The record-union., 1891-01-27
SUPREME COURT DECISIONS.
Filled january %. 1s91.l

Filled January 90, 1911
Appeal from the Superior Court of Los An
geles County--A. w. Hutton, Judge.
For appellant, Reardon & Daily, and c. Nc
Farland.
For respondent, Chapman & Hendrick, and
johnston d Borden.
DEPARTMENT ONE.
LATHAM, Respondent,
VS.. No 10 go
The CITY OF Los ANGELES, ~
Appellant
This is an action by the plaintiff Latham
against the defendants, the City of Los An
zeles and one l.. NJ Bigelow, to quiet title 10
certain tracts of land in the city of Los An
geles, but by stipulation between the plaintiff
and the said city-fIed in the court below
the only portion of the property described IN
the complaint, now in litigation, Is the iot
known as the engine-house lot.
There was also a stipulation entered INTO be-
tween the plaintiff and the defendant. Bige-
low, by which it was agreed, in addition to
other matters, that the piaintiH ana SAID
Bigelow were equally interested and held in
equal and undivided parts the lot known as
the Engine-house lot"
effect that the plaintiff and said defendant
Bigelow are the owners in equal shares OF said
engine-house lot, and that the City OF Los
Angeles has no right in or title TO the same.
The defendant city moved for new trial.
which was denied, and from the Judgment
and the order denying its motion for new
trial. appeals. The appeal is from the whole
Judgment, and the defendant Bigelow has not
been served with notice of appeal.
Inc InQln6S support lIlS
The plaintiff deraigns title through grant,
or order, made by the Ayuntamiento of the
pueblo of Los Angeles to one Leandry, and
the possession given him by the Alcaide, in
pursuance of such order.
That the pueblo had authority to make the
grant of the land in question to said laundry,
If IL was a house lot, is not questioned; but
it is claimed-as we understand the con-
tention of appellant-that the grant is void
for uncertainty, and for the further reason
that prior to the alleged grant, which was in
1886, the land in question had become pub
lie plaza or street, and for that reason could
not be granted for pirate purposes.
We think, however that the petition and
the orders made by the authorities of the
pueblo thereon, and the report of the Alcalde
describing the land. of which he had given
iLeandry possession by order of the Ayunta-
imiento when read together, as they must be-
are sufficiently definite, and that the calls
Wherein embrace the land in controversy was
shown upon the trial by uncontradicted ex-
trinsic evidence. Nor is the evidence suffi-
Gent to show that at the date of this grant the
Hot in controversy was a public plaza ana
therefore beyond the authority of the pueblo
to grant. 1t does appear that 1t was vacant,
and that 1t was used by owners of adjacent
9ots in going to and from such lots, but it IS
not shown that such lots were granted, with
reference to this lot, as plaza, or that II ever
had been in any manner set apart or recog-
nized by the authorities as plaza. 1t is also
shown that upon certain days the public
would use it as a place for celebrating ana Tor
other public amusements. But all OF this
only shows that being vacant and unoccupied
have been, and is not sufficient to overthrow
the presumption that the authorities OF the
pueblo of Los Angeles acted within the limits
of official authority in making to Leandry the
grant or concession in question. That such
presumption attaches to the grant We are con-
sidering is the effect of the decisions of this
court in Cohas VS.. Raisin g Cal. 453l; Payne
VS.. Treadwell II 6 Cal. 220).
We cannot say that the evidence in this
case is such that the trial court must neces-
sarily have found that since said grant Lean
dry or any of those who have succeeded to his
title dedicated the lot in question To the pub
lie as q plaza and such being the state of the
proof we do not feel authorized to set aside its
finding upon this point. When 1t is sought to
show that an owner has. without a convey
of the public, by way of gift or abandonment,
the proof ought to be such as to clearly show
that such was the owners intent.
In CRUDE VS.. Nichols (36 III. 92,) it is said:
'"The intention TO dedicate is . vital con-
trolling element III such grant. A dedica-
ton is not an act of omission to assert q right,
but it is the affirmative act of the mind OF the
donor. 1t arises upon the action and not upon
the passive condition OF the mind of the
owner. The mere non-assertion OF a right
does not establish u dedication, unless the cir
cumstances establish the purpose or intention
to donate the use to the public
There is no evidence in the record of any
express declaration or admission by Leandry,
or any successor in interest, showing that such
dedication was made.
The petition of Mrs. O'Campo praying for
san exchange or indemni1ication for certain
lands belonging to her and now occupied by
the public, being the lot at the entrance of
Negro alley, into the public square," suppos-
ing il to refer to the land in controversy is not
an admission that the same had been dedi-
Gated to the public. 1t is rather assertion
of her right 10 it and willingness to either ac-
cept pay for 1t or an exchange of other lands,
and the action of the City Council directing q
concession to be made to her of other land in
accordance with her petition, is not consistent
with the claim now made that the lot in con-
troversy was then the property of the city.
1t would appear from the evidence that in
accordance with this resolution of the City
Council deed was drawn up and signed by
the Mayor, conveying to Mrs. O'Campo cer-
tain lot in the City of Los Angeles. But
whether this was actually delivered to her
does not so clearly appear. 1t was, however,
delivered to one Olvera, supposed by the
Mayor to be her agent. But the deed itself
was not produced nor any witness who had
ever seen 1t in the possession of Mrs. O'Campo,
and it was admitted that subsequent thereto
the city had conveyed the same lot to another.
We cannot say from this evidence that the
exchange contemplated by the petition of
Mrs. OCampo and the City Council was ever
consummated. And in this connection il
may be added that the testimony shows that
the first public act by which the city at
tempted to assert dominion over the lot III con-
troversy was by building the engine house
which was in 1884.
The conclusion which we have thus reached
upon the merits makes it unnecessary to de
terinine whether the failure to make the de
fendant Bigelow q party to this appeal en-
e titles the respondent to a Judgment dismiss
ing the appeal, and upon this point we ex
press no opinion.
Judgment and order affirmed.
De HAVEN, j.
We concur:
HARRISON, J.,
PATTERSON X