People Ex rel Bryant v. Holladay

Ross, J. — This action was instituted at the relation of A. J. Bryant by the attorney-general of the state, in the name of the people, to cause the removal from a tract of land, designated upon the map of the city and county of San Francisco as Lafayette Park, certain buildings and fences maintained thereon by the defendants. The complaint alleges that the land in question was “heretofore, to wit, on the eleventh day of March, A. D. 1858, by the lawful owner and holder thereof, lawfully dedicated to public use as a public square by the name of Lafayette Park, and such dedication accepted by the public, and then was, and still is, laid down upon the official map of said city and county as a public square as aforesaid.” It is also averred that the defendants maintain buildings and fences on the land, which constitute a public nuisance.

In their answer, the defendants admit the maintenance [442]of the buildings and fences, deny that the land ever was dedicated to public use, or that it ever was a public park; and in addition, set up in bar of the action the judgment given in a certain action commenced by the attorney-general on the 16th of November, 1863, in the name of the people at the relation of George T. Bohen, against the defendants and their predecessors in interest.

The complaint in that case averred that the said tract of land called Lafayette Park had been theretofore dedicated and accepted by the public as a public square; that the defendants were erecting and maintaining fences and other improvements thereon, and asked that those erected be removed, and defendants be enjoined from erecting or maintaining others. On the 27th of November, 1863, the defendants filed their answer in the action, in which they denied the alleged dedication, and averred title in themselves to the premises. The issue thus joined was on the 21st of April, 1864, submitted to the late Fourth District Court for its decision, and on the 11th of July, 1864, that court rendered its judgment, by which it was adjudged that no such dedication as was alleged in the complaint was ever made, but that, on the contrary, the property in question was, at the time of the commencement of that action, and at the time of the trial thereof and judgment therein, the private property of the defendant Holladay.

The question now before us is, whether or not the judgment just referred to is a bar to the present action. It is urged on behalf of the people that this cannot be so, because at the time the former action was commenced, and at the time issue therein was joined, the legal title to the land was in the government of the United States, and did not pass from it until the passage of the act of Congress of July 1, 1864, and then only in trust for the uses and purposes specified in the ordinances of the city and county of San Francisco, which were ratified by the act of the legislature of date March 11, 1858.