City of Visalia v. Jacob

The Court. The action is to recover the possession of certain lands, and was commenced November 24,1883. The complaint avers that plaintiff, on the 27th day of February, 1874, was seized in fee of “all that part of Centre Street (describing it), and ever since that time has been, and still is, seized of and [435]entitled to the possession of said land, the same being a portion of a public street duly laid out and dedicated to the public use.” That on the 28th of February, 1874, defendant entered into possession of the demanded premises, and thence hitherto has withheld, and still unlawfully withholds, the possession thereof, etc.

Defendant demurred on the ground that the complaint showed the cause of action was barred by the Statute of Limitations. Defendant also demurred specially that the complaint was ambiguous, unintelligible, and uncertain, in that it did not appear therefrom when the lands were laid out and dedicated as a public street. Defendant also demurred generally. The court below sustained the demurrers, and plaintiff declining to amend, a judgment was entered in favor of defendant, from which plaintiff appeals.

If, construing the complaint more strongly against the pleader, it only shows that the street was dedicated at some time before the action was commenced, the judgment or order upon the special demurrers was proper. So" construing the complaint, it would not appear but defendant had adverse possession for more than five years before the lands were dedicated as a public street. But aside from the fact that lands actually possessed adversely cannot be dedicated to the use of the public by their owner, the language of the complaint plainly avows that the lands were a public street, laid out and dedicated as such, from the 27th of February, 1874. The rule that an averment is to be taken more strongly against a pleader, does not authorize the courts to deprive language of its ordinary signification.

It is urged by respondent, that the fact that the lands were dedicated as a street does not deprive the defendant of the benefit of his five years’ adverse possession.

An occupation and obstruction of a public street is a nuisance, and every continuance of that which was originally a nuisance the law considers a new nuisance, to abate which an action may be brought on behalf of the public, or by a private person specially injured. As against such an action, no one can acquire a defense by adverse occupation. It was so held with reference to a street over lands not included within those covered by the Van Ness ordinance in San Francisco. (The People v. Pope, 53