London & San Francisco Bank v. City of Oakland

• Decision Date: 03 October 1898
• Docket Number: 444.
• Parties: LONDON & SAN FRANCISCO BANK, Limited, v. CITY OF OAKLAND et al.
• Court: U.S. Court of Appeals — Ninth Circuit

90 F. 691

LONDON & SAN FRANCISCO BANK, Limited, v. CITY OF OAKLAND et al.

No. 444.

United States Court of Appeals, Ninth Circuit.

October 3, 1898

'It is hereby stipulated in the above-entitled action that the following complainant was incorporated as averred in its bill; that the map mentioned in respondents' answer was filed and recorded by the persons from whom complainant deraigns title, and who were the owners in common of a tract of land embracing the land in controversy and the other lands shown on said map, on September 2, 1853, and that the copy attached to the answer, and marked 'Exhibit A,' is a full, true, and correct copy of said map; that the Rancho De San Antonio was granted by the Spanish governor of California, in 1820, to one Luis Peralta, who divided it among his sons, to one of whom (Vicente Peralta) he allotted the land bounded on the west by the Bay of San Francisco, on the south and east by the Estuary of San Antonio (designated on the Kellersberger map as 'Bay of Contra Costa' and 'Bayou'), and on the north by line extending from the Bay of San Francisco to said estuary, and lying north of the most northern tier of blocks shown on said Kellersberger map that the claim of Vicente Peralta to said land was confirmed in 1854 by the board of commissioners appointed by act of congress to inquire into California land grants of Spanish or Mexican origin, and, on appeal to the United States district court, said confirmation was affirmed, in 1855, and the supreme court of the United States, in U.S. v Peralta, 19 How. 343, affirmed said decision, and patent accordingly has issued from the United States conveying and confirming said lands to the successors in interest of Vicente Peralta; that, at the date of filing said Kellersberger map, the owners signing the same (who had succeeded to all the rights of Vicente Peralta in all said lands so allotted to him) owned a tract of land embracing all the lands laid off in blocks by the Kellersberger map, and all the lands surrounding the portion so subdivided into blocks, and extending therefrom to said exterior boundaries of the Vicente Peralta allotment; that said exterior strip or margin was not partitioned by said partition deed, but remained in undivided and common ownership for upward of ten years thereafter, unless the court shall hold that the premises in controversy were dedicated by said map to owners for the purpose of a partition and allotment of the blocks thereon laid down amongst themselves, and on the said 15th day of August, 1853, simultaneously with the filing of said map for record, said owners made partition of said blocks allotting the same amongst themselves by the numbers and designations of the various blocks thereof as laid down, numbered, and designated upon said map, and executed amongst themselves reciprocally a deed of partition, whereby block 166 (but not the lands in controversy) was allotted and conveyed in severalty to John C. Hays and John Caperton, two of said owners; and the title of the complainant in this suit to the land in controversy is derived from said tenants in common by conveyances executed by them subsequently to said partition deed; the title to said block 166 is vested in other persons, not parties to this action, who hold the same under conveyances executed by said Hays and Caperton; that, after said partition was made, the respective parties thereto sold and conveyed the lands in their respective allotments to various persons, and from time to time, describing the parcels in the conveyances executed by them by the numbers and description thereof as shown upon said map, and referring to said map by its title of 'Kellersberger's Map of Oakland' for particularity of description; that about the year 1855, and at all times since, the land in controversy in this action was and is inclosed by substantial fence, and since 1858 it has been occupied as a residence; that the land claimed by respondents' answer to be a portion of Fallon street adjacent to complainant's property had never been actually opened or used as a street; but that other portions of Fallon street, to wit, from Sixth street to Eighth street, inclusive, have been for many years so opened and used by the public under the dedication made by the deed of partition and the said map; that the premises are not improved as stated in complainant's complaint, and are of the value therein stated; that the board of trustees of the town of Oakland, on the 27th day of August, 1853, passed and adopted an ordinance, of which a copy is hereto annexed, marked 'Exhibit B'; that the streets running north and south as laid down on said map, including Fallon street, are 80 feet wide; but the complainant does not admit the respondents' contention that by the facts hereinbefore set forth, or by any other facts, Fallon street extends further north than Tenth street. It is further stipulated that evidence may be introduced at the trial by either party as to matters not covered by the facts hereinbefore recited, and that such evidence may be taken orally instead of by deposition."

The following is the map referred to as 'Exhibit A': (Image Omitted) (Image Omitted) Exhibit B reads as follows:

'An Ordinance Declaring the Streets in the Town of Oakland Public Highways.

'The board of trustees of the town of Oakland do ordain and resolve as follows:

'Section 1. The following streets in the town of Oakland as laid down and described on Kellersberger's map of Oakland are hereby declared public streets and highways, to wit: West street, Brush street, Castro street, Grove street, Jefferson street, Clay street, Washington street, Broadway, Franklin street, Webster street, Harrison street, Alice street, Jackson street, Julia street, and Oak street; said streets are 80 feet wide, except Broadway, which is one hundred and ten feet wide, and all run in direct line from high-water mark to a line two hundred feet north of the northern line of 13th street. Also the following named and described streets: Second street, Third street, Fourth street, Fifth street, Sixth street, Seventh street, Eighth street, Ninth street, Tenth street, Eleventh street, Twelfth street, and Thirteenth street, all of which said streets are eighty feet wide, and extend from high-tide line of the San Antonio creek to a line two hundred feet westerly from the western line of West street. Also so much of First or Front street, and so much of Fallon street, as are above high-water mark.

'Sec. 2. It shall not be lawful for any person to fence across said passage of said streets, or of any one of them. Any violation of this ordinance shall be punished by fine of not less than forty dollars nor more than one hundred dollars.

'Sec. 3. It shall be the duty of the marshal to remove any and all obstructions placed in the streets contrary to the provisions of this ordinance, and for this purpose he may proceed without warrant or process to remove the same.

'Passed August 27, 1853.

'(Signed) A. W. Barrell, President of Board of Trustees. '(Signed) A. S. Hurlbutt, Clerk of the Board of Trustees.'

Page, McCutchen & Eells, for appellant.

W. A. Dow, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is a suit in equity to enjoin the city of Oakland and its officers from entering upon land claimed by complainant, and interfering with its possession thereof, or from removing therefrom any of the buildings, fences, trees, or shrubbery thereon, and from using, or attempting to use, the same as a public street; and to quiet the title of complainant to the land. The defendants claim in their answer that the land in question has been dedicated as a public street, known as 'Fallon Street,' of the city of Oakland. Some testimony was given at the trial in addition to the facts stipulated by counsel. The controlling questions for our decision are (1) whether the lands specifically described in the bill were dedicated to public use as a street by Kellersberger's map; and (2) if dedicated, whether such dedication was accepted by the city before any revocation of the dedication.

1. The general principles applicable to this case are clearly enunciated in 5 Am. & Eng.Enc.Law, 400, as follows:

'The question whether land has been dedicated to public use is one of intent. No particular form is necessary to make a dedication. A grant is not required. It may be made by parol, and proved by parol. All that is necessary is the assent of the owner, and the fact that it has been used by the public. The intention to dedicate is absolutely essential, and it should clearly and satisfactorily appear. Animus dedicandi is the vital principle; and time, though often material, is not an essential ingredient. It is not essential that the legal title should pass out of the owner, nor that there should be any grant of the use or easement to take the fee; nor is a deed or writing necessary to constitute a valid dedication; nor is any specific length of possession required. As against the original owner, the intent to dedicate must be made clear; and this intention is to be gathered from acts and declarations explanatory thereof, in connection with all the circumstances which surround and throw light upon the subject in each particular case. ' City of San Francisco v. Canavan, 42 Cal. 541, 554; Quinn v. Anderson, 70 Cal. 454, 456, 11 P. 746; Cerf v. Pfleging, 94 Cal. 131, 134, 29 P. 417; Demartini v. City and County of San Francisco, 107 Cal. 402, 409, 40 P. 496; Buntin v. City of Danville, 93 Va. 200, 204, 24 S.E. 830.

Applying these principles to the particular facts, circumstances, and conditions of the present case, we are of opinion that the dedication of Fallon street to the...