of the owners. In the case before us there was a dedication or offer to dedicate; and the acceptance was within a reasonable time, and before any attempt at revocation by the owner.
The land having been duly dedicated and accepted as
There was no material error in the admission or rejection of evidence. Nor do we see any error in the instructions. But if there had been it would have been immaterial,' for the above facts being uncontradicted, the court might properly have instructed the jury to find for the plaintiff.
We therefore advise that the judgment and order be affirmed.
Vancliee, C., and Belcher, C. C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.
Concurrence Opinion
I concur in the judgment, and generally in what is said in the opinion, but do not wish to be understood as approving what is said in People v. Reeds referred to in the opinion.
Rehearing denied.
