City of National City v. Dunlop

MUSSELL, J. pro tem.

This is an appeal from a judgment for defendants in an action brought by the city of National City, a municipal corporation, to eject defendants from certain real property and to enjoin them from occupying or using the said land.

The complaint alleges that at the time the present action was commenced, and for many years prior thereto, the land in question was a public street within the plaintiff municipality; that plaintiff city is the owner and entitled to possession thereof, and that defendants have entered upon and have exercised exclusive possession and control over said land. The defendants admit occupancy of the property. They allege they have made improvements thereon and will continue to occupy the same, and that the land is not a public street but is their private property.

Findings of fact and conclusions of law having been waived, the trial court rendered judgment denying an injunction and that plaintiff have no relief upon its complaint.

The property involved herein was a part of 24th Street in the city of National City. The street had been regularly dedicated but the portion which is the subject of this action was never physically open or used as a street.

The city council of plaintiff city passed a written resolution on the 29th day of June, 1943, which resolution contained a recital that because of existing emergencies and the necessity for closing the street, it was to the best interest and further

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anee of the war effort and because the said street was unnecessary for present or prospective public street uses, that that portion of 24th Street lying between Blocks 280 and 281 and between the westerly line of Cleveland Avenue and the easterly line of Harrison Avenue, was thereby vacated and closed, subject to divestment as thereinafter set forth. The resolution contained the following provision:

“Be it Further Resolved that in the event said National City Dehydrating Company, or its assigns and successors and the said Stewart & Bennett, or their assigns and successors fail to operate a substantial commercial enterprise upon the said demised premises or a major portion thereof for a period of five years from the date of this resolution, then, and in that event, the deeds, which are executed simultaneously herewith by the said National City Dehydrating Company and the said Stewart & Bennett to the City of National City, and which deeds are in escrow with said city shall be immediately recorded. In the event said conditions are fulfilled for a period of five years, said deeds shall be delivered to the said National City Dehydrating Company, a corporation, or its assigns or successors, and the said Stewart & Bennett, and said vacation and closing shall be absolute.”