Sawyer v. City & County of San Francisco, No. 3845

No. 3845 | Cal. | Jul 1, 1875

By the Court:

1. The notice of intention to move for a new trial was served in time. The cause had been tried by the court; no written findings had been filed; the decision had been rendered in open court January 3, 1871; notice of intention to move for a new trial was served and filed by the attorney for the city December 31, 1872. The city had the right to give the notice “within ten days after receiving mitten notice * * * of the rendering of the decision of the court.” (Act 1865-6, p. 845, Sec. 6.) Ho notice of the rendering of the decision of the court had been served upon the attorney of the city at the time the latter gave the notice of intention to move for a new trial, and, therefore, the ten days limited by the statute for the giving of such notice had not run, nor commenced to run.

2. The premises in controversy are a part of “Alta Plaza,” and the only distinction claimed by the respondent to exist between this case and that of Hoadley v. San Francisco (ante, p. 265), consists in the fact that in laying out the plaza in question more than one-twentieth of the land then in possession of Woods and Clayton, from whom the plaintiff derives his title, was taken by the city without compensation made to those persons, as provided in the sixth section of the act of March 11, 1858, entitled “An Act concerning the city of Ban Francisco, and to ratify and confirm certain ordinances of the Common Council of said city.”

It appears, however, that “Alta Plaza” (including the premises in controversy), was delineated (according to its present boundaries), upon the map reported by the commission consisting of Gough, Hayes and Hoff, and adopted by the board as showing the lines of the" reservation mentioned in the ordinances referred to. The act of the Legislature of 1858, already mentioned, operated to impart validity to the reservations as defined and delineated on the map reported by the commission. The map, as thus approved by the legislative authority, became the distinctive designation of the public squares in fact reserved to the city, and it is of no legal consequence that, in point of fact, more than one-twentieth of lands in the possession of any person was thus reserved without compensation made.

The legislative intention to make the reservation is clear; the failure upon the part of the city to make compensation wrought no injury to private persons, for the city took nothing from them, but only reserved a part of what was already hers.

Order denying a new trial reversed as of the day of submission of the cause in this Court, and cause remanded for a new trial