Bigley v. Nunan

CROCKETT, J. — The action is to abate a public nuisance and for the recovery of special damages alleged to have been suffered by the plaintiff. The nuisance complained of is the obstruction of the north half of Olive avenue, which is alleged to be a public street in the city of San Francisco, located in the western addition and within the territory, the title to which [856]was relinquished by the United States to the city by the act of Congress of March 8, 1866 (14 Stats, at Large, 4). The title was conveyed to the city in trust “that all the said land not heretofore granted to said city shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the state of California may prescribe, except such portions thereof as may be reserved and set apart by ordinance of said city for public use.” By the act of March 14, 1870 (Stats. 1869-70, p. 353), the legislature prescribed the method and the terms and conditions on which the beneficiaries might avail themselves of the act of Congress and secure the title. The defendants claim that in accordance with these provisions they have acquired the title to that portion of Olive avenue (so called) which is alleged to have been obstructed, and that it has never been.dedicated to public use as a street. But, as we have seen, the act of Congress excepts from the grant to the persons in possession such portions of the land “as may be reserved and set apart by ordinance of said city for public use. ’ ’ If strictly construed this phrase might, perhaps, be held to apply only to reservations for public use, to be made by ordinance passed after the passage of the act of Congress. But this interpretation would be too narrow, and a reservation for public use made by a city ordinance before the passage of the act of Congress comes fully within the spirit, if not within the precise letter, of the act. Was this land so reserved? By the act of April 26, 1862 (Stats. 1862, p. 407), the legislature established a “Board of Civil Engineers” to survey all the streets of the city “and fix the lines thereof, ’ ’ and to make a map showing the width' of every street, and to erect monuments for the preservation of the street lines so established. On completing their work the board was required to return the maps and profiles, with a report of their proceedings, to the board of supervisors for their approval; and it is then provided that “when the same shall be finally adopted by an order of the board of supervisors, such maps and profiles shall stand as the legal and valid official plan of said city, to determine the lines of the streets and. the grades thereof.” The engineers, having completed their work, returned the maps and profiles to the board of