Arnold v. City of San Diego

• Citation: 261 P.2d 33,120 Cal.App.2d 353
• Court: California Court of Appeals
• Decision Date: 24 September 1953
• Parties: ARNOLD et ux. v. CITY OF SAN DIEGO. Civ. 4585.

Page 33

261 P.2d 33

120 Cal.App.2d 353

ARNOLD et ux. v. CITY OF SAN DIEGO.

Civ. 4585.

District Court of Appeal, Fourth District, California.

Sept. 24, 1953.

Rehearing Denied Oct. 16, 1953.

Hearing Denied Nov. 19, 1953.

J. F. DuPaul, City Atty., San Diego, Alan M. Firestone and Mona Andreen, Deputy City Attys., San Diego, for appellant.

Herney & Herney, San Diego, for respondent.

MUSSELL, Justice.

Plaintiffs brought this action against the city of San Diego to quiet title to lots 1 to 5, inclusive, in block 2, College Park Unit No. 1 in said city. The city filed an answer alleging that it is the owner of an easement for street and highway purposes over and across the westerly portion (approximately 50 feet) of each of said lots and also filed a cross-complaint in which it is alleged that the said westerly portion of said lots is subject to easements as a public street and highway in favor of the public and abutting property owners, and was dedicated and accepted as a public street and highway for more than five years prior to the filing of said complaint, and has been in open, continuous and notorious use by the public and abutting property owners as a public street and highway ever since said dedication.

The trial court found that the said westerly portion of said lots involved had not been dedicated either to the defendant or the general public as a public street or highway; that the use of said property by the public for street and parking purposes was not exclusive, hostile, adverse or under any claim of right and that 'neither the defendant, nor the general public, was at any time in the actual, or the open, or the notorious, or the uninterrupted, or the exclusive, or the hostile possession of said real property or any part or any portion thereof.'

Defendant appeals from the judgment which was entered in favor of plaintiffs quieting their title to all the property described in the complaint.

A subdivision of College Park Unit No. 1 was filed to record in the office of the county recorder August 18, 1931, as map number 1296. This map shows that lots 1 to 5, inclusive, run east and west; that they are bounded on the east by College Avenue and on the west, a 20 foot alley extends northerly and southerly along the westerly end of said lots. The subdividers were the Mission Palisades Corporation and Bell-Lloyd Corporation. Subsequent to the time of filing the subdivision the subdividers revised the subdivision map and in a letter to the city planning commission, dated March 30, 1932, offered to dedicate all of lots 1 to 5, inclusive, Block 2, in said subdivision, to the city of San Diego as a Plaza. The subdividers then, through their officers, appeared before the planning commission on April 7, 1932, to obtain an approval of the revised subdivision map. The minutes of the planning commission show that the commission voted to reject a portion of certain alleys and adopt certain streets shown on the revised map. However, the minutes do not show that the plan for the Plaza was accepted and the revised map was never filed for record. In 1932 the subdividers caused the approximate westerly 50 feet of said lots, together with the said alley and a small triangular point of land to the southwesterly end of the area to be graded, paved and curbed. The paved area connected with Mission Valley Road, now called Montezuma Road, on the south, and Commerce Avenue, now called Bonito Paseo, on the north, and was approximately 70 feet in width. The subdividers painted the word 'Plaza' on the curbs of the paved area.

From the time of the paving of this area by the subdividers until 1950 the street was used by the public as a public street without protest or objection of the subdividers or any subsequent owners. The plaintiffs acquired title to lots 1 to 5, block 2, in 1944, and at the time of acquiring the property Mr. Arnold personally inspected the area and had knowledge of the existence of the paving and curbing and the use of the area by the public. The record does not contain any evidence indicating that plaintiffs objected to the use of the paved area as a street until 1950 when Mr. Arnold erected posts across the southerly end of the paved area, which posts were removed by the city the day following their erection. Since the removal of the posts, the whole of the said paved area has been in use by the public without interruption or objection from any one.

The principal question here involved is whether the said paved portion of lots 1 to 5, inclusive, is subject to an easement as a public street and highway.

The question of whether the use of an easement is adverse and under a claim of right, or permissive and with the owner's consent, and whether the nature of the user is sufficient to put the owner on notice, are ordinarily questions of fact, and all conflicts must be resolved in favor of the prevailing party and the evidence viewed in the light most favorable to him. O'Banion v. Borba, 32 Cal.2d 145, 147, 148, 195 P.2d 10. However, in Hare v. Craig, 206 Cal. 753, 757, 276 P. 336, 338, it is held that:

'When 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. Hartley v. Vermillion, 141 Cal. 339, 74 P. 987; Lantz v. City of Los Angeles, 185 Cal. 262, 196 P. 481; Leverone v. Weakley, 155 Cal. 395, 101 P. 304; Southern Pac. Co. v. Pomona, 144 Cal. 339, 77 P. 929; Schwerdtle v. County of Placer, 108 Cal. 589, 41 P. 448.'

As was said in Sanger v. Southworth, 87 Cal.App.2d 16, 18, 195 P.2d 482, 483:

'An intent to dedicate may be shown by a writing or by acts of the owners. The dedication may be either express or implied. 9 Cal.Juris. 19. It is implied when the acts of the owner indicate a clear intention to dedicate. People v....