People ex rel. Chandler v. Smith

Garoutte, J. This is an action by the people on the relation of R. D. Chandler to abate a nuisance.

It is alleged in the complaint that the land upon which the building stands is part of a public street in the city of San Francisco, known as Oregon Street; that defendant placed the structure in said street on or about July [4911], 1885, and ever since has unlawfully kept and maintained the same. The defendant denied that the land on which the building stands ever became a public street, by dedication or otherwise; averred that he was the owner in fee of the premises described, and entitled to the use and enjoyment of the same; and for a further answer, alleged that for more than seventeen years immediately prior to August 18, 1877, he had been in the actual, open, peaceable, and exclusive possession of the property; that on said last-named day the city and county of San Francisco, falsely pretending that the premises were included within the limits of the public street called Oregon Street, wrongfully entered upon the premises and ousted him therefrom; that thereafter he commenced an action against said city and county to recover the possession of the premises; that in the answer filed therein the defendant claimed that the premises in controversy had been dedicated to public use as a street; that on May 14, 1880, a judgment was entered in said action in favor of the plaintiff herein, and against the city and county, for the possession of the land; that the court adjudged therein that neither the state of California nor the city and county of San Francisco dedicated the premises to public use; that an appeal was taken from the order of the court refusing to grant a new trial, but said appeal was dismissed on May 22,1885, and the judgment thereupon became final; that on June 14, 1885, this defendant was placed in possession of the premises by the sheriff, and has ever since remained in possession, and erected a valuable building thereon. For further answer, the defendant alleged that he was in actual, open, exclusive, and notorious possession of the premises, claiming in good faith to own the same for many years before any action was taken by the city and county of San Francisco or the state of California in the matter of laying out, opening, or dedicating the land in controversy as a public street.

At the trial, among other matters, the defendant introduced in evidence the judgment roll in the action. [492]