People v. Hibernia Savings & Loan Society

McFarland, J. This action was brought to require defendant to remove certain obstructions from an alleged street called Olive Avenue, in the city of San Francisco, running from Larkin Street, westerly, to Polk Street, through the center of block 9 of the Western Addition, between Ellis and O’Farrell and Larkin and Polk streets, and being of the width of thirty-five feet, and to have said Olive Avenue adjudged to be a public highway. Judgment went for plaintiffs in the court below, and the defendant appeals from the judgment, and from an order denying a new trial.

Practically the only question in the case is, whether or not the findings of fact are justified by the evidence; for those findings clearly support the conclusions of law and the judgment, and the assigned errors of law occurring at the trial are unimportant.

The court finds, in brief, that in the year 1861 Jacob Beideman was the owner of the premises described in the complaint, and of the northerly half of said block 9, which was 275 feet wide from O’Farrell to Ellis streets; that in January of that year Beideman made and filed in the recorder's office a map of lands, including said block 9, upon which the premises described in the complaint were delineated as a street thirty-five feet wide, called thereon Olive Avenue; and that upon said map said Beideman indorsed and signed the following: “The county recorder of the city and county of San Francisco will please file in his office the above map or plan of the Beideman tract of land, according to which I shall hereafter make all sales and conveyances.” It is further found that in said year—1861 — Beideman inclosed the said northerly half of said block by fences, and as the southerly boundary thereof constructed a fence running [636]parallel with O’Farrell Street and at a uniform distance southerly therefrom of 120 feet, throughout the length of the block, from Larkin to Polk; that said fence was maintained in that position by Beideman and his grantees continuously thereafter until the year 1870; “ and that thereby the premises in controversy herein to the width of thirty-five feet were, by said Beideman and his said grantees, thrown open to public use as a public street or highway”; and “that continuously from said year 1861, until the year 1870, the said premises, to the said width of thirty-five feet, were continuously used by the general public as a street or highway.” It is further found that the premises in controversy were delineated as a street on the two official maps known as the City Engineer's Map, and the Humphrey’s Map, no name to the street being given on the former map, but being designated as Olive Avenue on the Humphrey’s Map. The former map was approved and adopted by the board of supervisors in January, 1866, and the latter in October, 1870. And the court finds that by the acts aforesaid the said Olive Avenue was dedicated and .accepted as a public street or highway. The obstructions complained of were placed on the said street, as found by the court, in the year of 1883. These facts being taken as true, it is clear that the conclusion of the court, that Olive Avenue is a pmblic street, and the judgment following that conclusion, is correct, under all the cases and authorities cited by counsel.