100 F. 348 | 9th Cir. | 1900
Lead Opinion
The appellant was the complainant in a bill in equity, in which he alleges: That he is the owner in fee simple and entitled to the possession of a certain described parcel of land situated within the corporate limits of the city of San Francisco. That on July 2, ,1852, under the provisions of the act of congress approved March 3, 1851, entitled “An act to ascertain and settle private land claims in the state of California,” the city of San Francisco filed its claim before the board of land commissioners organized and acting under said act for a tract of land four square leagues in quantity, as- successor to the former Mexican pueblo established at the site of said city, and also by virtue of a cession from the supreme government of Mexico theretofore made to the said pueblo, and prayed that its said claim be confirmed. That said petition and claim was thereafter duly transferred to the circuit court of the United States for the Northern district of California, and on May 18, 1865, said court rendered a decree confirming to the city of San Francisco four square leagues of land within its city limits, including the land in controversy in this suit, subject to deductions of such lands as had been reserved or dedicated to public use by the United States, and such parcels as had been confirmed to parties claiming the same by the tribunals of the United States; the decree concluding with these words: “This confirmation is in trust for the benefit of the lot holders under grants from the pueblo, town, or city of San Francisco, or other competent authority, and, as to any residue, in trust for the use and benefit of the inhabitants of the city.” That on June 20, 1884, a patent issued from the land department of the United States to the city of San Francisco upon the trusts named and set forth in the decree of court aforesaid, with the habendum clause therein: “To have and to hold the said tract of land, with the appurtenances, unto the said city of San Francisco, its successors and assigns, forever.” That-the lot in controversy is a part of said pueblo land claimed as such by said city before said land commission and in said circuit court, and confirmed to the city in trust for the beneficiaries specified in said decree. That the defendant is the legal successor of said city of San Francisco, and is subject to and bound by all the trusts, duties, and obligations imposed on said city by said decree. “That through his grantors the complainant is the lot holder of said lot under said grants from defendant’s municipal predecessor, said confirmee, said city of San Francisco.” That in July, 1850, the complainant’s grantors and predecessors in interest entered upon and took possession thereof, and since said date continuously until 1895 maintained ex-
The sole question presented on the appeal is whether or not there was error in sustaining the demurrer. It is true that the bill contains all the essential averments of an action in ejectment. It alleges title in fee simple, and a present right of possession in the complainant, and a wrongful entry and detention of the possession by the defendant. Upon these allegations alone, if the bill contained no further averments, the legal remedy would undoubtedly be sufficient, and no ground for recourse to equity would be presented. But the allegation that the complainant owns in fee simple the disputed premises is qualified by other averments of the bill. It is shown therein that the claim of ownership in fee simple is based upon an adverse possession, which is alleged to have been maintained for a period of 44 years. There must be imported into the allegation of ownership in fee simple by adverse possession the law' which is applicable to such a claim of title when it is asserted against a municipal corporation. While it is the rule of law in some of the states that adverse possession of real property which has been dedicated to a public use, or which is held and claimed by a municipal corporation for a street or park or for a public building, if continued for a sufficient period of time, will operate to establish title in the possessor, in California the rule is otherwise. It is
Concurrence Opinion
(concurring). The bill in this case, rightly construed, does not, in my opinion, show that the complainant, or any of his predecessors in interest, ever had any grant from the pueblo or city of San Francisco, but, on the contrary, that the complainant’s alleged rights to the lot of land in controversy are based entirely upon a possession thereof held by him and his predecessors in interest in hostility to all the world, including the pueblo and city of San Francisco. The bill .does not, therefore, show that the complainant, or any of his predecessors in interest, is, or ever was, a beneficiary of the. decree of confirmation entered in the United States circuit court on the 18th day of May, 18G5, under and pursuant to the act of congress of March 3, 1851. It therefore fails to show any equity in the complainant for the cognizance of a court of equity, and hence the demurrer was properly sustained, and the bill properly dismissed, by the court below.