City of Monterey v. Malarin

Fitzgerald, J. This is an action by the city of Monterey, a municipal corporation, to abate an alleged public nuisance caused by the obstruction of an alleged public highway of that city, and to enjoin the defendants from further maintaining the same. The complaint in substance alleges that plaintiff is the owner and entitled to the possession and control of the laud therein described, and that the same is a public street within its corporate limits; that defendants have erected and maintained upon said street certain buildings and fences which obstruct the street and are a nuisance. These allegations are specifically denied by the answer. Defendants had judgment, and plaintiff appeals upon the judgment roll alone.

The court in its decision found: —

*‘2. That plaintiff was not at the time of the commencement [292]of this action, nor at any time before or since, the owner, or entitled to the possession or control of the strip of land described in plaintiff’s complaint, or any part thereof.

“ 3. That the defendant, Maria Malarin, is the owner in fee-simple of the tract of land described in the complaint, and that the other defendants herein occupy and possess said tract as the tenants of said defendant, Maria Malarin.

“ 4. That the defendant, Maria Malarin, and her grantors have been in the actual, open, notorious, exclusive, continuous, and adverse possession of all of the laud described in the complaint herein, as owners, and have exercised acts of ownership over the same since 1870, and have during all that time built, kept, and maintained valuable buildings and improvements on the same.

“ 5. That such buildings' and improvements have, during all the time since the year 1870, been by said defendant, Maria Malarin, erected and maintained in such a manner as to entirely obstruct and prevent any use of the land described in the complaint, or any part thereof, as a public street or highway.

“6. That that portion of the land set out in the complaint described as follows, to wit: (description omitted), was open and unenclosed, and was a convenient way of travel for the public from Alvarado to Tyler Street, and it was traveled and used continuously and uninterruptedly by the public as and for a public highway or street in said city of Monterey for more than twenty years immediately prior to the year 1870, and the same was known as Spence or Pence Street, but since the year 1870 no part of the said land has been traveled over or used in any respect by the public as a street or otherwise; that neither the board of supervisors of Monterey County nor the city authorities of Monterey city have ever accepted the said laud as a street, or road, or highway.