31 Cal. 585 | Cal. | 1867
Lead Opinion
This is an action of ejectment brought to recover the possession of “ City Slip Lot No. 21.” It is found that the lot is one of the beach and water lots granted to the city by the State by the “ Beach and Water Lot Act” of March 26th, 1851; and that the lot is included within the area described
The defendant pleaded the Statute of Limitations, and all the facts essential to the defense were found by the Court.
The findings state as a conclusion of law “ that between the passage of the ordinance of the Common Council of the City of San Francisco dedicating the premises in controversy to the public use, November 4th, 1852, and the passage of the ordinance of the Board of Supervisors of the City and County of San Francisco repealing said dedication of the 14th of March, 1864, and by reason of said first named ordinance, no right of entry in said premises existed in said City and County of San Francisco,” and on the ground of this conclusion the special defense was overruled and judgment was entered for the plaintiff.
The only question to be considered is whether the right of entry was in the City of .San Francisco, and the plaintiff, as its successor, from the passage of the ordinance of 1852 to its repeal in 1864. If the right was in the plaintiff and its predecessor during that interval, then the defendant was entitled to judgment; otherwise the judgment is right as it stands.
First—The ordinance of 1852 did not, in itself considered, deprive the City of San Francisco of any right incident to the title acquired from the State by the grant of 1851. The ordinance was not a dedication, but an offer to dedicate, by which the city could lose nothing and the public could acquire noth
Second—But should it be admitted that the dedication was perfected by the mere passage of the ordinance, the right to enter upon and possess the lot, subject to the easement, would remain in the city nevertheless. The public took nothing but an easement', and that term excludes the idea of an estate in the land on which the servitude was imposed. The grantee of an easement has no right of entry upon, nor has he any right to possess the land, as such. In this case the fee of the soil and the right of entry and possession remained in the city from the passage to the repeal of the ordinance in 1864. It is unnecessary to go into an extended examination of the cases upon this subject. The rule is distinctly stated in Washburn on Easements, page 8 ; and it is fully sustained by the authority cited. The general question was before us in Wood v. Truckee Turnpike Company, 24 Cal. 487, and it was considered that “ a way is an easement and consists in the right of passing over another man’s ground. It is an incorporeal hereditament ; a servitude imposed upon corporeal property and not
The distinction suggested, rather than asserted in argument, between an easement upon land covered by water and upon land not so covered, cannot, as we conceive, be sustained upon principle, and no case is referred to as supporting it. The distinction certainly does not consist with Covert v. O'Conner, 8 Watts, 470.
Reliance is also placed by appellant upon People v. Davidson, 30 Cal. 379. We held in that case, if a person without authority should build a wharf or any other structure outside of the water front, on soil belonging to the State, and upon which it had a right of entry, that the State could bring ejectment. We do no more here than decide that the owners of
Judgment reversed, and the Court below is directed to enter judgment on the findings for defendant.
Concurrence Opinion
I concur in the judgment on the second ground discussed in the opinion.