48 Cal. 490, 3,482, Polack v. Trustees of San Francisco Orphan Asylum

Docket Nº:3,482
Citation:48 Cal. 490
Opinion Judge:RHODES, Judge
Party Name:MARY POLACK v. THE TRUSTEES OF THE SAN FRANCISCO ORPHAN ASYLUM
Attorney:W. H. L. Barnes and Jackson Temple, for the Appellant, E. L. B. Brooks, for the Respondent,
Judge Panel:JUDGES: Rhodes, J. Mr. Justice McKinstry concurred specially in the judgment. Mr. Chief Justice Wallace did not express an opinion.
Case Date:July 01, 1874
Court:Supreme Court of California
 
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Page 490

48 Cal. 490

MARY POLACK

v.

THE TRUSTEES OF THE SAN FRANCISCO ORPHAN ASYLUM

No. 3,482

Supreme Court of California

July, 1874

Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

Market street is a wide street leading through the city of San Francisco, over which there is a large amount of travel, and Waller street extends from Market street in a westerly direction towards the Pacific ocean. The plaintiff owned lots on each side of Waller street, a short distance from Market street; and between Market street and the plaintiff's lots, the defendant owned two blocks of land, through which Waller street passed. The plaintiff recovered judgment and the defendant appealed.

COUNSEL

W. H. L. Barnes and Jackson Temple, for the Appellant, cited San Francisco v. Canavan, 42 Cal. 541; Payne v. Treadwell, 16 Cal. 233; People v. Ferguson, 36 Cal. 595; Smith v. Boston, 7 Cushing, 254; Castle v. Berkshire, 11 Gray, 26, and Radcliffe v. The Mayor, etc., 4 N.Y. 195.

E. L. B. Brooks, for the Respondent, argued that the plaintiff, by his ownership of the lots, had acquired a vestedright to have Waller street kept open; and cited Sherman v. Buick, 32 Cal. 241, and also argued that the closing of the street was a nuisance, and cited section twenty-four of the Practice Act, which defines a nuisance. He also cited Breed v. Cunningham, 2 Cal. 361; People v. Beaubien, 2 Douglas, 256; McConnell v. The Trustees of the Town of Lexington, 12 Wheaton, 582, and City of Cincinnati v. White, 6 Peters, 431.

JUDGES: Rhodes, J. Mr. Justice McKinstry concurred specially in the judgment. Mr. Chief Justice Wallace did not express an opinion.

OPINION

RHODES, Judge

Page 491

In 1865, the Board of Supervisors of the City and County

Page 492

of San Francisco passed a resolution " that the Protestant Orphan Asylum Society have the use of Waller street, between Laguna and Buchanan streets, and that the same remain closed during the pleasure of this Board." On the 23d of January, 1866, an Act was passed by which the Board of Supervisors were authorized to close up Waller street, between Laguna and Buchanan streets, and dedicate the same to the use of the Protestant Orphan Asylum, (Stats. 1865-5, p. 37). A further Act was passed March 5, 1868, (Stats. 1867-8, p. 95), the first section of which is as...

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