City of San Francisco v. Calderwood
Before: Sawyer, Shafter
Synopsis
Dedication of Easement.—The passage of an ordinance by the Common Council of a-city, setting apart and dedicating a portion of the waterfront in its harbor for public uso as a free public dock for skips, is a mere offer to dedicate, and the dedication is not complete, nor does the public acquire any right to the easement, until it has been accepted and used by the public in the maimer intended.
Idem.—Such offer to dedicate cannot be accepted by the public in advance of the time of making the offer.
Basement not an Estate in Land.—The dedication of a portion of the waterfront of a city, in its harbor, for public use as a free public dock for ships, gives the public only an easement, and not any estate in the land; and the right to enter upon and possess the space dedicated, subject to the easement, remains in the grantor of the same.
Idem.—The grantee of an easement has no right of entry upon, nor has he any right to possess the land as such. The fee of the soil and right of entry remain in the grantor subject to the easement.
Basement.—The grant to the public of a right to the use of a portion of the waterfront of a city for a free public dock for ships, is the grant of an easement.
Rents of Land on which Easement is Imposed.—The owner of an easement is not entitled by reason of such ownership to a participation in the rents and profits arising from the land on which the easement is imposed.
Different Easements.—There is no distinction between an easement upon land covered with water and one upon land not so covered.
Limitations—Land Subject to Easement.—The fact that an easement- has been created upon land, or that an offer of an casement has been made, but not accepted, does not prevent the Statute of Limitations from being set in motion and running in favor of one who enters upon and claims the soil upon which the easement has been imposed adversely to the grantor of the easement.
Opinion — Shafter
By the Court, Shafter, J.: This is an action of ejectment brought to recover the possession of “ City Slip Lot No. 21.” It is found that the lot is one of the beach and water lots granted to the city by the State by the “ Beach and Water Lot Act” of March 26th, 1851; and that the lot is included within the area described [588]in an ordinance passed by the Common Council of the City of San Francisco on the 4th of November, 1852. The ordinance is as follows : “All the space of land and water lying between Clay street and Sacramento street, and between Davis street and the deep water of the Bay, as laid down upon the public maps and plans of the city, is set apart and dedicated .to the public use as a free public dock for ships and other vessels. Provided, notwithstanding, that nothing herein contained shall prevent the Common Council from amending, altering or annulling this grant.” It is further found that this ordinance remained in force until the 14th day of March, 1864, when it was repealed by the Board of Supervisors of the city and county.
The defendant pleaded the Statute of Limitations, and all the facts essential to the defense were found by the Court.
The findings state as a conclusion of law “ that between the passage of the ordinance of the Common Council of the City of San Francisco dedicating the premises in controversy to the public use, November 4th, 1852, and the passage of the ordinance of the Board of Supervisors of the City and County of San Francisco repealing said dedication of the 14th of March, 1864, and by reason of said first named ordinance, no right of entry in said premises existed in said City and County of San Francisco,” and on the ground of this conclusion the special defense was overruled and judgment was entered for the plaintiff.
The only question to be considered is whether the right of entry was in the City of .San Francisco, and the plaintiff, as its successor, from the passage of the ordinance of 1852 to its repeal in 1864. If the right was in the plaintiff and its predecessor during that interval, then the defendant was entitled to judgment; otherwise the judgment is right as it stands.
First—The ordinance of 1852 did not, in itself considered, deprive the City of San Francisco of any right incident to the title acquired from the State by the grant of 1851. The ordinance was not a dedication, but an offer to dedicate, by which the city could lose nothing and the public could acquire noth
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