City & County of San Francisco v. Bradbury

Harrison, J. Action of ejectment to recover possession of an engine lot reserved to the city of San Francisco by virtue of the Van Ness ordinance. The case was tried by the court without a jury, and judgment rendered for the plaintiff for a portion of the land sued for, and in favor of the intervener for the remainder. A motion for a new trial was made by the defendant Bradbury, and denied, and from this order, as well as the judgment, he has appealed. The court finds as facts in the case, that the land sued for had been reserved for public use as a fire-engine lot, and that the defendant Bradbury unlawfully entered into possession of it in the year 1874, and had ever since deprived the plaintiff of its possession. The appellant assails the findings, upon the ground that the evidence before the court was insufficient to justify it in finding that the lot had been reserved for public use, and insists that upon the finding of an adverse possession in favor of the appellant he was entitled to judgment in his favor. The objection to the finding that the lot in question had been reserved for public use is twofold, viz.: It is claimed that the evidence was insufficient to show that by virtue of the ordinance there had been a reservation of any engine lots whatever; and further, that there was no sufficient evidence that the lot in question was one of those attempted to be reserved. .

For the purpose of establishing the reservation, the plaintiff offered in evidence the several ordinances of the common council, and the map prepared in pursuance thereof, known as the “Van Ness map.” These ordinances [416]and the map were validated by the legislature in 1858 (Stats. 1858, p. 52), by an act in which the ordinances are set forth at length, and all courts are directed to take judicial knowledge of them, “ without further proof, as if they were public acts of the state legislature.” And in Sawyer v. San Francisco, 50 Cal. 370, it was held, that “ the act of the legislature of 1858 operated to impart validity to the reservations as defined and delineated on the map reported by the commission.” In addition to this, there was in evidence before the court the report accompanying the map, made by the commissioners who had been appointed by the common council to make the selection of lots to be reserved, and under whose directions the map had been prepared, and also the testimony of two of the commissioners. The map was prepared upon a scale of three hundred feet to the inch, and upon it block 56, within which the lot in question is located, is delineated with six subdivisions, which, as the map was originally prepared, were designed to represent fifty-vara lots. Within the middle one of the three of these subdivisions which front on Bush Street are two parallel lines, apparently in or near the middle of the lot, and running northerly from Bush Street through the lot. After the map had been prepared, Van Ness Avenue was widened by taking portions of the adjacent blocks, and the portion taken from block 56 was taken from the outer lots in the block, leaving the middle fifty-vara lot of its original dimension. There was nothing upon the map to indicate specifically that the lot in question was one of those reserved. The commissioners, however, who had been appointed under the provisions of section 8 of the Van Ness ordinance to make selection of “ sites for schoolhouses, hospitals, fire-engine houses, and other public establishments necessary and proper for the use of the corporation,” as provided in section 6 of the ordinance, stated in their report aforesaid that they had adopted the map then presented by them (the Van Ness map above named), and (with other recitals) that “the number of lots selected for fire purposes is twenty-five (25), their