Davis v. Spring Valley Water Works

Morrison, C. J.: This is an action of ejectment to recover a certain tract of land situate in the city and county of San Francisco, and containing about forty acres. The case was tried by the Court, judgment passed for defendant, and plaintiffs moved for a new trial, which was denied by the Court. The appeal is from the order of the Court denying plaintiffs’ motion for a new trial.

The following were some of the findings of the Court:

“ That in 1853 Otis, the grantor of the plaintiffs, erected two fences, which ran easterly across and beyond the Presidio road upon the same lines with the northern and southern fences of the Bird’s Nest, lying west of the road to the eastward. These two fences were united by a third fence, which ran north and south; that these three fences, with a picket fence which ran along the west side of the road, constituted an inclosure. That these fences were built of posts and two boards of irregular widths, placed horizontally from post to post. That this inclosure remained intact but a day or two, when the northern and southern lines were broken down where they crossed the Presidio road. That within a few days said Otis erected another fence of the same character along the western side of the road, which, with those already described, constituted an inclosure.

“ That this inclosure continued in good order until the, summer of 1855.

“That the tract to the east of the road was never applied to any use by said Otis, his successors, or the plaintiffs, or any of their grantors, except that in 1854, on two or three occasions, a pair of work-oxen were turned into the lot for a few days at a time; and that the said last-mentioned tract on the east side of the road are the premises in controversy in this suit. That said premises are situated in the city and county of San Francisco, and within the provisions of the act of the Legislature of the State of California, approved March 11th, 1858, entitled ‘ An Act concerning the city of San Fíancisco,’ and to ratify and confirm certain ordinances of the common council of said city, and under the provisions of the orders and ordinances therein recited and referred to.

[545]“ That the plaintiff Davis, in 1860, erected a good and substantial fence along the northern and southern lines of the larger tract, commencing on the east side of the road, and on the eastern side of the premises in controversy, which continued for two years, and until the entry of defendants; that he did not build any fence along the eastern side of the road, but the tract was left open on the western side, and did not inclose the premises in controversy.