Corey v. City of San Diego

• Decision Date: 22 July 1958
• Citation: 327 P.2d 977
• Court: California Court of Appeals Court of Appeals
• Parties: W. R. COREY, Dick Haas Motors, Odeene Bateman and Ivarene Bateman, Husband and Wife, Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Atchison, Topeka and Santa Fe Railway Co., Defendants and Respondents. * Civ. 5857.

Page 977

327 P.2d 977

W. R. COREY, Dick Haas Motors, Odeene Bateman and Ivarene Bateman, Husband and Wife, Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Atchison, Topeka and Santa Fe Railway Co., Defendants and Respondents. ^*

Civ. 5857.

District Court of Appeal, Fourth District, California.

July 22, 1958.

Rehearing Granted Aug. 11, 1958.

For Opinion on Rehearing see 329 P.2d 99.

Holliday & Folsom, David S. Folsom, San Diego, for appellants.

J. F. DuPaul, City Atty., Jack G. Whitney, Deputy City Atty., San Diego, for respondents.

McCABE, Justice pro tem.

Plaintiffs bring this action to quiet title to a strip of real property which lies in an area delineated on a Map of Middletown made by J. E. Jackson, described as California Avenue. Defendants are the City of San Diego (hereinafter called City) and Atchison, Topeka & Santa Fe Railway Co. (hereinafter referred to as Santa Fe). From a judgment entered in favor of defendants, plaintiffs appeal.

Historically, Middletown was one of four large areas of land within what is now the City of San Diego and in 1874 was undeveloped land. On October 21, 1874, in the case of Baldwin et al. v. Couts et al., No. 869, (hereinafter referred to as Baldwin action) a partition decree for Middletown was signed in the 18th Judicial District of the State of California. The Baldwin action was brought to determine the conflicting claims and interests of numerous persons and entities in and to the real property of Middletown. The City of San Diego, the County of San Diego and the predecessors in interests of plaintiffs were among the parties named and appearing in the Baldwin action. Before October 21, 1874, the trial court appointed referees to partition Middletown. The report of the referees, dated October 12, 1874, was filed in the Baldwin case. The referees had a survey and map prepared subdividing Middletown into lots, blocks and streets. The map was referred to and by reference made a part of the decree in the Baldwin action. This map is commonly referred to as 'J. E. Jackson Map', 'J. E. Jackson Partition Map'. 'I. E. Jackson Partition Map of 1874', 'Map of Middletown made by J. E. Jackson.' In the Baldwin decree each litigant was given certain property described by lot or lots and block with reference to the J. E. Jackson Map. By the decree the City of San Diego was given specifically described property. The Baldwin decree made no specific mention of the disposition of the title to the land upon which the streets were laid out. In part, the Baldwin decree ordered, adjudged and decreed, 'that the said Report and Map of the said Referees and all things therein, be and they are hereby ratified and confirmed, and that the partition therein and herein made and set forth, be firm, binding, effectual and final as to all parties and that pieces and parcels of land as by said Report and this Decree set off to the Said parties, be theirs, their heirs and assigns forever in Severalty. And this Decree shall ratify and Confirm unto the Said parties the pieces or parcels of land therein and herein set off to them the same as if they had each executed and delivered to each other deeds of release and quitclaim in due form and in accordance with said Report and this Decree.' The J. E. Jackson Partition Map was filed in the county clerk's Office October 19, 1874 and the Baldwin decree was filed and became part of the official records of the County of San Diego.

On December 21, 1880, one C. P. Noell, one of the litigants in the Baldwin action deeded a certain interest in a strip of land which was part of California Avenue on the J. E. Jackson Map to the California Southern Rail Road Company, which interest has since vested in Santa Fe Railway. By this deed, Noell granted a right of way to 'that portion of California Avenue that lies between the front line of each of said lots and blocks and the middle line of said California Avenue as comes within the route of said railroad according to the Map of said railroad Company's railroad * * *'

Plaintiffs, by their complaint to quiet title allege: they and their redecessors in interest have been the owners of certain real property specifically described which lies within the area delineated as California Avenue (now California Street) on the J. E. Jackson Partition Map of 1874; there was no dedication of or acceptance of said street; the street has never been used for a street by anyone; and since the filing of the J. E. Jackson Partition Map in 1874 the street has been used as if free from any dedication. Also, plaintiffs allege defendant Santa Fe is the owner of a certain specifically described portion of the area delineated on the Jackson Map as California Street. Defendant City answered and denied specifically the allegations of plaintiffs' complaint except it admits the J. E. Jackson Partition Map reflects an area marked California Street. No affirmative defenses were alleged by defendant City. Defendant Santa Fe answered and admitted by failure to deny that it owns the area specifically described in plaintiffs' complaint and the plaintiffs' allegations regarding dedication, non-use and use inconsistent with dedication and affirmatively pleaded the deed from one Noell.

It appears that the plaintiffs' allegations of ownership in defendant Santa Fe, and the affirmative pleadings of defendant Santa Fe do not limit its interest to a right of way but specifically alleges ownership. However the Noell deed attached as an exhibit to defendant Santa Fe's answer which was later admitted to evidence, states: '* * * hereby grant unto said California Southern Rail Road Company, its successors and assigns, a right of way, * * * over, in and upon the following premises * * *'

The pretrial conference order provided in part: 'Issues 1. Whether or not the area in question is now a public street or whether title thereto should be quieted in the plaintiffs and the Railway Company.'

On the trial date and during the opening statement of plaintiffs' counsel a title company 'Litigation Guarantee,' a copy of the Baldwin decree, a copy of the J. E. Jackson Partition Map of 1874 were received and marked as plaintiffs' exhibits. During the plaintiffs' opening statement all parties conceded that plaintiffs, respectively, owned the property contiguous to the parcels of land in litigation. At the close of this opening statement, defendant City moved for a directed verdict. During the discussion on this motion there was introduced and marked as defendant Santa Fe's exhibits, a copy of the Noell deed and a map reflecting the location of the railroad in 1880. The trial court stated that apparently defendant City's motion was intended as a motion for judgment comparable to a motion for summary judgment. Defendant City concurred in this statement. Then, plaintiffs made an offer to prove the street had not been used as a street, the property had subsequently been sold to third persons, and the property in question had been used as if free from dedication. An objection to the offer of proof was sustained. The trial judge in effect ordered judgment entered in favor of defendant City subject to the easement in defendant Santa Fe, and ordered defendant to prepare findings and a decree.

The Conclusions of Law provide the rights and interests of plaintiffs' predecessors in interest and defendant City in California Street were determined in the Baldwin action; California Avenue was dedicated as a public way, road or street by judicial decree in the Baldwin action; the Baldwin decree 'is binding, effectual forever on all parties named * * * their successors in interest, pursuant to Section 766 of the Code of Civil Procedure; defendant Santa Fe owns the easement it claims; and section 748.5 of the Code of Civil Procedure is inapplicable where a portion of partitioned property is set apart for a street pursuant to Section 764, Code of Civil Procedure. Judgment was entered accordingly.

Plaintiffs appeal from the judgment and 'from the whole thereof.' Defendant Santa Fe has not filed briefs on this appeal. On this appeal plaintiffs contend (1) the doctrine of res judicata is not applicable, (2) Section 748.5, Code of Civil Procedure is applicable, (3) defendant City abandoned and rights to the property under the provisions of Section 2620 Political Code, (as it existed between 1874 and 1883) by the City's failure to work or use the property for a five years' period.

Defendant City contends (a) the street was set aside as a public way pursuant to Section 764, Code of Civil Procedure, in the Baldwin action; (b) the Baldwin decree was effectual forever on all parties to that action and their successors in interest and is res judicata; (c) Section 748.5, Code of Civil Procedure does not change the effect of Section 766, Code of Civil Procedure; (d) plaintiffs are barred by laches. It does not attempt to answer plaintiffs' contention (3).

As of the time the decree in the Baldwin action was signed and filed, Section 764, Code of Civil Procedure provided in part:

'* * * Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties or sold, but shall remain an open and public way, road or street, unless the referees shall set the same apart as a private way, for the use of the parties interested, or some of them, their heirs and assigns, in which case it shall remain such private way. Whenever the referees have laid out on any tract of land roads sufficient, in the judgment of said referees, to accommodate the public and private wants, they shall report that fact to the court, and upon the confirmation of their report all other roads on said tract shall cease to...