City & County of San Francisco v. Itsell

Hayne, C. This was an action of ejectment brought by the city against numerous defendants for a tract of land known as Hamilton Square. As to a number of the defendants, it was found that they “ are not, and were not at the commencement of this action, in the occupation or possession of the premises described in the complaint, or any part thereof.” No question is made as to the correctness of the judgment in favor of these defendants. Judgment passed in favor of the other defendants, upon two grounds, which are set forth in the findings. The plaintiff does not bring up any of the evidence, but contends that the judgment should be reversed upon the findings.

1. In July, 1869, a, compromise was agreed upon between the city and one Edward Tompkins, who claimed, a tract including the premises in controversy. By this compromise the officers of the city, under an ordinance of the board of supervisors, executed to Tompkins a conveyance of the premises in controversy, and in consideration thereof Tompkins conveyed to the city the other portion of the tract claimed by him. The ordinance and deeds were subsequently ratified by act of the legislature. The defendants claim through Tompkins.

We think that this defense cannot be sustained. The city held the square in trust for the public, and had no power to dispose of it by way of compromise or in any other manner; nor could the legislature ratify such a [59]disposition of the trust property. In Hoadley v. San Francisco, 50 Cal. 275, the court said with reference to this same square: “The title was granted to the city in trust for public use, and the city had no authority by virtue either of the statute of March 11, 1858, or of the act of Congress of July 1, 1864, to alienate or in any manner dispose of it, but only to hold it for the purposes expressed in the statute. It was granted to the city for public use, and is held for tliat purpose only. It cannot be conveyed to private persons, and is effectually withdrawn from commerce; and the city having no authority to convey the title, private persons are virtually precluded from acquiring it.” This case was approved and followed in Sawyer v. San Francisco, 50 Cal. 375, and in Hoadley v. San Francisco, 70 Cal. 324, which was affirmed by the supreme court of the United States upon writ of error. (124 U. S. 646.) The rule, therefore, that-the city holds property like this in trust, and cannot convey it, must be considered as settled.

2. The defendants, however, pleaded and proved a judgment brought by their predecessor in interest against . the city, and rely upon such judgment as a bar to the action. And this position must be sustained. It appears that Tompkins conveyed to one Edward F. Palmer, audit is found that on September 11, 1869, Palmer commenced an action against the city in the late fifteenth-district court to quiet his title; that the city appeared and contested said action, and that the issue was, whether Palmer or the city had the title; that this issue was determined in favor of Palmer; and that judgment was thereupon entered, by which it was “ ordered, adjudged, and decreed that the plaintiff, Edward F. Palmer, was at the commencement of said action, and still was, the lawful owner in fee-simple absolute of the premises described in the complaint therein, and that the said defendant, the city and county of San Francisco, had not any estate, right, title, or interest therein; and that