People ex rel. Howland v. Dreher

Searls, C. This is an action to abate a nuisance, alleged to have been committed by defendant by obstructing the south half of a public street for a distance of six hundred and sixty feet, which street is situate in the city of Pomona, county of Los Angeles, California.

The cause was tried by the court without the intervention of a jury, written findings filed and judgment rendered thereon in favor of defendant, from which judgment and from an order refusing a new trial plaintiff prosecutes this appeal.

The court upon the issues made by the pleadings as to whether the street in question had been dedicated and accepted as a public street, found:

That in the month of May, 1887, the locus in quo “was laid out and graded by private citizens, who offered to dedicate the same to the public as and for a public street, but the same was never dedicated as a public street or used or accepted by the public as a public street, or known by the public as Green street, or any street.”

The court further found in substance that in May, 1891, defendant plowed up the south half of the strip of land in question, planted trees thereon and surrounded the same by a ditch, so as to render such south half of said proposed street impassable for vehicles, etc., but [273]that the land was not a public street and was never used or accepted as such.

Also that the relator, James L. Howland, owns land abutting on said proposed street, opposite the portion so plowed up and obstructed. That he has been in the habit of using it as a mode of egress and ingress to the land of him, the said Howland, and were it a public street it would be the only street running by or to his land by which he could have egress and ingress thereto.

The court further finds that the public does not, and has not, been accustomed to use said strip of land in any manner; is not discommoded or inconvenienced by said obstructions, etc. A common-law dedication is the setting apart of land for the public use, and to constitute a valid and complete dedication two things are necessary, to wit: an intention by the owner, clearly indicated by his words or acts, to dedicate the land to public use, and an acceptance by the public of-the dedication. (Elliott on Roads and Streets, 85; San Francisco v. Canavan, 42 Cal. 553; San Francisco v. Calderwood, 31 Cal. 585; 91 Am. Dec. 542; Harding v. Jasper, 14 Cal. 647; People v. Reed, 81 Cal. 70.) And before it has been accepted the owner of the land is not precluded from revoking at any time the offer to dedicate. (Heldane v. Trustees, 21 N. Y. R. 478; San Francisco v. Ganavan, 42 Cal. 553.) Dedication is a question of fact to be determined by a jury or by the court sitting as such. (Harding v. Jasper, 14 Cal. 648.)