Moody v. Palmer

By the Court, Crockett, J.: The action is ejectment to recover the possession of a parcel of land in the Western Addition to the city of San Francisco. Both parties claim title in fee. The material facts developed at the trial are as follows: In 1852 Dyer and Gladding, who were partners in business, purchased the possessory claim to an uninclosed tract of about eighty, acres of land, and took the deed in the name of Dyer alone. There was at the time a small inclosure upon the tract for a chicken yard. They entered into the actual possession of the part inclosed and continued to hold it until some time in 1853, when they made fences, which, with fences already constructed by others, inclosed the whole tract. Shortly after making the inclosure they laid out the ground in [35]blocks, lots, streets and alleys, and procured a map or plat to be made showing it as thus laid out. One of these streets they named Park avenue. They also, from time to time, sold and conveyed to various persons parcels of the tract, bounding them upon the streets so laid out. In July, 1854, Dyer made conveyances to Simmons and Folsom, and to Bassett, commencing in one deed “at the northwesterly corner of Pine street and Park avenue,” and in the other at the “northeast corner of Pine street and Park avenue,’’and then in each running round to Park avenue, and “ thence at right angles along the Park one hundred and twenty feet to the place of beginning.”

The unsold portions of the tract they used for various purposes until October, 1855, when they dissolved their partnership and divided their property. To make the division, Dyer conveyed his interest in a portion of the tract to Glad-ding, but Gladding made no deed to Dyer, it being supposed by them that the legal title was then in Dyer. Shortly after the division Dyer went away from the land, and never after-wards lived upon or had actual possession of any portion of it. In 1858 the whole tract was laid out by commissioners appointed by the city, into blocks and streets; and some of the streets, including Park avenue, theretofore laid out by Dyer and Gladding, were abandoned and ceased to be used as such. The land in controversy in this action is that which lay in Park avenue, adjacent to the land conveyed by Dyer to Simmons and Folsom and to Bassett, in July, 1854, and also a strip seventeen and a half feet wide at the north end thereof, which was included in a cross-street. The defendants have the title of Gladding to all of the demanded premises, and that of Dyer to all, provided the descriptions in the deeds of the adjoining land are to be regarded as extending to the centre line of Park avenue and of the cross-street. They have also been in the actual possession of the premises since some time prior to 1861.