Griffiths v. Galindo

Works, J. — This is an action for damages for an alleged trespass upon lands in entering upon the lands of the plaintiff and tearing down a fence situate thereon. The defendant, in his answer, justified, on the ground that the land where the fence was situate was a public street, and the fence an obstruction thereof; that he was road overseer of the district, and under an order of the board of supervisors of the county, removed said fence as an obstruction to the street. The whole question in the case is, whether the land in controversy had been dedicated to and accepted by the proper authorities or by user as a public highway. The owner of an entire tract of land, including the property owned by the plaintiff at the time this action was commenced, caused the same to be surveyed and laid off into lots and streets, and a map to be made thereof. He subsequently sold some of the property at public auction, and the plaintiff became the purchaser of three of these lots. At the time the sale was made, the map had not been filed in the recorder’s office, but it was so filed before deeds were made to the purchasers, and the lots purchased by the plaintiff were described as “those certain lots, pieces, and subdivisions of land, being portions of the government or Gwin ranch, in said Contra Costa County, as subdivided, laid out, and surveyed for J. Rosenthal and G. Bates, in Septem[195]her, 1884, by T. A. McMahon, county surveyor, and as per map and survey thereof filed in the office of the county recorder of said county on the eighth day of November, 1884, and which said lots and subdivisions of land are known and therein designated as lot No. forty-six (46), as lot No. forty-seven (47), and lot No. forty-nine (49).”

The deed also described each of these lots separately, by metes and bounds, running to the centers of the streets designated on the map, and designating them as such streets. While, as we have said, this map was not filed in the recorder’s office at the time of the sale, it was on the ground at the time, and the attention of all purchasers was called to it, and they were notified that when they purchased the lots designated on the map they purchased and paid for the lands to the centers of the streets designated on the map as bordering on such lots. A number of other persons, besides the plaintiff, became purchasers at the same sale and under like circumstances. The street bordering on the plaintiff’s land was used by the public as a street, but not exclusively, or by a great number of people. The plaintiff, claiming that he had bought the land to the center of the street, constructed a fence in the center thereof, and cultivated one half of the street. The board of supervisors ordered the street to be opened, and all obstructions removed. The defendant, as road overseer of the district, and acting under this order, took down plaintiff’s fence and removed it from the street; and this is- the alleged trespass complained of. The court below found that the land had been dedicated for and accepted as a public street, and found for the defendant. A new trial was denied, and the plaintiff appeals.