Ferroggiaro v. Board of Public Works

NOURSE, J.

Plaintiff instituted this proceeding against the board of public works of the city and county of Sari Francisco, and the members thereof, and the city and county of San Francisco, a municipal corporation, to restrain them from interfering with his possession of a certain strip of land situated in said city and county and appearing upon the map thereof as portions of Keith Street and Egbert Avenue. The complaint alleges that plaintiff is the owner of a lot of land which is described therein by metes and bounds, being bounded in part by the two streets in question, and referring to a map of the Bay View Homestead Association alleged to have been filed in the office of the county recorder of the city and county of San Francisco June 19, 1872. As to that portion

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of the land designated upon the map as Keith Street and Egbert Avenue, it is alleged that plaintiff is the owner in fee and that he has been in the open, notorious, and continuous possession thereof through himself and his predecessors for a period of fifty years last past. A windmill and some outhouses are alleged to have been constructed and maintained on those portions of the land designated as streets during all the period of plaintiff’s possession, and the injunction was sought to restrain the defendants from removing these structures. The defendants answered, alleging, among other things, that the portions of said streets in controversy are parts of open and public streets of the city and county of San Francisco, duly dedicated and accepted as such. The court found that the land upon which the structures were erected was a part of what was designated on the map of the city and county of San Francisco as Keith Street and Egbert Avenue, and that said streets were never dedicated as public streets and never accepted or used as such by the city and county of San Francisco or the public thereof. The court also found that plaintiff had been in the open, notorious, and continuous possession of said property for a period of fifty-four years last past and that during said period the plaintiff and his predecessors had occupied and used said premises and maintained thereon the outhouses and the windmill which the defendants were endeavoring to remove. From the judgment in favor of the plaintiff which followed these findings the defendants appeal.

During the course of the trial defendants offered in evidence certain pages , of a map-book from files of the county recorder containing what purported to be copies of a map of the Bay View Tract filed for record on May 23, 1867, and of the map of the Bay View Homestead Association filed for record June 17, 1872. , Plaintiff’s objection to the introduction of this evidence on the ground that a proper foundation had not been laid was sustained by the court. Thereupon defendants rested. It is now urged that the court erred" in refusing to admit the map-book in evidence, but even if error occurred it would not avail the defendants anything because the judgment must be affirmed upon the record. The trial court having found that the streets marked upon the map of the city and county as Keith