The record-union., 1896-03-02

FdreWell, PLAINTIFF witness, 1Ved IN
house on the west side of the old levee,
where, as he says, he Jumped" the
south half of the block between E and
F, Fifth and Sixth streets "over in the
slough He guessed at the lines
there was no survey-nobody troubled
him-fenced it in with willows out into
the water; used some of the land west of
the levee for a garden, used it every
year except when the water rose over it;
house on stills; water came up some
| times near the floor
Upon all the maps of the city known
from north II street on the American
River to Y street, a distance of thirty
two blocks. Yet the court could take
judicial notice that said street north
of the railroad On c street, a
| distance of ten blocks, has no ex-
istence in fact as a street, and has
never been dedicated to the purposes of
a street. And all of said street north of
north Bstreet was, by the charter of 1868
and by the present charter excluded from
the former corporate limits of the city.
The only map in evidence is produced
from the Recorders office. This map is
marked reduced from surveys of Cap
tain Warner, March, 1850" 1t bears. no
file mark, and it does not appear when
/ it was placed in the Recorders office,
nor by whom or by What authority it
was placed there. 1t has a Thirty-sec-
ond street running parallel with and
next easterly to Thirty first street, a
street not known ever to have been pro-
jected upon any other map.
So far as l know the survey of Cap
tain Warner is not in existence and
has never been proved in any court.
AS an historical fact, established by
tradition, it may be accepted that Cap
tain Warner actually surveyed and laid
out in streets a portion, but compara-
lively a small portion, of the area
known on the maps as the city of Sac
ramento and within its corporate linn
it's. The maps of the city, one and all,
have undoubtedly been paper projec-
tions from such surveys as Captain
Warner made.
The map introduced in evidence by
plaintiff from the Recorders office,
above mentioned, has little if any
weight as an official map of the city.
! The fact that it represents a Thirty
second street never within the corpo-
rate limits of the city rebuts any pre-
sumption that the city placed it there.
Perhaps the reason that nothing is
known in the judicial annals of Sac
ramento County of Captain Warmers
survey is the fact of its incomplete
ness and its limited area as survey;
that he surveyed upon the ground any
part Of Sixth street north of H street
is extremely improbable.
The map, therefore, relied upon by
plaintiff to show that Sixth street north
of H was at any time dedicated by the
city as a public street, or used as such,
is wholly insufficient to establish that
averment AS to the other testimony
offered to sustain the aVerment, / find
it also to be insufficient. 1t is claimed
that the Act of the Legislature and the
city ordinance recognized Sixth street,
but such recognition can be nothing
more than the recognition of an actual
condition, namely, that there We're
streets actually used as such, and paper
streets not used and incable of being
used as such. The testimony affirma-
lively shows that the city never i'm
proved or took any possession of the
street north of H, other than to build
a levee upon it, and that the Trustees
knew of and acquiesced, though infor-
maIly, in all that the railroad company
did in its operations on that portion of
the street.
Relying upon the privileges granted
by the city ordinance and the legisla
tive Act in 1862 and 1868, and upon the
condition of the ground as it was then
found, the defendants have, at great
cost, filled up the low ground in the
slough and in the street to the top
grade of the levee, and constructed the
other improvements or distractions
complained of.
AS before stated, the levee is upon
the eastern half of the street, and it
will be observed that the legislative
grant gives the right to construct and
erect such machine shops, storehouses,
etc. etc." necessary for the operation
Of said railroad upon any lots, streets
and alleys within the limits of said city
living north of said levee'; and that the
defendants have not, so far as the evil
dence shows, extended the distractions
complained of beyond the territorial
limits of the grant, for none of them are
on the eastern side of the levee.
At the trial plaintiff claimed that
they had done so, because the Act linn
levee. The general course of the whole
levee in the city is what is referred to in
the Act: and the fact that at the point
complained of the levee for short dis
tance. compared with its general
length and course, runs more nearly
north and south than east and west,
does not affect the intent and true inter-
probation of the Act, so that at the point
4 Af1t, CT 1cs
construed to effectuate, not defeat, its
design, and the westward side OF the
levee at such point must be held to be in
tended by the Act
The conclusion to which 1 have ar
rived might safely rest here upon the
authority of the Act of 1863 and the
ordinance of 1862. supplemented by.
Section 34S2 of the Civil Code, which
declares that nothing which is done or
maintained under the express author
ity of a statute can be deemed nuis-
ance." and by Marini VS.. Graham, 81
Cal, 1873.
But if it be conceded that Sixth street,
from G to E, became a public street by
the filing of the map referred TO. and
that it was accepted as such by the city,
vet this case comes fairly within the
principles adopted by the Supreme
Court in Los Angeles VS.. Cohn, 1O1 Cal.
373. There the court, quoting from
Judge Dillon in his work upon municipal
corporations, said: 'It will perhaps be
found that cases will arise of such
character that justice requires that an
equitable estoppel shall be asserted even
against the public; but, if so. such cases
viii form a law into themselves, and do
rot fall within the legal operation of
the limitation enactments.