107 Cal. 402 | Cal. | 1895
— Plaintiffs brought this action to enjoin the superintendent of streets of the city and county of San Francisco from removing the improvements from, and opening up as a public street, a certain strip of land in said city and county. Plaintiffs had judgment in the court below. The defendants moved for a new trial, which was denied, and they appeal from the order upon a statement of the case.
Fifty vara lots numbered 38 and 14 are situated in the block or square of said city and county, lying ber tween Broadway and Pacific, and Kearny and Montgomery streets. Lot 38 is a rectangle, situated on the northwesterly corner of the block, with a front of one hundred and thirty-seven and one-half feet on Broadway, and a like extent on Kearny. Lot 14 lies immediately to the east of and adjoining lot 38, with the same frontage on Broadway as the last-named lot, and running back southerly to an equal depth. The plaintiffs claim to be the owners and in possession of that portion of fifty vara lot 14, lying adjacent to lot 38 on the east, having a front of fifty-nine feet and nine inches on Broadway, and running back the full depth of one hundred and thirty-seven and one-half feet. Commencing at Kearny street, and running along and upon the most southerly part of said fifty vara lot 38, is a narrow alley or street, known as St. Charles street, some seventeen and one-half feet wide, which is opened up the full depth of said lot 38; while running from Broadway, and on the entire easterly line of that part of lot 14 above described, as claimed by plaintiffs, is an alley fourteen feet wide, known as Rowland alley. The land in dispute is a strip seventeen and one-half feet wide and about fifty-nine feet and nine inches long on the southerly end of pláintiff’s lot, as now claimed by them, and which, if thrown open, would extend St. Charles street or alley, so as to connect it with Rowland alley.
The claim of the defendants is that the premises in dispute comprise and constitute a part of St. Charles
The court below found: “ 1. That the plaintiffs are and have been in possession of all of the land and premises described in the complaint, claiming title thereto ever since the month of July, 1884, and that the possession of said lot of laud has been held by the predecessors of the plaintiffs ever since prior to the year 1865; an d that there are and have been for many years improvements upon all of said premises, which improvements are the property of plaintiffs.
“2. .That St. Charles street, mentioned and described in the complaint, does not extend easterly from or beyond the easterly line of fifty vara lot 38, and said St. Charles street does not pass across, along, or upon any portion of fifty vara lot No. 14, and that no part of the land described in the complaint has ever been dedicated or accepted, or used as a public street or highway, and no part thereof is a public street.”
The main contention in the case is that these findings are not supported by the evidence, but from a careful examination of the evidence we think this claim cannot be maintained. As to the first finding, there is in fact no substantial conflict in the evidence, and the lower court would not have been warranted in a conclusion contrary to that reached. Counsel's position with reference to this finding would seem to be substantially the same as that pressed upon his motion for a nonsuit —that it was essential for plaintiffs, in order to maintain their action, to establish title in fee in themselves. In this view counsel is mistaken. It was only necessary for that purpose that plaintiffs show actual occupation or possession at the time of bringing the suit. This
The evidence shows, as suggested, without substantial conflict, that, as found by the court, plaintiffs and their predecessors have been in possession of the premises, under claim of title, for more than twenty years.
As to the second finding there is not only a substantial conflict in the evidence upon which it rests, but we think it clearly preponderates in favor of the facts as found by the court. The evidence shows that the alley now known as St. Charles street, but which at different times has been known as “ St. Charles place,” and sometimes as “ St. Charles alley,” had been from early in the “ fifties” used by the residents on that block and in that neighborhood as a convenient way between their homes and places of business. During these early years that portion of the city was not thickly settled, and the district being hilly it was the habit of the residents to go upon trails or paths wherever it was most convenient to travel, without reference to established streets. At this time, at least down to 1854, there were no houses on lot 14. In 1856 Mr. Fiske, who owned the part of fifty vara lot 38 across which St. Charles street runs, fenced up the street, but the owners on the south of the alley paid him for one-half of the width, and he again opened it; and in January, 1857, an
“To constitute a valid and complete dedication two things must concur, to wit: An intention by the owner, clearly indicated by his words or acts, to dedicate the lands to public use, and an acceptance by the public of the dedication.” (San Francisco v. Canavan, 42 Cal. 554.)
“ Dedication is never to be presumed without evidence of an unequivocal intention on the part of the owner.” (Quinn v. Anderson, 70 Cal. 456.) While user may be sufficient to show an acceptance by the public of an offer to dedicate, it is not sufficient of itself to establish dedication by the owner, except it appear clearly that such user was with the knowledge and consent of the latter, or without his objection, and under such circumstances as to fairly give rise to the presumption that the owner intended to dedicate to such use.
The appellants claim that Mrs. Rowland in 1856, in a declaration or schedule filed of her separate property, recognized St. Charles street or alley, as then existing across lot 14, and some stress is laid upon this fact as an evidence upon her part of dedication. But the description of her lot in that schedule shows that Mrs. Rowland did not regard or recognize St. Charles street as crossing her lot, but as running along its southern boundary. She describes her lot as beginning on the
Much stress is also laid upon the fact that, upon the engineer’s map and other official maps of the city, the strip in dispute appears to have been laid down as a part of St. Charles street or alley; but this of itself raises no conclusive presumption that the land has become a public street, either by dedication or otherwise. Where, as here, the land was not a part of one of the originally reserved streets, but came to private ownership under an alcalde grant, the right to take it as a public street depends upon whether it has been dedicated as such. (Whelan v. Boyd, 93 Cal. 500.) The evidence shows that at and before the time those maps were made and filed these premises were fenced, and have never since been opened to use as a street.
The order is affirmed.
Harrison, J., and Garoutte, J., concurred.