Potrero Nuevo Land Co. v. All Persons

Appellant brought its action under the McEnerney Act to establish its title to certain beach and water lots in the city and county of San Francisco. By the act of March 26, 1851, the legislature granted to the city of San Francisco the use and occupation of said land for the term of ninety-nine years from the date of the act. Under the statute of May 18, 1853 (Stats. 1853, p. 219), commissioners were appointed who should sell, and did sell, the remaining interest of the state in these lots "after the expiration of the estate or term granted or mentioned in the act of 1851." Plaintiff is the purchaser of the fee disposed of by the state in subordination to the ninety-nine-year term, tenancy, or estate, and will not be entitled to actual possession as contra-distinguished from any constructive possession, through the tenants of the ninety-nine-year term, until March 26, 1950. The court sustained a general demurrer to the complaint and dismissed the action. Plaintiff appeals and there are presented for consideration two questions: 1. Whether under the facts stated plaintiff had a possession sufficient to satisfy the requirements of the McEnerney Act (Lofstad v.Murasky, 152 Cal. 64, [91 P. 1008]), and so to entitle it to prosecute this action; and, 2. Whether the affidavit required to be filed with the complaint satisfies the act, which exacts that such affidavit shall fully and explicitly set forth "the character of his (plaintiff's) estate, right, title, interest or claim in and possession of the property, during what period the same has existed and from whom obtained."

The McEnerney Act was emergency legislation, containing certain novel features. It is not, of course, to be condemned for these reasons, but they are sufficient to demand of the *Page 733 court scrupulous care in considering the provisions when the provisions themselves are attacked, or request is made that construction should be given to them. For these reasons a rehearing was granted from the Department decision.

1. A fundamental provision of the act is that it is available only to such person as "by himself or his tenant or any other person holding under him is in the actual and peaceable possession of the land." Can it be said that the relation of landlord and tenant, within the meaning of the McEnerney Act, exists between the owner of the reversionary fee and the owner of the ninety-nine-year term? In the very broadest acceptation of the meaning of the phrase "landlord and tenant" that relationship may be said to exist. But the question is whether it exists within the purview of the act. Thus Smith in Landlord and Tenant, after mention of the fact that under the common law every one is a tenant, since there is no allodial property, proceeds as follows: —