Alemany v. City of Petaluma

California Supreme Court Jul 1, 1869Published

Before: Cbockett

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Holding. The court held that municipal authorities could not use the Town Site Act of 1864 to convert land already in bona fide private occupation into public streets or squares without the occupant's consent, thereby preserving the occupant's rights under the Act of 1867.

Issues

Whether the demurrer to the answer was properly sustained.
Whether the City of Petaluma could convert land in bona fide private occupation into a public street under the Act of July 1, 1864, without the occupant's consent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“As against the occupant not consenting thereto, the attempt to open a new street through his premises, or to enlarge an old one so as to infringe upon them, or to convert the land in his possession into a public square or park, finds no warrant”

Synopsis

Construction op Pleadings. —The whole pleading must he construed together; and it is not proper to eliminate, a single paragraph from an answer, and give effect to it as a denial, when it appears from the contest, and other portions of it, that the denial was intended to he hypothetical.

Cities and Towns on Public Lands—Policy of Congressional Legislation delating thereto. — In legislating in respect to towns which had already grown up on the public domain, and others thereafter to bo established, Congress had in view two objects, to wit: First—To protect the equitable rights of those in the dona fide occupation of lots in towns already established, and to enable persons to acquire small parcels at a nominal price in towns thereafter to be located ; Second—To enable the inhabitants of the existing or proposed town to establish proper streets, blocks and squares adapted to the particular locality.

Idem—Construction of the Act of Congress of July 1st, 1864.—In attempting to avail themselves of the Act of July 1st, 1864, the Trustees of the Town of Petaluma had no power to change the plan of the town in such manner as to , convert into a street, alley or public square, land which, under the previous existing plan, was a municipal division, intended for private use, and actually occupied for that purpose.

Cbockett, J., delivered the opinion of the Court: The only question for our decision on this appeal is, whether or not the demurrer to the answer was properly sustained. The land in contest is a strip about twelve feet wide and four hundred and six feet eight inches long, which the defendants in their answer aver to be a part of Howard street, in the City of Petaluma. The plaintiff claims that it is a portion of a larger parcel, which for many years prior to the 1st day of March, 1867, and up to the month of May, 1867, was in the actual, exclusive and bona fide occupation of J. B.

[557]Southard, who sold and conveyed the same to the plaintiff after the 1st March, 1867, and in May, 1867, put the plaintiff into the actual possession, and he has ever since remained in possession. On the 1st March, 1867 (Statutes 1866-7, p. 418), Congress passed an Act whereby it relinquished and granted to the corporate authorities of the Town of Petaluma all the right and title of the United States to the lands situate within the corporate limits of the town, “in trust for and with authority to convey so much of said land as is in the bona fide occupancy of parties upon the passage of this Act, by themselves or tenants, to such parties,” excepting from the grant, however, any reservation of the United States, and with a proviso that the grant shall not prejudice any valid adverse right, nor preclude a judicial investigation and adjustment thereof. It is averred in the complaint that at the date of the passage of this Act the land in controversy belonged to the United States, and that Southard, the plaintiff’s grantor, was in the bona fide occupation thereof; and it is therefore claimed that the corporate authorities of the town hold the legal title in trust for the plaintiff, who prays that they be compelled to convey it in execution of the trust. It also appears from the complaint that the City of Petaluma was duly incorporated by an Act of the Legislature, approved April 12th, 1858 (Statutes 1858, p. 140), and that the premises in contest were included within the corporate limits of said city; but it is not averred that said premises formed any portion of a municipal subdivision of said city as incorporated.

That the complaint states a prima facie case for the plaintiff, can admit of no doubt; and it remains to be considered whether any of the material averments are denied by the answer, or sufficiently met by matters in avoidance. It is not pretended that any material averment of the complaint is denied, except the allegation that on the first of March, 1867, the date of the passage of the Act of Congress above mentioned, the land belonged to the United States. In one of its paragraphs the answer denies title in the Government at the time of the passage of the Act; but the whole answer must be construed together, and we cannot eliminate a single

Alemany v. City of Petaluma

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