125 Cal. 572 | Cal. | 1899
This action was brought by appellants to restrain the respondents from entering upon, taking possession of, and removing trees, fences, and improvements from the real estate described in the complaint. The respondents in their answer claimed that a certain part of the land described in the complaint, about thirty feet wide off the eastern side thereof running north and south, bounded on the northern end by Washington street, on the south by Parcel’s subdivision of the John Thomas tract, and on the east by a line formerly the west line of the lands of Reed and Snodgrass, constituted a part of a public street, to wit, Trinity street, in the city of Los Angeles.
Findings were filed and judgment rendered in favor of the respondents as to the lands described in the answer. A motion was made for a new trial and denied, and this appeal is from the judgment and order. The findings and conclusions of the lower court were as follows:
*574 “1. That in the year 1887 the plaintiff, William Niles, was the owner of a certain tract of land in said city of Los Angeles, including the strip of land in question in this action, which tract fronted on Washington street on the north, adjoined the John Thomas subdivision of the Parcel’s tract on the south, and adjoined a tract of land belonging to one L. Snodgrass on the east.
“2. That in 1887, at a time when said William Niles and said Snodgrass were the owners respectively of said adjoining tracts of land, said Niles caused a fence to be built across his said tract of land running from Washington street to the south line of his said tract and on a line parallel with and thirty feet distant from the division line between the lands of Niles and Snodgrass, and at the same time said Snodgrass fenced his said tract of land, leaving outside of his said fence a strip of land about thirty feet in width adjoining for its full length said thirty foot strip which said Niles had left outside of his said fence; and that said two strips of land, having a total width of about sixty feet, were at said time thrown open to public travel by said Niles and Snodgrass, and have been ever since, until a few months prior to the bringing of this action, open to public travel without protest from plaintiffs or their predecessors in interest.
“3. That the strip of land, sixty feet in width and composed of the two thirty foot strips aforesaid, was in direct line with Trinity street, in said city, as it then existed, and as it now exists south of said tract of Niles and Snodgrass, and said sixty foot strip extends from Washington street south in direct continuation of said Trinity street.
“4. That ever since the building of said fences, in 1887, said sixty foot strip of land, including the land in question in this action, has been and was continuously used and traveled by the public as a public street of said city until obstructing fences were built by the plaintiff across the same a few months before the bringing of this action, and was during said time known as and called ‘Trinity street.’
“5. That subsequent to the building of said fences, in 1887, William Niles made a conveyance of his said tract of land, and including the strip in question, to the plaintiff, N. S. Niles,*575 and thereafter, to wit, on August 6, 1894, the said N. S. Niles caused a survey of said property to he made and a map thereof to be recorded in the office of the county recorder of said Los Angeles county, on which map her said property is shown subdivided into lots and blocks only up to the line of said fence theretofore erected by said William Niles in 1887, the easterly line of said subdivision, as shown by said map, being substantially on the same line as the said fence.
“And as conclusions of law from the foregoing facts the court finds and decides: “1. That the land described in the complaint herein is a part of a public street of the city of Los Angeles, to wit, Trinity street; 2. That the restraining order, heretofore granted herein, should be dissolved; 3. That plaintiffs should take nothing by their said action, and that defendants recover their costs herein.”
It is contended that the evidence does not sustain the findings, and that the findings do not justify the conclusions of law, and we think both contentions will have to be sustained. The stipulation contained in the statement on motion for a new trial shows that William Niles and John B. Niles owned the property described in the complaint in fee simple in the year 1880, and continued to so own it until February 4, 1888, when they conveyed it to the appellant, N. S. Niles. Findings 1 and 2, to the extent that they find that William Niles was the owner of the land in controversy in the year 1887, are, therefore, not supported by the evidence and in direct conflict with the stipulation of the parties as shown by the record. The acts of William Niles tending to show a dedication in the year 1887, and prior to February 4, 1888, at a time when he was not the sole owner of the land, in so far as they would or could in any way affect the rights of this appellant, N. S. Niles, cannot be considered in this case. We then have the findings remaining, to the effect that since 1887 until within a few months prior to the commencement of this action the land described in the answer has been open to public travel without protest from appellants, and has been continuously used and traveled by the public as a public street until a few months before bringing this action, and that on August 6, 1894, the appellant N. S. Niles made a survey and map of the portion of the property described in
There is no pretense that the land claimed to be a street was ever laid out or erected by the public, or that it was made such in any action for partition of real estate. It follows that it cannot be held to be a public street unless it has “been dedicated or abandoned” to the public by the owner of the land. In the early and leading cases on the question of dedication in this state it is said: “The vital principle of the dedication is the intention to dedicate; and whenever this is unequivocally
To constitute a dedication of land to the public two things are necessary, to wit, an intention by the owner, clearly indicated by his words or acts, to dedicate the land to public use, and an acceptance by the public of the dedication. (Elliott on Roads and Streets, 85; San Francisco v. Canavan, 42 Cal. 553; San Francisco v. Calderwood, 31 Cal. 585; 91 Am. Dec. 542; People v. Reed, 81 Cal. 70; 15 Am. St. Rep. 22; Washburn on Easements, 140, 239; Child v. Chappell, 9 N. Y. 246.)
This use must be of such duration that the public interest and private right would be materially impaired if the dedication were revoked and the use by the public discontinued. (Cincinnati v. White, 6 Pet. 431, 439; San Francisco v. Canavan, supra.)
The making and filing a map designating certain streets thereon is only an offer to dedicate such streets to the public, and the dedication does not become effectual and irrevocable until the same is accepted by the public. (People v. Williams, 64 Cal. 502; Hayward v. Manzer, 70 Cal. 476; People v. Reed, 81 Cal. 77; 15 Am. St. Rep. 22.)
Such acceptance must be within a reasonable time after offer of dedication, and, if not accepted, the owner may resume the possession of the property and thereby revoke his offer. (Hayward v. Manzer, supra; State v. Trask, 6 Vt. 355; 27 Am. Dec. 554; Field v. Manchester, 32 Mich. 279; County of Wayne v. Muller, 31 Mich. 447; People v. Reed, supra.)
Dedication is never presumed without evidence of unequivocal intention on the part of the owner. (Quinn v. Anderson, 70 Cal. 456.)
"Where the dedication of a highway is sought to be established by user it must be shown that the user was adverse (Huffman v. Hall, 102 Cal. 30), and with the knowledge of the owner (Hope v. Barnett, 78 Cal. 14), and in this case there is no finding that the use was adverse or with the knowledge of the owner. It is claimed that under the portion of the findings termed “conclusions of law” the fact is found that the disputed premises are a public street. It has been held in many cases, in which the appellant sought to overthrow a judgment because of the absence of a finding, that a misplaced finding of fact placed in the conclusions of law will be considered to prevent the reversal of a case fairly tried or to prevent the setting aside of a judgment justly given. But in this case we have the finding of specific facts under five different headings, and finally “And as conclusions of law from the foregoing facts the court finds and decides: 1. That the land described in the complaint herein is a part of a public street of the city of Los Angeles, to wit, Trinity street.” It is plain that this is a general statement or conclusion drawn by the court from the facts previously found. The rule in such cases is that the general finding cannot stand unless the specific facts previously found support it. (People v. Reed, supra; Geer v. Sibley, 83 Cal. 4; Savings etc. Soc. v. Burnett, 106 Cal. 540.)
As this case must be sent back for a new trial, it may be well for us to indicate our opinion on the evidence without regard to the findings. Conceding that William Niles was the sole owner of the land in 1887, at the time of the acts set forth in findings 1 and 2, and conceding that the court found the
Other witnesses testified that the strip had been in cultivation almost every year since 1887. It appeared that after 1887 (no definite time is fixed) the city levied assessments for the improvement of Washington street, which runs east and west along the northern end of the strip, and made a map for the assessment of the improvements of Washington street. On the map the strip was shown to be the land of Niles, and not a street, and was assessed to Niles. The sidewalk was curbed along the south side of Washington street and along the thirty feet at the northern end of the strip. It does not appear that the premises claimed to be a street have ever been improved, graded or accepted by the public authorities.
In our opinion the evidence wholly fails to show that the strip was ever dedicated or abandoned to the public as a street.
We advise that the judgment and order be reversed.
Britt, C., and Haynes, C., concurred.
Harrison, J., Garoutte, J., Van Dyke, J.
