People ex rel. Britton v. Park and Ocean Railroad

Searls, C. J. This action was brought to abate an alleged nuisance, and to procure an injunction. Defendants had judgment in the court below, from which, and from an order denying a new trial, plaintiff appeals.

The action was instituted by the attorney-general, in the name of the people of the state of California, on the relation of J. Britton, a citizen of the state, and a resident and tax-payer of the city and county of San Francisco, against the Park and Ocean Railroad Company, and the Pacific Improvement Company, — the latter defendant was, at the commencement of the action, engaged for the other defendant in the construction of the railroad sought to be condemned as a nuisance, and abated as such.

The city and county of San Francisco, was permitted to intervene in the cause, and filed its complaint of intervention, in which it substantially joined with the defendant in its statement of facts, and in resisting the relief sought by the plaintiff.

Golden Gaté Park is one of the public parks within the limits of the city and county of San Francisco. It extends from Stanyon Street on the east to the Pacific Ocean on the west, and is bounded on the south by H Street.

The railroad in question commences on Stanyon Street, runs south along the same a short distance, curves to the west across the southeast corner of the park to H Street; thence west along said last-named street to a point near the ocean; thence north across the park; thence across private property, to its terminus on the ocean beach, near the Cliff House, a distance in all of four miles.

The city of San Francisco, under the act of Congress [159]of March 3, 1851, presented its claim for confirmation of its title to the pueblo lands to the commissioners, and in due course of proceedings a decree was entered in the circuit court of the United States for the district of California, confirming the claim of the pueblo. From this decree an appeal was taken to the supreme court of the United States, pending which two acts of Congress were passed relinquishing the title of the United States to the lands described in the decree of confirmation, namely, the act of July 1, 1864 (13 U. S. Stats, at Large, 333, sec. 5), and the act of March 8,. 1866 (14 U. S. Stats, at Large, p. 4).

Under the provisions of this last act of Congress, the city authorities adopted what is known as order No. 800, providing for the disposition of the lands not theretofore disposed of, the title to which was confirmed under these several acts of Congress, and this order was approved and confirmed by the act of the legislature of March 27, 1868. (Stats. 1867-68, p. 379.)