Kittle v. Pfeiffer

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action to enjoin the defendants from erecting and constructing buildings and other obstructions in certain streets in the City of San Francisco, known as “ Belle Air Place ” and “ Pfeiffer Street.” The Court below, after the trial of the issues raised by the parties, rendered a judgment dismissing the complaint, and for costs against the plaintiff, from which he appeals.

From the record in this case it appears, that on the twenty-fourth day of October, 1854, J. L. Folsom and the defendant, William A. Pfeiffer, conveyed, by quitclaim deeds, to the City of San Fran[488]cisco, certain strips of land, to be forever kept open as public highways, under the name of “ Belle Air Place ” and “ Pfeiffer Street,” which deeds were duly recorded; that on the first day of October, 1855, the defendants, Pfeiffer and wife, mortgaged to the plaintiff’s testators, fifty-vara lot numbered 1,494, described as commencing at the south-east corner of Stockton and Francisco streets; running thence easterly one hundred and twenty-two feet and six inches to “ Belle Air ” Street; thence southerly along Belle Air Street one hundred and twenty-two feet six inches to “ Pfeiffer ” Street; thence westerly along Pfeiffer Street to Stockton Street; thence to the place of beginning—to secure the sum of ten thousand dollars ; that the mortgage was duly acknowledged and recorded, and on the-day of February, 1857, the plaintiff’s testators obtained a decree against said defendants, Pfeiffer and wife, foreclosing the mortgage, under which decree the mortgaged premises were duly sold and purchased by and finally conveyed to, plaintiff’s testators, who went into possession under the Sheriff’s deed, and they and the plaintiff have continued in possession ever since; that there is on the lot a brick building erected by Pfeiffer, standing on the corner of Francisco Street and Belle Air Place, with windows to light the same opening on Belle Air Place; and that the defendants commenced the erection of a building within the boundaries of Belle Air Place, along side of said brick building and obstructing said windows, and have also erected buildings and obstructions bn Pfeiffer Street, and they threaten to inclose and totally obstruct said streets.

It also appears by the findings of the Court that the City of San Francisco or the public never accepted said conveyances, and that said strips of land were never opened or used by the city or public as streets or highways. It also appears that prior to these deeds to the city, the defendants occupied the two fifty-vara lots 1,493, and 1,494, which include the premises claimed as streets, residing thereon with their family, claiming the same as a homestead; that the wife never executed the deeds to the city, and they claim the premises as their homestead.