20 P. 708 | Cal. | 1888
This action is brought to compel the defendants to remove obstructions from an alleged public street in the city of San Jose. The plaintiff alleges and the defendant denies that the land upon which the obstructions are maintained is a part of a public street. Upon that issue the court below found in favor of the plaintiff and against the defendant, and rendered judgment accordingly. From the judgment this appeal is taken. The contention of appellant is that the findings do not justify the judgment. Whether the facts found justify the conclusion that the" land in controversy was dedicated and accepted as a public street is the question to be determined on this appeal. The facts found are substantially as follows:
In 1862 appellant was the owner of a Certain tract of land in San Jose, and in that year caused the same to be surveyed into streets and blocks, and said blocks to be divided into lots, the streets being designated by names, and the blocks and lots by numbers, on a plat or map prepared by the surveyor. Between the years 1862 and 1877 appellant sold and conveyed to divers persons lands within the tract so surveyed and platted as aforesaid. One of the streets designated on said plat or map was Divine street, running from First street to Terraine street, through North Market and San Pedro streets. But said Divine street, or so much thereof as lies between said North Market and San Pedro streets, has never been used or opened as a public street; and for a period of more than twenty years before the commencement of this action there was a barn and shed thereon, inclosed by a substantial fence, which effectually and completely prevented any use thereof as a public street. There was no formal or other acceptance of said alleged street prior to the passage of an ordinance on the twelfth day of December, 1884, directing the street commissioner of said city to demand the possession of the strip of land claimed to have been dedicated as aforesaid, and to remove all obstructions therefrom, and to throw the same open for public use.
Are the facts found sufficient to constitute a dedication of the land in controversy to a public use? We think not. In the leading case in the United States on this subject, the court says: “There is no particular form necessary in the dedica
We think the facts found insufficient to constitute a dedication or acceptance, and that if there had been a dedication it was revoked before there was any acceptance of it.
Judgment reversed, with directions to the court below to enter judgment for defendant upon the findings.
We concur: Searls, C. J.; McFarland, J.; Paterson, J.