Spaulding v. Wesson

Harrison, J. Action to. recover a street assessment upon certain land in San Francisco. Judgment was rendered in favor of the plaintiff, and the defendants have appealed. One of the defenses to the suit is that at the time the resolution ordering the work was adopted by the board of supervisors, the street therein described had never been dedicated to public use, and was not a public street, but was held in private ownership. The resolution ordering the work to be done was passed August 13, 1877, and provided for grading Union street from Larkin street to the "westerly line of Franklin street. The court found that at that date the board of supervisors had acquired jurisdiction to order said work and the whole of it to be done; This finding is attacked by the appellant upon the ground that it is not supported by the evidence.

Union street, between Larkin and Franklin streets, is situated in that portion of San Francisco which is embraced within what is known as the Laguna survey. In [443184]8, Leavenworth, then alcalde of the town of San Francisco, made grants of several hundred-vara lots in the vicinity of the Lagoon, and the tract covered by these grants has since been called the Laguna survey. The lots thus granted were contiguous to each other, without any intervening streets. Upon the map which was made under the Van Ness ordinance, and validated in 1858 (Stats. 1858, p. 56), various streets, including this portion of Union street, were projected through the land covered by this survey; but it was held in Scott v. Dyer, 54 Cal. 430, that by the Leavenworth grants the grantees became the absolute owners of the lands granted, and that no portion of these lands could be appropriated to the use of the public as a street, except upon making compensation therefor.

At the trial of the present case evidence was offered to the effect that the defendant, Wesson, became vested in 1872 with the title to the hundred-vara lot No. 15 that had been granted by Leavenworth in 1848. This hundred-vara lot embraced the premises of the defendant described in the complaint, and also a portion of Union street fronting thereon. Wesson testified that he remained in possession of the property until the grading was completed, and did not in any way part with his title to the land, until he made a conveyance to the city, in 1891, of that portion of Union street which was embraced in his hundred-vara lot; and it was admitted on behalf of the plaintiff that at the time the above order for the improvement of Union street was made, certain individuals were vested with the title to portions of the street which were embraced within grants in the Laguna survey made by Leavenworth. It was also shown that, until the time when the work of grading the street was begun under the contract entered into by virtue of the order, Union street was closed by fences running across it at several points.