Demartini v. City of San Francisco
Before: Fleet
Synopsis
Streets — Opening by Street Superintendent — Injunction by Lot-owner—Evidence op Title—Possession—Burden op Proof.—In an action by a lotowner to enjoin the superintendent of streets from removing the improvements from his lot and. opening it up for a public street it is not necessary that the plaintiff, in order to maintain the action, should establish title in fee, but it is only necessary to show actual possession of the lot at the time of bringing the suit, and such possession is presumptive evidence of title, and ic is incumbent on the defendants to show a right to open up the street m order to defeat the action.
Id.—Findings—Dedication of Land for Street—Sufficiency of Evidence..—Where the court finds that the street sought to be opened has never been more than a cul-de-sac, and never extended across the plaintiff’s lot, no part of which had ever been dedicated, accepted, or used as a public street or highwa)', and the evidence tends to show that whatever user there was of plaintiff’s lot by the public was a mere sufferance or permissive use by the owners of the fee, and there is no evidence of unequivocal intent by the owners to dedicate the land to public use, the finding will not be disturbed upon appeal.
Id.—Effect of User—Intention to Dedicate.—While user may be sufficient to show an acceptance by the public of an offer to dedicate, it is not sufficient of itself to establish dedication by the owner, except it appear clearly that such user was with the knowledge and consent of the owner, or without his objection, and under such circumstances as fairly to give rise to the presumption that the owner intended to dedicate to such use.
Id.—Official Maps of Oitv—Description of Street.—The fact that the street in dispute appears to have been laid down upon the engineer’s map and other official maps of the city, as a part of a street or alley, raises no conclusive presumption that the land has become a public street either by dedication or otherwise, where it appears that the land was not a part of one of the originally reserved streets, but came to private ownership under an alcalde grant, and that at and before the time when the maps were made and filed the premises were fenced, and have never been open to use as a street.
Id.—Right to Take Private Land for Public Street—Dedication.— Where land is held in private ownership the right to take it as a public street depends upon whether the land has been dedicated as such.
Van Fleet, J. — Plaintiffs brought this action to enjoin the superintendent of streets of the city and county of San Francisco from removing the improvements from, and opening up as a public street, a certain strip of land in said city and county. Plaintiffs had judgment in the court below. The defendants moved for a new trial, which was denied, and they appeal from the order upon a statement of the case.
Fifty vara lots numbered 38 and 14 are situated in the block or square of said city and county, lying ber tween Broadway and Pacific, and Kearny and Montgomery streets. Lot 38 is a rectangle, situated on the northwesterly corner of the block, with a front of one hundred and thirty-seven and one-half feet on Broadway, and a like extent on Kearny. Lot 14 lies immediately to the east of and adjoining lot 38, with the same frontage on Broadway as the last-named lot, and running back southerly to an equal depth. The plaintiffs claim to be the owners and in possession of that portion of fifty vara lot 14, lying adjacent to lot 38 on the east, having a front of fifty-nine feet and nine inches on Broadway, and running back the full depth of one hundred and thirty-seven and one-half feet. Commencing at Kearny street, and running along and upon the most southerly part of said fifty vara lot 38, is a narrow alley or street, known as St. Charles street, some seventeen and one-half feet wide, which is opened up the full depth of said lot 38; while running from Broadway, and on the entire easterly line of that part of lot 14 above described, as claimed by plaintiffs, is an alley fourteen feet wide, known as Rowland alley. The land in dispute is a strip seventeen and one-half feet wide and about fifty-nine feet and nine inches long on the southerly end of pláintiff’s lot, as now claimed by them, and which, if thrown open, would extend St. Charles street or alley, so as to connect it with Rowland alley.
The claim of the defendants is that the premises in dispute comprise and constitute a part of St. Charles [406]street, and is a public way, made so by dedication of the owners thereof and acceptance by the public. The plaintiffs claim, to the contrary, that the land in dispute never was dedicated or opened as a street, and has never been open to public use or travel; that St. Charles street is a cul-de-sac, which never at any time extended across any portion of said lot 14, but terminated at the easterly line of lot 38.
The court below found: “ 1. That the plaintiffs are and have been in possession of all of the land and premises described in the complaint, claiming title thereto ever since the month of July, 1884, and that the possession of said lot of laud has been held by the predecessors of the plaintiffs ever since prior to the year 1865; an d that there are and have been for many years improvements upon all of said premises, which improvements are the property of plaintiffs.
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