City & County of San Francisco v. Burr

Harrison, J. In 1847, Leavenworth, as alcalde of San Francisco, granted twenty-six one hundred vara lots in that portion of the pueblo which is called the Laguna survey. These lots were granted by reference [461]to a map kept in the alcalde’s office, on which they were designated by numbers. Upon this map there is delineated a space corresponding to a street, upon one side of which are located lots 4, 7, 9, and 21, and on the other side of which are located lots 3, 6, 12, and 22. The territory thus surveyed and mapped is situated west of Larkin street, and was disconnected with the other portion of the then town of San Francisco, and the open space between the two rows of lots aforenamed was not a prolongation of any of the streets then existing, nor did it intersect or connect with any of those streets. The present action is brought to have this space declared to be an open, public street.

This delineation upon the map created the easement of a right of way in favor of the grantees’ lots abutting thereon, and indicated an intention on the part of the town to dedicate the space as a highway, and a subsequent user thereof would have been regarded as an acceptance by the public sufficient to complete the dedication. The grantees of the lots might, however, lose or surrender the easement created for them, and the public could also abandon or discontinue the highway after its dedication had been complete. The street when dedicated became the property of the whole state, which by its legislature could deal with or dispose of it at its pleasure. “That the legislature possesses competent power to vacate a street in a city; that the legislature may delegate or commit such power to the municipal authorities of the city; that its exercise by the municipal authorities is dependent on the will and subject to the control of the legislature; and that after such power has thus been committed to the municipal authorities the legislature may revoke it in part, as well as in whole, or, without an express revocation, may itself exercise it in any particular instance, are propositions about which there can be no controversy in this state. The plenary power of the legislature over the whole domain of streets is well illustrated by the decisions of [462]this court in. the litigation respecting Kearny, Second, and Beale streets in the city of San Francisco.” (Polack v. San Francisco Orphan Asylum, 48 Cal. 492.)