1. The Statute of Limitations will not avail the appellants. (San Francisco v. Sullivan et al. 50 Cal. 603; Hoadley v. San Francisco , 50 Cal. 265; Sawyer v. San Francisco , 50 Cal. 370; Schulte v. N. P. Transportation Co. 50 Cal. 592; Weber v. The Board of State Harbor Commissioners, 18 Wall. 57.) Unless the public may take possession, no public improvement of a street can be made; and possession in a private person would be a perpetual injunction against such improvements.
The lease mentioned in the case of Pope & Talbot v. San Francisco et al., on argument with this case, and submitted on the same trial and evidence with this, is a lease from the Board of State Harbor Commissioners to the appellants of the easterly half of East Street, directly adjoining upon the east the premises mentioned in the complaint; whereby they admitted the existence of East Street.
2. Thepremises designated as East Street have been dedicated to public use. In " An Act to provide for the disposition of certain property of the State of California," passed March 26th, 1851, (Statutes 1851, p. 307) see mention made of East Street, in sec. 1 thereof, in giving boundaries or lines of the San Francisco beach or water lot property. By that act the beach and water lot property was granted to the city for ninety-nine years. It is a familiar principle that where the sovereign, by deed or grant, bounds the property conveyed on a street as such, that act is a dedication of that street on the part of the grantor. (Angell on Highways, sec. 149; People v. Lambier, Denio, 9, 19; Wyman v. Mayor, 11 Wend. 486; Matter of Seventeenth Street, 1 Wend. 262; Matter of Lewis Street, 2 Wend. 472, 474-5; Matter of Thirty-second Street, 19 Wend. 128; Matter of Twenty-ninth Street, 1 Hill, 189; Hannibal v. Draper , 15 Mo. 639; Vick v. Vicksburg, 1 How. Miss. 379; Jersey City v. Morris Canal Co. 1 Beasl. 547.) That act of dedication by the State was adopted in all its parts, without any reservation whatever, and thereby a dedication made by and on the part of thecity itself, by virtue of an Ordinance, numbered 326, approved April 5th, 1853. (See volume of " Ordinances and Resolutions," published 1853-4, p. 50.) And " An Act to provide for the sale of the interest of the State of California in the property within the water-line front of the City of San Francisco, as defined in and by the Act entitled 'An Act to provide for the disposition of certain property of the State of California,'" passed March 26th, 1851, approved May 18th, 1853, whereby the official map of the city was recognized and approved with reference to the water-lot property. (Statutes of 1853, sec. 7, p. 221.)
3. Again, by " an act to provide for the sale of certain property of the State of California, within the water-line front of the City and County of San Francisco," approved April 26th, 1858, all of the streets mentioned and referred to in the said Act of March 26th, 1851, to the full extent of said streets, and the streets as laid down on the map or plat made by J. J. Gardiner, mentioned in sec. 2 of the Act of 1858, are confirmed, established, and dedicated to public use as streets. All acts conflicting therewith are repealed. (Stats. of 1858, pp. 323, 324, 325, secs. 7 and 8.)
On the Gardiner Map the width of East Street is one hundred and thirty-seven and one-half feet. By virtue of sec. 8 of an Act of 1864, amendatory, etc., of an Act of 1863, providing for the improvement, etc., of the wharves, etc., approved March 5th, 1864, the width of East Street was made to be one hundred and fifty feet, by widening the same to the easterly twelve and a half feet. (Stats. of 1863-4, p. 143, sec. 8.) East Street is declared an open street and thoroughfare by Act of the Legislature approved March 27th, 1868, entitled " An Act to authorize the Board of State Harbor Commissioners to lease a portion of the water front of the City and County of San Francisco." (Stats. 1867-8, p. 408, sec. 1.) All the original streets as laid down upon the map now in the office of the City and County Surveyor of the City and County of San Francisco, signed by C. H. Gough, Michael Hayes, and Horace Hawes, Commissioners, and by John J. Hoff, Surveyor, and generally known as the " Van Ness Map," and all other streets, lanes, alleys, places, or courts then dedicated to public use, or which should thereafter be dedicated to public use, lying between the Bay of San Francisco and Johnston and Larkin Streets, etc., were, on the 25th day of April, 1862, declared by the Legislature to be open public streets, etc. (See Stats. of 1862, p. 391, amendment to sec. 36 of the Consolidation Act.) When the Bay of San Francisco is mentioned in that section, in bounding the District upon one side, with Johnston and Larkin Streets as the other boundary, the " water front," as established by the Act of March 26th, 1851, is intended. (Stats. 1851, p. 307, etc. See Dana v. Jackson Street Wharf Company , 31 Cal. 121, where said act is referred to by a wrong date.)
By an amendment to that section, made April 4th, 1870, all the streets as laid down upon the map signed by George C. Potter and Thaddeus R. Brooks, and now in the office of the City and County Surveyor, and made official by the Board of Supervisors, as per Order No. 684, January 30th, 1866, and all other streets, etc., now dedicated to public use, are declared to be open public streets. (Statutes of 1869-70, p. 890; see amendment to that section, stats. 1871-2, p. 804.)
That section, as it has stood ever since the 25th day of April, 1852, has furnished ample authority to the Board of Supervisors to establishand ascertain the width and dimensions of all the streets, etc., therein referred to (including East Street). The city and county was authorized to establish the lines and grades of streets, etc., through a Board of Civil Engineers, but according to the original lines, etc. (Stat. 1862, p. 407, etc.) Order No. 684, above referred to, was adopted pursuant to that statute. The map therein referred to is in the office of the City and County Surveyor. (See Order 684 in Municipal Reports of 1866, p. 384, etc.) East Street is laid down on all the city maps.
Dedication, by user or otherwise, is as easily proven against the Government as against an individual. (Regina v. East Mark, 11 Ad. & E. 876; Phipps v. The State, 7 Blackford, 512.)
If a street be dedicated by Act of Parliament, it is not necessary that it be adopted by the city; and even if dedicated by user, at common law, the city must keep it in repair. (Rex v. Inhabitants of Leake, 5 Barn. & Ad. 496, etc.)
4. Encroachments on public streets are public nuisances. (El Dorado Co. v. Thos. Davidson , 30 Cal. 520; Wetmore v. Tracy, 14 Wend. 250; Hart et al. v. Mayor, etc. of Albany et al. 9 Wend. 571; Denning v. Roome, 6 Wend. 651; Gunter v. Geary et al. 1 Cal. 467; Robbins v. Chicago City, 4 Wall. U.S. 657; Vale v. Bliss & Davis, 50 Barbour, 358; Nevens v. City of Peoria , 41 Ill. 503; Attorney-General v. Cambridge C. Gas Co. Law Rep. 6 Eq. 282; Wales v. Stetson , 2 Mass. 143.)
5. No length of time will legalize a public nuisance. (Folkes v. Chads et al. 3 Doug. 340-3; Voght v. Winch, 2 Barn. & Ald. 662, 671.) And that it is only by Act of Parliament that a public right in a navigable river can be determined. (The King v. Montague, (6 Geo. IV) 4 Barn. & C. 598, 602, 605.) And also that a public right in a navigable stream can only be determined: 1st. By Act of Parliament. 2nd. By writ of ad quod damnum, and an inquisition found thereon by a jury. Or, 3rd. By natural causes, as by the receding of the sea, etc. (Mills v. Hall & Richards, 9 Wend. 315; Weld v. Hornby, Clerk, 7 East, 199, 200, and new edition, vol. 4, p. 95; Dygert v. Schenck, 23 Wend. 445, 447; Knox v. Chaloner, 42 Maine, 150.) And that the remedy against a public nuisance by abatement is in all respects concurrent with that by indictment. (Penwick v. Morris, 3 Hill, 621.) And that the nuisance may be abated at common law, or may be indicted. (Russell on Crimes, vol. 1, page 330; People v. Cunningham et al. 1 Denio, 524, 536; Commonwealth v. Upton, 6 Gray, 473; City of Philadelphia v. The Phila. & R. R. R. Co. 58 Penn. 253.) The Board of Supervisors of the city and county are authorized to direct, etc., the summary removal of nuisances and obstructions in the streets, alleys, highways, and public grounds of said city and county, and to make regulations therefor. (Stats. 1863, p. 540, sec. 1, par. 2. And the same statute, in Municipal Reports of 1869-70, p. 500.)
6. At common law a common nuisance may be abated by any of the King's subjects. (Blackst. Com. book 3, p. 5.) And they may cut down a gate erected across the public highway. (Cro. Car. 184.) So of a house built across a highway, etc. (Blackst. Com. book 3, p. 5, note 6; 2 Salk. 458; Gunter v. Geary et al. 1 Cal. 462.) The Court held that if the erection of Gunter was a nuisance, the defendants were justified in removing it, and yet the power to remove a nuisance summarily was not expressly given by statute in the charter of the city at that time, either in 1850 (p. 223) or in 1851 (p. 357). The statute of this State defining what are nuisances and prescribing a remedy by action does not take away any common-law remedy in the abatement of nuisances which the statute does not embrace. (Stiles et al. v. Laird , 5 Cal. 120.) Any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance, may bring an action, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. (Sec. 249 Practice Act.) And the obstruction upon a street may be removed, and the nuisance thereby created abated, by action in the name of the People of the State, by the Attorney-General on the relation of any citizen of the State. See McCauley v. Weller , 12 Cal. 500, etc.; Crittenden's brief, where the subject is ably discussed; 2 Smith's Leading Cases, 180 et seq. title " Easement," where it is clearly shown that a highway is for the free use of all the King's subjects, and that the remedy is by proceedings in the name of the King. (Practice Act, sec. 310; Code of Civil Procedure, sec. 803. See, also, Clark v. Saybrook , 21 Conn. 326-7, opinion of Storrs, J.)
In cases ofpublic nuisances upon streets, as by placing obstructions thereon the remedy for the Crown is either by information of intrusion at common law, or by an information at the suit of the Attorney-General in equity. (Story's Eq. Jur. secs. 921, 922.)
A dedication by act of the Legislature, or of a Common Council, is an exercise of governmental powers, and not those of a mere property holder.
It was by legislation, in the strict sense of the term, that the dedication was made, and only by legislation could the public franchise be destroyed. (McCracken v. The City of San Francisco , 16 Cal. 620, 621.)
7. As to East Street, north of Market: People ex rel. Jacobs v. Kruger , 19 Cal. 411; People ex rel. Burr v. Dana , 22 Cal. 11. This last case is a good authority to show that East Street, from Market to Folsom, existed in 1851. (Stats. 1851, p. 313, chap. 49; Stats. 1858, p. 323, chap. 337.)
As to the law of streets, etc., as to the right to close the same, see Pumpelly v. Green Bay and Mississippi Canal Co.
It is now settled that a Court of Equity may take jurisdiction, in cases of public nuisance, by an information filed by the Attorney-General; thejurisdiction seems to have been acted on with great hesitancy and caution. (People v. Davidson , 30 Cal. 379, 387; Attorney-General v. Cleaver, 18 Ves. 216; Attorney-General v. Utica Ins. Co. 2 Johns. Ch. 382; Rowe v. Granite Bridge Co. 21 Pick. 344; Rowan's Executors v. Portland, 8 B. Monroe, 240, and cases there cited. See, also, the opinions in the cases of Weber v. The Board of State Harbor Commissioners, 18 Wall. 57; and Henshaw et al. v. Bissell, 18 Wall. 225.)
JUDGES: Crockett, J. Mr. Justice McKinstry did not express any opinion.
OPINION
CROCKETT, Judge
That East Street was duly dedicated as a public street can admit of no serious doubt, on the facts established at the trial, and it is not denied that at the time of the commencement of the action the defendants were, and for a long time prior thereto had been, using a portion of the street as a lumber yard, obstructing the same with piles of lumber, and preventing the use of it by the public as a highway. Apparently, the only defense seriously relied upon was the Statute of Limitations, the defendants claiming that they had been in the actual adverse occupation of the premises for more than ten years next before the commencement of the action. Assuming that the evidence proved such actual adverse occupation for ten years or more, it must be considered as the settled doctrine of this Court, since the decision in Hoadley v. San Francisco , 50 Cal. 265, that no one can acquire by adverse occupation, as against the public, the right to obstruct a street dedicated to public use, and thus prevent the use of it as a public highway.
Judgment and order affirmed, and it is further ordered that the judgment herein be entered as of the day on which the cause was submitted.