107 Cal. 199 | Cal. | 1895
— Action begun May 13, 1893, to abate an alleged public nuisance, plaintiff claiming to have sustained special damage. After trial the court found that
The principal matters agitated here are whether the evidence supports the conclusions of the court that the place where defendants erected their structures is a highway, and that plaintiff has sustained detriment different in kind from that suffered by the public at large. The evidence shows that the alleged highway has for many years been known locally as ‘Dewell avenue’; and for brevity we may refer to it here as the ‘avenue.’ From the record, including a map of the way and premises involved, it appears that about the year 1870 one Benjamin Dewell was the owner of the land “all around the premises claimed to be a road,” as well as that included in the avenue itself. From time to time he sold the land abutting on both the east and west sides of the avenue in parcels of varying dimen
Dewell conveyed to defendant Luella McClure a strip of land lying lengthwise of the avenue and in the same, about fifty-four feet in width and three hundred feet in length, having for its southern boundary the south end of the avenue where the same unites with said Main street, and for its western boundary the east line of the tract previously sold to Waller; this strip, fifty-four feet by three hundred feet, taken out of the western side of the avenue was fenced and otherwise improved by defendants, leaving a narrow lane, twenty feet or little more in width, in the eastern part of the avenue yet open for passage. Such fence and improvements are the obstructions which the judgment requires to be abated as a nuisance. It does not appear precisely when the conveyance was made by Dewell to Luella McClure, but it was probably about the year 1890; in November of that year defendant Frank McClure had begun his house, and was then forbidden by the witness Dunton to obstruct the avenue.
There has never been any expenditure of labor or ’ money by the highway authorities of the county or road district on the way in question. Its character as a highway depends upon its dedication for that purpose by Dewell while he was yet the owner, and its acceptance as such by the public. Concerning this question there was evidence, in addition to the matters above stated, that the avenue has been used for passage by many persons other than those whose lands abut upon it; while as to these latter there appear to be six or eight proprietors whose principal, if not sole, means of exit from and access to their respective lots are afforded by the disputed roadway; they and their prede
Mr. Dewell knew of the travel over the avenue, and that somewhat numerous persons were using it as a roadway for, it seems, at least fifteen years, but took no measures to prevent such use. One Cook, the former owner of a parcel of land adjoining plaintiff’s lot, testified that at the time he purchased his lot, in 1874, he made inquiry of Dewell about the character of the avenue, and Dewell replied that it was a street “ as far south as the property extended that he sold to Waller”: that it was his intention “ for the benefit of settlers and for his own benefit to open up this street.” One Fritz testified that about the year 1877, under similar circumstances—he intending to buy an abutting lot yet further north than the Waller tract—Dewell told him to complete the purchase; that the avenue always would be a street to that lot—never would be stopped.
We understand the law to be well settled that whether a dedication of land for highway purposes has occurred in any instance is a conclusion of fact to be drawn from the circumstances of the particular case; that such circumstances must clearly show an unequivocal intention, manifested by appropriate words or conduct, or both, on the part of the owner, to devote his land to the wayfaring uses of that somewhat vague entity called “the public”; that the public must accept the proffered dedication, but such acceptance may be signified and the dedication made perfect by public user in accordance with the apparent offer of the owner. (Harding v. Jasper, 14 Cal. 647; San Francisco v. Calderwood, 31 Cal. 589; 91 Am. Dec. 542; Smith v. San Luis Obispo, 95 Cal. 470; People v. Marin County, 103 Cal. 223; Hall v. Kauffman, 106 Cal. 451.) The evidence in the present case, above outlined, was sufficient to fulfill the requirements of the law as here stated, and as illustrated
We are of opinion also that the plaintiff sustained injury in such a special sense that she was entitled to maintain this action. (Civ. Code, sec. 3493.) The obstructions cut off access from her land to the highway. (Hargro v. Hodgdon, 89 Cal. 628.) Appellants claim that the embankment constructed by plaintiff on the west side of the slough of itself prevents her access to the roadway, and therefore she cannot be specially damnified by their obstructions. True, the evidence shows that plaintiff must reach the avenue, since the embankment was constructed, by a bridge across the slough, one end of which must, or may, rest on the embankment; but this does not establish that plaintiff’s own structure, and not those of defendants, cause plaintiff’s injury; if it did, then a fence or wall would have the same effect, and the result would be that only uninclosed lots would be protected by the rule plaintiff invokes here. Appellants further contend that the plaintiff has not suffered special damage, because (they say) her lot does not abut upon the alleged highway; that the slough intervenes between the east boundary of her lot and the west line of the avenue. The map accompanying the record shows that at one point the entire width of the slough is on plaintiff’s lot, so that if appellant’s assumption that the alleged highway reaches only the east margin of the slough be correct, plaintiff might still construct a bridge entirely on her own land, and reach the roadway but for the obstructions of the defendants. Besides, it was
Appellants question the sufficiency of the complaint. It is certainly not a model of pleading, but we do not think it fatally defective in the particulars specified by them.
The judgment and order appealed from should be affirmed.
Haynes, C., and Vanclief, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Harrison, J., Garoutte, J., Van Fleet, J.