Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL
E. D. Wheeler, R. Guy McClellan, and S. W. & E. B. Holladay, for Appellant.
Attorney-General Johnson, and Philip G. Galpin, for Respondent.
JUDGES: In Bank. Garoutte, J. De Haven, J., McFarland, J., Sharpstein, J., and Beatty, J., concurred. Mr. Justice Harrison, being disqualified, did not participate in the opinion.
OPINION
GAROUTTE, Judge
This is an action by the people on the relation of R. D. Chandler to abate a nuisance.
It is alleged in the complaint that the land upon which the building stands is part of a public street in the city of San Francisco, known as Oregon Street; that defendant placed the structure in said street on or about July 1, 1885, and ever since has unlawfully kept and maintained the same. The defendant denied that the land on which the building stands ever became a public street, by dedication or otherwise; averred that he was the owner in fee of the premises described, and entitled to the use and enjoyment of the same; and for a further answer, alleged that for more than seventeen years immediately prior to August 18, 1877, he had been in the actual, open, peaceable, and exclusive possession of the property; that on said last-named day the city and county of San Francisco, falsely pretending that the premises were included within the limits of the public street called Oregon Street, wrongfully entered upon the premises and ousted him therefrom; that thereafter he commenced an action against said city and county to recover the possession of the premises; that in the answer filed therein the defendant claimed that the premises in controversy had been dedicated to public use as a street; that on May 14, 1880, a judgment was entered in said action in favor of the plaintiff herein, and against the city and county, for the possession of the land; that the court adjudged therein that neither the state of California nor the city and county of San Francisco dedicated the premises [29 P. 58] to public use; that an appeal was taken from the order of the court refusing to grant a new trial, but said appeal was dismissed on May 22, 1885, and the judgment thereupon became final; that on June 14, 1885, this defendant was placed in possession of the premises by the sheriff, and has ever since remained in possession, and erected a valuable building thereon. For further answer, the defendant alleged that he was in actual, open, exclusive, and notorious possession of the premises, claiming in good faith to own the same for many years before any action was taken by the city and county of San Francisco or the state of California in the matter of laying out, opening, or dedicating the land in controversy as a public street.
At the trial, among other matters, the defendant introduced in evidence the judgment roll in the action of A. B. Smith v. The City and County of San Francisco, commenced September 12, 1877, and the writ of restitution under which the defendant was placed in possession, as alleged in his answer.
As one of its findings of fact, the court found that the allegations of the defendant's answer, as to the matters therein set forth with reference to the action brought by Smith (the defendant here) against the city and county of San Francisco, were true, but held that the people of the state were not a party to said action, and that consequently the judgment therein rendered was no bar to this action, and thereupon ordered judgment for plaintiff. This identical question was involved in the recent case of People v. Holliday, ante, p. 241, and there decided contrary to the views held by the trial court in this case. The judgment being a complete bar to the cause of action, it becomes unnecessary to examine other assignments relied upon.
Upon the authority of People v. Holliday, ante, p. 241, the judgment and order are reversed as to that portion of the realty described in defendant's plea of estoppel as set forth in his answer in this action, and to that extent the cause is remanded, with directions to the court below to enter judgment for defendant; in all other respects, let the judgment and order be affirmed.