Cooper v. Monterey County

Vanclief, C. Action to quiet plaintiff’s title to a tract of land containing about two thousand acres situate in the county of Monterey. The defendant, by its answer, disclaimed any title or interest in the land, [438]except to a defined strip thereof, forty feet in width, extending across the tract, which it alleged was a public highway, and as such was under the supervision and control of the defendant for the use of the general public; and that it had been traveled and used as a public road by the general public during a period of thirty years next before the commencement of the action.

The court found that a part of said strip, twenty feet in width, extending across the tract, “has been continuously and uninterruptedly traveled and used by the general public as and for a public road or highway ever since 1872; and that “the same is a public highway”; and “that such use of said portion of said land as a road or highway by the general public has been with the knowledge Of plaintiff and without objection on his part.” Thereupon, to that extent, and for the use of the public as a road, the court adjudged that defendant’s title be quieted.

From this judgment, and from an order denying his motion for a new trial, the plaintiff appeals.

Counsel for appellant contends that the findings of the court above stated are not justified by the evidence.

The finding that the strip of land in question was traveled and used by the public ever since 1872, with the knowledge of plaintiff and without objection on his part, is only the finding of probative facts tending to prove a dedication; but the fact of dedication, which, by the way, is neither alleged nor found, does not necessarily follow from these probative facts, since they are not necessarily inconsistent with a total absence of intention to dedicate, and may indicate merely a license.

The finding that the strip of land “is a public highway,” whether deemed an ultimate fact or a conclusion of law, is not justified. As an ultimate fact it is not justified bythe probative facts found,nor by the evidence; since the evidence tended to prove only those probative facts, there being no evidence tending to prove that the strip of land ever became a public highway otherwise than by dedication, and no allegation or claim of adverse [439]