Opinion
Rehearing denied.
Appeal from a judgment of the late District Court of the twelfth judicial district of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
The ratification by the state legislature in 1858 of the city ordinances of 1855, and the order of October 16, 1856, made the latter valid as of their respective dates. (Broom's Legal Maxims, 676; Pickett v. Hastings , 47 Cal. 284; Langdeau v. Hanes, 21 Wall. 530; Payne v. Treadwell , 16 Cal. 233; Merryman v. Bourne, 9 Wall. 600; Seabury v. Arthur , 28 Cal. 150; Landes v. Brandt, 10 How. 348; Megerle v. Ashe , 33 Cal. 85; Gibson v. Hibbard , 13 Mich. 217.) The ordinance No. 822 is a grant in praesenti, without exception. The privilege reserved therein of selecting public squares is strictly limited as to time and mode of selection, size of squares, and compensation for excess over one twentieth taken from any possessor. By its neglect to select in time, the city lost its right of selection. (Merrifield v. Cobleigh, 4 Cush. 178; Ludlow v. N.Y. etc. Co ., 12 Barb. 440; Norris v. Hensley , 27 Cal. 443; Craig v. Wells , 11 N.Y. 315; Railroad Co. v. Baldwin , 103 U.S. 426.)
S. W. & E. B. Holladay, John Currey, and W. C. Belcher, for Appellant.
John L. Love, for Respondent.
The case is identical with People v. Holladay , 68 Cal. 439, and should be affirmed on its authority. See also Hoadley v. San Francisco , 50 Cal. 265; Sawyer v. San Francisco , 50 Cal. 370; Visalia v. Jacob , 65 Cal. 434.
JUDGES: In Bank. Thornton, J. McKee, J., McKinstry, J., Sharpstein, J., and Myrick, J., concurred.
OPINION
THORNTON, Judge
[12 P. 126] This action was instituted to quiet title of plaintiff to two parcels of land situate in the city and county of San Francisco, and within that portion of said city and county to which the ordinances 822 and 845 of the common council of said city and county, and an order passed by the justices of the peace of the defendant corporation on the 16th of October, 1856, ratified by the act of the legislature of this state approved March 11, 1858, apply. One of the parcels of land in controversy forms a part of Alta Plaza, and the other a part of Hamilton Square.
This cause was here before on appeal (see 50 Cal. 265), and on that appeal this court held that the plaintiff acquired no title to the lots or squares in question either by the Van Ness ordinance or by adverse possession. The questions are presented now under the same state of facts, and the above rulings of the court must be regarded as the law of the case in all its stages. In this condition of things, we see no reason why the points above mentioned should be further considered. (See Sawyer v. San Francisco , 50 Cal. 370; People v. Holladay , 68 Cal. 439; Visalia v. Jacob , 65 Cal. 434.)
The point made on behalf of plaintiff as to the fact that the squares in question embrace more than one twentieth of the land in possession of the plaintiff, and that the excess above such one twentieth was taken without compensation as provided in section 6 of ordinance 822, we regard as settled by this court in Sawyer v. San Francisco, supra, adversely to the contention of the plaintiff.
The reasons on which the rule just above mentioned, as to the taking of more than one twentieth, as settled in San Francisco v. Sawyer, supra, is rested, apply to the point made here that more than one block was taken to make up the squares in controversy. The survey and map of these squares so including four blocks each was approved, ratified, and confirmed by the act of the 11th of March, 1858 (Stats. 1858, p. 53), and from such approval the survey and map above mentioned acquired validity. Whatever rights the plaintiff acquired under the Van Ness ordinance, he took subject to the act of 1858, which approved the survey and map above mentioned.
This is true under any proper application of the doctrine of relation invoked on behalf of plaintiff. The act of approval ratified the ordinance 822, allowing title to be made under it by a possession designated in it, and ratified also ordinance 845 and the order of the justices approving the survey and map above mentioned; and when the act of 1858 was passed, the doctrine of relation could vest in the plaintiff no greater rights than he took under the act of 1858. Any rights which plaintiff derived under the act of 1858 would be subject to all its provisions. At the same time that ordinance 822 was ratified, the order approving the map and survey above mentioned was also ratified, and whatever rights plaintiff took under the act were subject to the provisions of the ordinance and order so ratified. We find in the case no trace [12 P. 127] of a contract between the plaintiff and any one which ever vested in plaintiff any rights different from those accorded to him herein.
The above embraces all the points in the case which are necessary to be considered. We find no error in the record, and the judgment and order must be affirmed.
Ordered accordingly.