City & County of San Francisco v. Main

RICHARDS, J.

This is an action brought by the city and county of San Francisco to quiet title to a tract of land lying in what was formerly the bed of Mission Creek, between Tenth and Eleventh streets, and forming a part of the southern boundary of the lands of the appellant herein.

The defendant, Charles Main, permitted judgment to go against him by default; but the defendant, "Flora B. MacDermott, appeared, and filed her answer and cross-complaint, wherein she averred that she was entitled to an easement over the lands in question based upon two distinct claims of right, the first being that Mission Creek was and continued to be a navigable stream until a time after the date when her predecessors acquired title to the lands she now owns from the plaintiff herein; and the other claim being that after Mission Creek ceased to be navigable it became, and for some years continued to be, a public street known as Channel Street; that while thus open as a public street the predecessors in interest of the appellant had the right of ingress and egress to and. from the land she now owns along and upon it; and that the said street having been closed without her consent and without payment of the compensation which the constitution provides shall be prepaid when private property is taken for public use, she is still entitled to her right of way over said property.

The plaintiff’s answer to the cross-complaint of said defendant consists of specific denials of its averments, and also of a plea of the statute of limitations.

In so far as the claim of the appellant to an existing right of way over the lands in question is based upon the fact that Mission Creek was once a navigable stream, we think it is fairly deducible from the evidence that Mission Creek had ceased to be a navigable stream prior to December 27, 1867,

[88]

the date when the lands now owned by the appellant first passed from the ownership of the city of San Francisco to James Dows, the original grantee thereof. Whether or not a stream is a navigable stream is a question of fact, at least in the absence of a legislative declaration as to its navigability, and is determinable by its practical utility for navigation during ordinary stages df water at any particular time.