City of Yuba City v. Consolidated Mausoleum Syndicate

[588]

PRESTON, J.

Inasmuch as this appeal involves merely a-question of fact upon which ample evidence exists to sup-, port the findings made by the trial court, the judgment must be and is hereby affirmed.

The action is by Yuba City, a municipality, against the above-named defendant and appellant to enjoin the obstruction of the free use as a public street of a certain strip of land 30 feet wide and 230 feet long, claimed to be a portion of what is known as Aylor Street, in said town. Plaintiff had judgment as prayed. Admittedly the land lies in the projection of what is conceded to be Aylor Street.

The court found that for five years last past the city had been in possession of said tract of land, had graded and graveled it and spent public funds in the improvement thereof as a public street; that in 1926, by proceedings had under the Improvement Act of 1911, the city had constructed, as a part of its sewerage system, a sewer line along and in the same; that defendant on December 7, 1927, erected a barrier across said right of way, thus preventing its use by the traveling public, and that, unless enjoined by the court, defendant would continue to exclude the city from the use of said street and would indefinitely delay its paving and 'otherwise do great and irreparable damage to plaintiff. The court further found that defendant was not the owner of the area in dispute, and if it had any interest whatever in it such interest was subject and subservient to the right and easement of said city to have and use said strip for street and highway purposes.

. It was stipulated that in 1892 the Sutter City Lumber and Milling Company was the owner of the south half of lot 8 of Teegarden Addition to said city, and in that year subdivided a portion of said south half of said lot, which portion included the area in dispute, which was marked on the map filed by said company as a street. The greater portion of said south half of said lot, however, was not subdivided. The subdivided portion was laid out in streets and lots, lots 4, 5, 6, 7 and 8 thereof fronting upon the south line of said area here in question. On November 2, 1893, said owner conveyed the property to George W. Brown as “Lots 4, 5, 6, 7, .and. 8, according to a Map entitled ‘Plot of the South, half of Lot Eight in the Teegarden Addition to Yuba City’ filed for record November 23rd, 1892, in the office of the