183 Cal. 415, L. A. 6044, County of Inyo v. Given

Docket Nº:L. A. 6044
Citation:183 Cal. 415, 191 P. 688
Party Name:THE COUNTY OF INYO, Respondent, v. PAUL M. GIVEN, (a Minor), et al., Appellants
Attorney:A. H. Swallow, for Appellants. Jess Hession, for Respondent.
Judge Panel:JUDGES: Wilbur, J., Sloane, J., and Lennon, J., concurred.
Case Date:July 28, 1920
Court:Supreme Court of California
 
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Page 415

183 Cal. 415

191 P. 688

THE COUNTY OF INYO, Respondent,

v.

PAUL M. GIVEN, (a Minor), et al., Appellants

L. A. No. 6044

Supreme Court of California

July 28, 1920

         Department Two

         APPEAL from a judgment of the Superior Court of Inyo County. Wm. D. Dehy, Judge.

          Reversed.

         COUNSEL:

         A. H. Swallow, for Appellants.

         Jess Hession, for Respondent.

         JUDGES: Wilbur, J., Sloane, J., and Lennon, J., concurred.

         OPINION

         THE COURT

Page 416

          [191 P. 689] The following opinion was prepared by Mr. Justice Kerrigan of the district court of appeal, first appellate district, while acting as justice pro tempore of this court in place of Mr. Justice Melvin. It is adopted as the opinion of the court.

         This action was brought by the county of Inyo to have a certain street decreed a public highway and to remove and abate an obstruction thereon. As judgment went for plaintiff on the pleadings, a review of the same becomes necessary. Plaintiff alleged, in substance, that in December, 1900, one A. M. Given filed in the recorder's office of Inyo County a plat of the Given Addition to the town of Big Pine, and that on said plat certain streets, avenues, and alleys were delineated, including a street known as Washington Street; that subsequently Given sold lots in said addition to certain persons and that said Washington Street was dedicated by Given to the use of the public and particularly to certain purchasers named in the complaint; that thereafter in December, 1913, defendant Paul Given made on oral application to the board of supervisors, without any petition in writing, for an order vacating and abandoning certain of these streets and avenues

Page 417

delineated on said plat, including that portion of Washington Street north of the north line of Center Street. That to procure this order, it is alleged, defendant made certain false representations to the board of supervisors concerning the sale of said lots, and that as a result thereof the board in December, 1913, made an order without the knowledge, consent, or acquiescence of any of the abutting owners, vacating certain of the streets, including that portion of Washington Street above mentioned. Further allegations recite that in so doing the board exceeded its authority, and that thereafter in January, 1914, after learning of the false representations, it made an order revoking and rescinding that portion of the order and resolution relating to Washington Street. It is also charged that while Washington Street was a public highway, dedicated as aforesaid, defendant Lena T. Given placed certain obstructions thereon and that she refused to remove the same upon demand being made. Defendants demurred to the complaint on the ground that it failed to state a cause of action. The demurrer was overruled. Defendants answering, denied that the portion of Washington Street referred to had ever been opened or used as a street or public highway, or that it was ever accepted as such by the county, and alleged that no lots abutting upon the streets or portions thereof vacated by the order of the board had ever been sold to any person. They also denied that any false representations were ever made to the board to induce the members thereof to make the revoking order, or that the board ever relied upon any such representations in making the same. On the trial defendants moved for judgment on the pleadings on the ground that the amended complaint did not state facts sufficient to constitute a cause of action or entitle the plaintiff to any relief against the defendants or either of them. The trial court held, however, that the board of supervisors had no authority or jurisdiction to make the order vacating and abandoning the streets, and further concluded that as the answer did not controvert the allegations of the complaint constituting dedication, it did not state facts sufficient to constitute a defense, and ordered judgment for the plaintiff on the pleadings. It is defendants' contention that the court erred in overruling their demurrer and further erred in not giving judgment in their

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favor. We are of the opinion that the judgment as rendered finds no support in the record.

         The allegations of the complaint with reference to the dedication of the land recite that defendants' predecessors in interest had sold to different persons lots in the tract [191 P. 690] according to the map or plat, and that there was thereby created an irrevocable easement in the streets and avenues delineated on such map.

         As above indicated the answer of defendants not only specifically alleges that no lots had ever been sold on the streets or portions thereof vacated by the order of December, 1913, but it also denies that any part of that portion of Washington Street affected...

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