Miller v. Fowle

NOURSE, P. J.

These two cases were consolidated for trial. Miller sued Boynton and others to enjoin the construction of a street through his property. Nordstrom sued Miller and others to establish an easement for street purposes through the Miller property. Both judgments were for Miller. The notices of appeal are limited to Fowle, Boynton and Nordstrom and these join in a brief which states the issues to be (1) whether the land involved is in a duly dedicated public street, and (2) whether appellants acquired the right to use the land as a way of necessity.

The facts may be stated briefly. Appellants’ predecessor subdivided a tract of land and prepared and filed a map showing lots, streets and public parks, approximately nine-tenths of which lay in the city of Oakland, and one-tenth in the city of Berkeley. The land in dispute is in that part of the tract within the city of Berkeley.

The city council of the city of Oakland accepted the map as presented and purported to accept the proffered dedication of all the streets and public places designated on the map. However, the city council of the city of Berkeley refused to accept dedication of the portion lying within its boundaries and the map was accordingly changed (by the use of red lines) to limit the tract to that portion only which lay within the Oakland city boundaries. As so corrected the map was then recorded as required by the provisions of the Map Act (Stats. 1913, p. 570) (N. B. The original Map Act of 1907 was amended by Stats. 1913, p. 568, and Stats. 1915, p. 1512. The existing law is found in Bus. & Prof. Code, § 11500 et seq. The law applicable to these proceedings is found in the amendments to the Map Act of 1913 and 1915.) The conceded facts upon which the decision must rest are that, though the council of the city of Oakland by resolution accepted the entire map

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showing portions of the proposed subdivision within the city of Berkeley, the Berkeley council refused to accept the map— and hence refused to accept dedication of the public ways— and the map was then altered and recorded with the portions lying within the Berkeley limits encircled by a red line to show deletion.

The principal questions of law arising from these facts are two—first, was there a common law dedication of the streets in the city of Berkeley and second, was the council of the city of Oakland empowered to accept those streets lying within the city of Berkeley boundaries?