The record-union., 1891-03-16


DEHAVEN, j.,
GARoUTTE, J.
Filled March I, 1871
IN BANK.
LOGAN EFT AL, Appellants,
VS.. No. 1892.
ROSE EFT AL, Respondents.
This action was for damage against
Rose, as roadmaster, and the other de-
PENDANTS as his employers, advisers,
| ETC., for the removal OF embanllments or
approaches TO the plaintiffs warehouses.
At the trial, on the conclusion of the
the plaintiffs case, it appeared that
neither Gray, Streeter nor Smith, three
of the defendants, had anything to do
with the matter, so that a non-suit was
| granted as to them.
After the argument and submission of
the case, the court, sitting without a jury,
gave Judgment in favor of the defendant
Rose for costs, and dismissed the plaint-
| IFS complaint on its merits. From the
| judgment and All order denying new
trial the plaintiffs appeal.
They claimed the right to use and pos
sesS the land III controversy under lease
from the Central Pacific Railroad Com
pany, who had derived its title by deed
from Charles Crocker, and he by deed
from the Contract and Finance Com
pany." The defendants claimed that the
land was dedicated to the use of the pub
lie as a street in the town of Biggs, in
Butte County, before the plaintiffs OBJ
tanned their lease.
|. The main question at issue here is
whether the tenth finding of fact in
reference to that dedication is sustained
by the evidence. The plaintiffs claim
that the street was dedicated only to the
extent of sixty feet in width, but admit
that if the dedicated width was of as
/ nlC MT
| and order should be affirmed.
The theory of the case as presented by
! the appellants seems to be that Charles
Crocker lin whom the legal title was
vested by the Contract and Finance
| Company on October 26, 1870, by his
Central Pacific Railroad Company strip
of land ninety feet wide, which was a
part of the land he acquired by his deed
from the Contract and Finance Company,
revoked any offer of dedication of the
land in controversy as street which had
been before made, and that this revoea-
ton took place prior to any acceptance
by the public of the street.
There was evidence which tended to
show that as early as l870-1S7l there was
a map made of the town of West Biggs by
the then owner of the land, upon which
| there was laid out blocks and streets,
which last were all indicated to be eighty
feet wide, except the one in controversy
here, called California street, Between
the east line of the blocks of land, as laid
out, and the track of the Central Pacific
| Railroad, that map shows a space of l50
| feet wide, in which is written the words
California street." While the Contract
and Finance Company owned land in
! Biggs, they made deeds to V. Bunnell, j.
| r. Burlington, NJ. Rosenberg and T. r.
| Fleming of certain portions of it de-
scribed as being in certain "blocks'' as
laid down on that map. When Crocker
became the owner he made deeds of other
| lands so described, with reference to that
map, to T. r. Fleming, Benjamin Me-
Way, Sylvanus Shurtletf, s. Stockwell,
William Bolt and Barney Mushholt.
The map as originally made contained
the words, between the front of blocks
on the west side Of the railroad track,
"California street." A line in pencil
running along the space between the
front row Of blocks on the west side, and
the railroad track, and running through
the written words, California street." I"
indicated the street as sixty feet wide.
This line was run in pencil just before
the deed of Charles Croker to the Central
| Pacific Railroad Company, which deed
was not made until April %, 1886, many
years after the map was made, and the
deeds to the various parties to whom Mr..
! Crocker and the Contract and Finance
| Company had sold blocks or parts of
! blocks OF land with reference to the map,
tie first deed of the latter having been
made as early as August Is, 1873, and the
earliest of the former having been May
10, 1878, the last of these deeds to in
dividuals having been made by Mr..
Crocker on October IL, 1884.
The evidence introduced by the defend
ant tended to show that the public had
used this strip marked California street,
| as highway or street for about fifteen
years before the commencement of this
action, to the extent OF eighty feet wide,
and that the entertainments removed by
the defendant were upon the line of the
street, taking it at eighty feet.
1t is apparently claimed by the plaint-
ifs that even if dedication of the street
ut eighty feet wide had been offered by
the making of the map and the sale OF
land with reference thereto, that when
| Charles Crocker, in 1886, decided the
ninety feet wide strip to the Central Pa
clflc railroad Company, that this was a
revocation of the offer, and that up to
that time the public had never accepted
! the dedication by user.
1t was said in People VS.. Reed tS1 Cal
79): "Conceding that plating of prop
erty and sale of lots constitutes dedica-
ton, as between the owner and purchas-
ers under him, of the streets delineated
on the map, in order to constitute dedi-
cation which can be taken advantage of
| by the public authorities of city, the
| offer of dedication must have been ac-
cepted by such authorities, either by
user or some formal act of accept
ance." And at page SOFT said: "Such accept
ance must be within reasonable time
after such offer Of dedication, and if not
accepted, the owner may resume the pos
session of the property and thereby re-
woke his offer"
Tested by these rules, which seem to
have been approved in City of Eureka
VS.. Croghan Isl Cal. SO, and City of Eu-
reka VS.. Armstrong (S3 Cal. 623), it ap-
pears to us that in this case there existed
sufficient offer of dedication, by the
making of the map, and the sale of lands
with reference thereto. The user by the
public for long time prior to what is
claimed to have been a revocation by the
deed of Charles Crocker to the Central
Pacific Railroad Company, under
whom the plaintiffs claim by
lease of the premises. is a sufficient ac /.
ceptance of such offered dedication to
make 1t complete before the attempted
revocation, at least to the extent of
street eighty feet in width, which is
enough for the purposes of this matter.
The further point is made that Charles
Crocker, as trustee of the Central Pacific
Railroad Company, had no authority to
dedicate the land for street 1t does not
appear distinctly from the record,
whether the Contract and Finance Com
pany or Mr.. Croker first made the map,
but they both sold land with reference to
| 1t. and the land was accepted by the pub
lie in using it as street and highway, as
against both of them. But in addition to
this, there is nothing in the record to
show any trust expressed in the decd