Union Transp. Co. v. Sacramento County

CourtUnited States State Supreme Court (California)
Citation42 Cal.2d 235,267 P.2d 10
PartiesUNION TRANSP. CO. et al. v. SACRAMENTO COUNTY et al. Sac. 6419.
Decision Date19 February 1954

Horace E. Dunning, Sacramento, for appellants.

Gerald M. Desmond, Jerome M. McLaughlin, Johnson, Davies and Greve and Claire H. Greve, Sacramento, for respondents.

EDMONDS, Justice.

A bridge located near the boundary line between the counties of El Dorado and Sacramento collapsed when a truck owned by Union Transportation Company, a corporation, was driven over it. The truck was loaded with cattle belonging to George and Ray Smith, doing business as copartners under the name of Smith Brothers. The trucking company and the cattle owners jointly sued both counties under the Public Liability Act of 1923, Stats.1923, p. 675; Gov.Code, §§ 53050-53056.

The appeal from a judgment which followed an order granting the counties' motions for a nonsuit presents the question as to the sufficiency of the evidence to require the submission of the issue of liability to the jury. Rulings upon the admissibility of certain evidence are also challenged.

The record, viewed most favorably to the appellants, shows the following facts:

A dirt raod originating at White Rock in Sacramento County roughly parallels the county line across several privately owned ranches. About two miles from White Rock it crosses into El Dorado County, but after a short distance returns to Sacramento County where it terminates near the ranch owned by Smith Brothers. At a point on the short loop of the road within El Dorado County, it crosses Carson Creek on the Smith Brothers' property over a bridge, which at the time of the accident was made of wood. The bridge had been erected about 30 years before, but the record does not show who constructed it or the road.

For many years, the road had been used by the ranchers in the vicinity and their friends to provide access to U. S. Highway 50 at White Rock. Also, various members of the public traveled over it, generally about once each week, but occasionally as frequently as 20 times in a single day. About twice each year, the road was graded. The record does not show at whose instance this work was done, but there is testimony that the equipment used was county owned. On one occasion, the machinery was identified as belonging to Sacramento County, and it was shown that the operator was a Sacramento County employee. The bridge was repaired extensively in 1937, but by whom is not disclosed.

The record includes ample evidence of a dangerous and defective condition of the bridge when it collapsed. Several witnesses who examined the wreckage testified as to extensive rotting of the supporting timbers. Expert witnesses stated that the load one, imparting no constructive notice to the had the bridge been in a proper condition, it could have supported the loaded truck with safety.

In support of the judgment, Sacramento County contends that there is no proof that the bridge is within that county; instead, all of the evidence tends to show that it is within El Dorado's boundaries. Accordingly it is argued, there is no basis for an action against Sacramento County for failing to maintain the bridge.

El Dorado takes the position that the evidence is insufficient to show in which of the two counties the bridge is located. But even if it may be shown to be within El Dorado County, the argument continues, there was no duty upon that county to maintain it. Another contention is that any defect must be deemed to have been a latent one, imparting to constructive notice to the governing authority of its dangerous character.

The county surveyor of El Dorado County testified that the monuments described in section 23134 of the Government Code as marking the boundary between the two counties are no longer available. However, based upon the monuments mentioned in certain unofficial maps of the area, his calculations showed that the bridge is located within El Dorado County about 200 feet from the boundary line.

According to his testimony, he could not be certain as to the true location of the boundary, and he did not know whether the line drawn by him was correct. El Dorado argues that these statements compel the conclusion that the testimony was based upon speculation and entitled to no weight. Cf. McKellar v. Pendergast, 68 Cal.App.2d 485, 489, 156 P.2d 950. But the witness stated that no exact line could be drawn and, in making his survey, he followed the same procedure as would be used by any competent surveyor. Furthermore, his line and the monuments used to locate it correspond to those shown in the official topographical map of the United States Geological Survey, which is one of which courts take judicial notice. Code Civ. Proc. § 1875(3); Rogers v. Cady, 104 Cal. 288, 290, 38 P. 81; Varcoe v. Lee, 180 Cal. 338, 343, 181 P. 223.

The theory of the Smiths and the trucking company is that the road of which the bridge is a part, although originally a private one, has become a public highway by implied dedication arising from long acquiescence on the part of the adjacent landowners in its use by members of the public. El Dorado's position is that certain statutory provisions as well as public policy prevent public user alone from casting upon a county the duty to maintain and repair what otherwise would be a private road. It argues that no such duty arises until the road is recognized as a county highway and taken into the county's road system 'by a very definite act of acceptance'.

A common law dedication has been described as 'a voluntary transfer of an interest in land (which) partakes both of a nature of a grant and of gift, and is governed by the fundamental principles which control, such transactions.' County of Inyo v. Given, 183 Cal. 415, 418, 191 P. 688, 690; People ex rel. Howland v. Dreher, 101 Cal. 271, 273, 35 P. 867. Essential to such a dedication are an offer by the owner of the land, clearly and unequivocally indicated by his words or acts, to dedicate the land to a public use and an acceptance by the public of the offer. City of Manhattan Beach v. Cortelyou, 10 Cal.2d 653, 660, 76 P.2d 483; People ex rel. Howland v. Dreher, supra, 101 Cal. at page 273, 35 P. at page 868; Cerf v. Pfleging, 94 Cal. 131, 135, 29 P. 417; City of San Francisco v. Canavan, 42 Cal. 541, 552-553.

Many cases hold that an offer to dedicate land may be inferred from the owner's long acquiescence in a public use of the property under circumstances which negative the idea that the use was under a license. Hargro v. Hodgdon, 89 Cal. 623, 630, 26 P. 1106; Niles v. City of Los Angeles, 125 Cal. 572, 577, 58 P. 190; see City of San Diego v. Hall, 180 Cal. 165, 168, 179 P. 889; F. A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 448, 150 P. 62.

In another line of decision, by analogy to the doctrine of prescription, it is held that '(w)hen the public or such portion of the public as had occasion to use a road has traveled over it for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by any one, a conclusive presumption of dedication to the public arises.' Hare v. Craig, 206 Cal. 753, 757, 276 P. 336, 338; People v. Myring, 144 Cal. 351, 354, 77 P. 975; Hartley v. Vermillion, 141 Cal. 339, 349, 74 P. 987; Arnold v. City of San Diego, 120 Cal.App.2d 353, 261 P.2d 33. 'Of course, where the dedication of a highway is sought to be established by user, it must be shown that the user was adverse, continuous, and with the knowledge of the owner, for the required period of time.' Diamond Match Co. v. Savercool, 218 Cal. 665, 669, 24 P.2d 783, 785. Whether the user was adverse is a question of fact to be determined from all of the circumstances of a case. O'Banion v. Borba, 32 Cal.2d 145, 149-150, 195 P.2d 10.

The distinction between the two theories is well expressed in Schwerdtle v. County of Placer, 108 Cal. 589, 41 P. 448, where it is said: 'If a dedication is sought to be established by a use which has continued a short time, not long enough to perfect the rights of the public under the rules of prescription, then, truly, the actual consent or acquiescence of the owner is an essential matter, since without it no dedication could be proved, and none would be presumed; but where this actual consent and acquiescence can be proved, then the length of time of the public use ceases to be of any importance, because, the offer to dedicate and the acceptance by use both being shown, the rights of the public have immediately vested. But where the claim of the public rests upon long-continued adverse use, that use establishes against the owner the conclusive presumption of consent, and so of dedication. If affords the conclusive and indisputable presumption of knowledge and qcquiescence, while at the same time it negatives the idea of a mere license.' 108 Cal. at page 593, 41 P. at page 449. Dedication by adverse user has been characterized as dedication implied by law, while a dedication inferred from the acts of the owner or from his acquiescence in public user may be termed a dedication implied in fact. Diamond Match Co. v. Savercool, supra, 218 Cal. at page 669, 24 P.2d at pages 784, 785; City of Laguna Beach v. Consolidated Mfg. Co., 68 Cal.App.2d 38, 43, 155 P.2d 844.

In the present case, the evidence clearly supports the determination that the road and bridge had been used by the public for a period of at least 12 years and that such use was known by the owners of the land. There is further testimony to the effect that maintenance and repair work was performed on the road and the bridge by someone other than the owners, and there is no evidence that they at any time objected or interfered with this user. From these facts, as well as the general appearance, location and evident purpose of the road and bridge it could be inferred either that the landowners intended by acquiescing...

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