Wheeler v. City of Oakland

KERRIGAN, J.

By this action plaintiffs claim ownership to a strip of land ten feet in width by four hundred feet in depth, and complain of an alleged trespass upon said property by defendants, and they seek damages for injuries committed and an injunction to restrain a recurrence thereof.

Defendants, a municipal" corporation and its superintendent of streets, justify the acts complained of on the ground that the land in question is a portion of a public street, which it is the purpose and intention of defendants to improve and maintain as such. Defendants claim in that behalf that the ten-foot strip constitutes the westerly portion of Thirty-sixth Avenue, one of the public highways and thoroughfares of the city of Oakland, and base such contention upon the following facts:

On July 19> 1876, one James Lane, being then the owner of the land in dispute and of contiguous territory, granted to Joseph B. Hogarty a lot fifty feet wide by four hundred odd feet in depth, and in this same instrument also conveyed the ten-foot strip adjacent to said lot on its easterly side, with the express limitation that it was to be used for street purposes, this strip being the land now in controversy. The description in said deed also referred to certain lot and block numbers as well as to certain streets, all as contained on a certain map, describing it. On September 24, 1878, Hogarty,

[673]

the grantee in said deed, not having theretofore conveyed any of the property thereby acquired, caused to be filed in the office of the county recorder of Alameda County the map referred to in his deed, on which map were delineated lot and block numbers corresponding to those mentioned in the conveyance to him, and also certain streets called Lane and Washington Streets, together with a delineation of the county road of San Leandro. Thereafter, on the twenty-seventh day of September, 1878, Hogarty granted to Henry C. Edgerly the lot of land fifty feet in width. The land so conveyed was described as bounded on the east by Lane Street with appropriate reference to the map filed by Hogarty. Subsequently and on the tenth day of August, 1883, H. Edgerly' conveyed to one Sandford Bennett the same fifty feet of land which he had acquired from Hogarty. Thereafter, on April 21, 1884, said Bennett made a conveyance to Roseoe Wheeler, plaintiff herein, purporting to grant a lot sixty feet in extent, which included not only the land acquired by him from Edgerly and to which he had record title, but also the ten-foot strip here in dispute, to which he had no title whatever. Roseoe Wheeler and his various successors in interest have claimed title to the entire sixty feet at all times since April, 1884, have maintained a fence inclosing the whole thereof until the commission of the acts here complained of, and have paid taxes thereon.