86 FEDERAL REPOR'l'ER. . .j.
jects of the litIgation, or out of wbIch the litigatIon ari.sEls, are sQ conne9ted by theIr circumstances as to render It·· proper and convenient that. they sbOuId be examined in the same suit, .and fuIlrellef. given by one cOIXlpreb.ensive decree. A different rule would often prove to be both oppressive. aJ;ld mischievous, and could result in no possible benefit to any litigant, whose' object was not simply to harass· his adversary, but to ascertain what were his just legal rights."
Looking at the substance of this case, it is obvious that the rights of all the parties can most conveniently be tried in one litigation, and that the alleged of so dping are largely fictitious,and of no practical importance. The demurrers will be overruled.
LONDON & SAN FRANCISCO BANK,)LImited, v·. CITr OE' OAKLAND et aI. (Circuit' Court, N. D. dallfornia. Marc!i . i4; 1898.). No. 12,190.
DEDICATION OF STREET-FILING OF MAP-ORDINANCE
A map of a town in California was sworn to by the owners of the land August 3, .1853. A deed of partltionamong the owners was executed August . 15th, m$ing express to the map; and an ordinance was passed August 27th, declaring the' streets laid down 'and descriped' on .the map public streets and highways. The map was filed for record September 2d following. Held, that .the acceptance took effect and 'the dedication became complete immedi!ljtely on the til¥Ig of the map.
That only a portion of a street which has been dedicated and accepted as a pubUc street is opened up does not 'devest" or impair the right of the pUblic to open and use the remaining parts whenever the exigencies of pUblic travel and wants require it. .
It being a rule of property I:n California that title cannot be acquired to public property by adverse possession, the right of a city to open up a street once dedicated and accepted Is not impaired by the fact that it has been fenced for about 40 years; and occupied as a residence the greater part of the time, and that valuable buildi:ngs have been erected upon it.
Suit in equity to enjoin the city of Oakland and its officers from entering upon the lands of the complainant, and from using, or attempting to. use, the same as a public street, and to quiet the title of the complainant to the land as against the defendants. Upon the filing bill,an order to show cause: was issued, and it temporary restraining order granted, which was subsequently continued until the tinal disposition of the case. :,' . ',. Page, MCClitchen & Eells, .for co,rUpkinant. J. K. Piersol and W. A. Dow,for MORROW, Qh,cuit Judge. This is a suit equity, brought to enjoin the city of Oakland and its officers from entering'upon the land of the complainant,and from using, or attempting to use, the same asa public street, 'and to olthecomplalnant to. the said land as against the defenda},its.lJpon the filing of the bill, an order to show cause ·was issued, and it temporary' restraining' order granted. The order, upon the heariIlg, was continued inf?rce,byconsent until
& SAN FRAN01SCOBANH:'V. CITY
the disposition of the Spjt. The defendailtsinterposed, a answer, to which the compla,Uiant filed its ' The principal facts in controversy have -been stipulated between the parties., Some additional testimony was, however, introduced on behalf of the ;defendants; The stipulation of facts' is as follows:
"That complainant was incorporated, as averred in its bill. That the,map mentioned in respondents' answer was filed and recorded by the persons from whom complainant deraigns title, and who were the owners in common of a tract of land embracing the, land ,in controversy and the other lands shown ()nsaid map, on September 2, 1853; and that the copy attached to the answer, and marked 'Exhibit A,' is a' full, true, and correct copy of said map. That. the Rancho De' San Alltoni9 was granted by the Spanish governor of California. Iii, 1820, to Luis Peralta, who divided it among his sons, to one of whom, Vicente Peralta" he allotted the land bounded on. the west by the Bay()f San Francisco, on the soUth and east by the Est'uary of San Antonio (designated on, the Kellers1;lerger Illap as 'Bay of Contra Costa' and 'Bayou'), and on the north by a line extending from the Bay of 1;lan Francisco to said estuary, and lying north of the mOst northern tier of blocks shown on said Kellersberger's map. .,That. the claim Of, Vicente Peralta to 'said land was confirmed .in 1854 by the board of commissionersllppointed by act of congress to Inquire into California land grants of Spanish or origin; and, on appeal to tlfe United States district court, said confirmation was affirmed in 1855, and the supreme court of United States, in U. S; v. Peralta, 19 How. 343, affirmed said decision, and patent accordingly has IsSued from the United States conveying and confirming said lands to the' successors in interest at Vicente Peralta. That, at the date of filing said Kellersberger map, the owuers signing the same (who have succeeded to all the rights of Vicente Perillta in 'all said lands so allotted to him) owned a tract of land embracing all the lands laid off in blocks by the Kellersberger map, and all the land surrounding the portion so subdivided Into blocks, and extending therefrom to, said exterior boundaries of the Vicente Perillta allotment. That said exterior strip or margin was not partitioned by said partition deed, but remained in undivided and common ownership for upward of ten years thereafter, unless the court shall hold that the premises in controversy were dedicated by said map to the public as a portion of Fillion street. That said map, was made by said owners for the purpose of a partition and illlotment of the blocks thereon laid down amongst themselves; and on the said 15th day of August, 18.'53, simultaneously with the filing of said map for record, said owners made partition of said blocks, allotting the same amongst themselves by the numbers and designations of the various blocks "thereof as laid down, numbered and designated upon said map, and executed amongst themselves reciprocally a deed of partition whereby block 166 (but not the lands in controvers:r) was allotted and conveyed in severalty to John C. Hays John Capet'ton, two of said owners; and the title of the complainant in this suit to the land in controversy is derived from said tenants in common by executed by them subsequently to said partition deed. The title to said bloC'J!: 166 Is vested in other persons, not parties to this action, who hold the same under conveyances by said Hays and Caperton. That. after said partition was made, the respective parties thereto sold and conveyed the lands in their respective allotments to various persons, and from time to time describing the parcels in the convel'ances executed by them by the numbers and descriptions thereof as shown upon said map, and referring to said map by its title of 'Kellersberger's Map of Oakland' for particUlarity of description, 'l.'Hat about the year 1855, and at all times since, the land in controversy in this action was and is inclosed by substantial fence, and since 1858 It has been occupied as a residence. That the land claimed by respondents' answer to be a portion of Fallon street adjacent to complainaut's property has never been actually opened or used as a street, but that other portions of Fallon street, to wit, from Sixth street to Eighth street, inclusive, have been for many years so opened and used by the public under the dedication made by the deed of partition and the said map. That tl;1e premises areuqw Improved as stated in complainant's complaint, :;md are of the value therein stated. That the board of trustees of the town of Oakland, on the 27th day of August, 18G3, passed and adopted an ordi-
86 FEPERAL REPORTER.
nance ot which a copy is hereto annexed, marked 'Exhibit B.' That tile street!!. running north and south, as laid down on said map, including Fallon street, are SO wide; but the complainant does not admit the·. respondents'· contention that by the facts hereinbefore· set forth, or by any other facts, Fallon street extends further north than Tenth.street."
The ordinance declaring the streets in the town of Oakland public . highways reads as 10llows:
"The board of trustees of the. town of Oakland do ordain and resolve as follows: . . "Section 1. The 'fpllowing streets in town of Oakland, as laid down and described on Kellersberger's map ,QfOakland, are hereby declared pUblic streets and highways, to wit: West strellt; Brush street, Castro street, Grove Jefferson street, Clay street, Washington street, Broadway, Franklin street, Webster street, :aarrison street; Allicestreet, Jackson street, Julia street & Oak street. SaId streets are· 80 feet wide, except Broadway, which Is one hundred and ten feet wide, and all.1"W1.. In direct line from high·water mark to a line two hundred feet north of the nO.rthern line of 13th street; * * * also so muoh of First or Front street andllo much of Fallon street as are above hiflh-water mark. . . . 'Sec. 2. It shall riot beI9.wful for any person to fence 8,cross said streets, or to erect bulldings thereIn, .or in any WilY to .obstruct. the free passage of said streets, or of any 0Be of them.. Any violatIon of t1).is'ordiDance sball be punished by fine of," etc.' . . .. . "Sec. 3. It shall be the duty of. tl;te marshal to remove any and all obstructions placed in the streets contrary to the provisions of ,this ordinapce, and for this purpose he may proceed without warrllllt or. process to remove the same. ":Passed August 27th, 1853. . "[Signed] A. W. Barrell, President of Board of Trustees. S. ,Hurlbutt, Clerk of the Board of Trustees." "[Signed]
The map known and designllted as the "Kellersbe:rger Map of OaklaM" .was introduced in evjdence. As stated in the stipulation of facts, it was filed and recorded on September 2, 1853, ll.nd it was testified at the heating that it had always been considered as the official map of Oakland. . It shows blocks and streets regularly laid out, the blocks being $ystematically numbered, and the streets properly named and designateo.. The deed· of partition executed August 15, 1853, makes express reference to this map; and. as the stipulation shows, "said map was made by said owners'for the purpose of a partition and allotment of the bl,ocks thereon laid down amo,ngst themselves." That the filing and recording of th,is map amounted· toa dedication of the streets laid out and designated on the map, and that this dedication became irrevocable when accepted by the proper public authorities, is v. White, well settled. Irwin v. Dixion,9 How. 12; City of 6 Pet. 431; Barclay v. Howell, Id.498; New Orleans v. U. S., 10 Pet. 662, 714; Groganv. Town of Hayward, 4 Fed. 161; Simplot v. Railway Co., 16 Fed. 350; Gregory v. City of Lincoln, 13 Neb. 352, 14 N. W. 423; Hurley v. Boom Co., 34 Minn. 143,24 N. W. 917; Hanson v. Eastman, 21 Minn. 509; Warden v. Blakley, 32 Wis. 690; Rowan's Ex'rs v. Town of Portland, 8 B. Mon. 232, 238; Yates v. Judd, 18 Wis. 126; People v. Reed, 81 Cal. 70, 22 Pac. 474, and cases there cited; 2 Dill. Mun. Corp. (2-d Ed.)p. 60(;, and cases there cited; Elliott, Roads & So p. 111 et seq.; 5 Am. & Eng. Enc. Law,'p. 407, and cases there collated. It is objected that there was no valid acceptance, for the reason that the ordinance of August 27, 1853, declaring the streets laid down and
LONDON II: SAN FRANCISCO BANK V. CITY OF
described on the Kellersberger map of Oakland as public streets and highways, is not sufficiently specific. This objection is clearly untenable;' A comparison of the streets as laid down and described on the map referred to will be found to agree exactly with the streets named and designated in the ordinance. It is further contended thatthe fact that the ordinance was passed on August 27, 1853, while the map itself was not filed and recorded unW September 2, 1853, some five days subsequent,is a fatal defect to a valid acceptance. This objection also is untenable. The deed of partition, which made express reference to the Kellersberger map, was executed and filed for record on August 15, 1853. The map had evidently been made previously, for it was sworn to on August 3, 1853. The map was therefore in existence when the deed of partition was filed for record. It was actually filed for record in the county recorder's office on September 2, 1853, only five days after the resolution declaring the streets'laid down in the map to be public streets was passed. The moment the map was filed for record, the dedication became complete, and the acceptance took effect. That the complainant was not prejudiced in any rights then held by it to the land in question by this order of the proceedings is plain. The property in dispute is situated on what is claimed by the city of Oakland to be the continuation of Fallon street. Generally described, it may be said to be that portion of Fallon street opposite the north half of block 166. It is more particularly described in the bill as beginning at a point on the southeasterlv line of Twelfth street distant thereon 300 feet easterly from the southeast corner of Twelfth street and Oak street; running thence easterly, along said southerly line of Twelfth street, 85 feet; thence, at a right angle, southerly 100 feet; thence, at a right angle, westerly 85 feet; and thence, at a right angle, northerly 100 feet, to the point of beginning. It is contended by the city of Oakland that this land, excepting about 5 feet of the easterly part thereof fronting on Twelfth street. and extending of equal width southerly 100 feet, was dedicated to the public use as being a part of Fallon street, and was accepted as such by the resolution contained in the ordinance of August 27, 1853. It will be observed from a reading of the resolution that "so much of Fallon street" as is "above high-water mark" is declared to be a public street. An examination of the Kellersberger map shows that Fallon street is the highway nearest or next to the creek designated on the map by the name of "Bayou"; hence the wording of the resolution declaring it a public street. That the property in controversy was and is now above highwater mark is abundantly established by the testimony of the wit· nesses introduced on the part of the defendants, as well as by the fact that the bill itself shows that the land is 85 feet wide, and contains a house and other improvements. The width of the streets, as fixed by the ordinance, is 80 feet, with the exception of Broadway, which is fixed at 110 feet. The stipulation of facts also shows that Fallon street from Sixth to Eighth streets has been used for many years as a public street. It is conceded by the complainant, in the stipulation of facts, that Fallon street extends to Tenth street. The property in dispute lies between Eleventh and Twelfth streets. It further a.QPears
that tb.-e land ,in ,coIlttoversy had never. opened up or l1sed ·asa public street, bl1t that it was fenced in a:bOllt 1855, and has been' OCcupied as.a. residence since 1858. '. The I buildings. and :other improve: menta are claimed to be of the .present value of at least $2,500. ." The fact that, by the stipulation, it ·is admitted that a portion of Fallon street was opened upand,a:ctuallyused as a: public street, mili· tates, in my opinion, very strongly' against the claim of. the complain. ant that the land in controversy,which, as the map shows; lies in.the direct line of a·continun,tion of Fallon street, was never dedicated as a public street. The fact that only a portion of Fallon street was opened up and used as a public street does not devest or impair the right of the public. to open up and use the remaining portion of the land, dedicated and accepted as a: public street, whenever the exjgenc cies of the public travel and wants, require ih Barclay '\T. Howell, 6 Pet. 498, 505; City of Boston v.Lecraw, 17 How. 431;. Potomac Steam· boat Co. v. Upper PotomacSteambdatCo., 109U.S. 672,' 684, 3 Sup. Ct. 445" and 4 Sup. Ct. 15; Coffin v.City of Portland, 27 Fed. 412,. 420; Coffin v. City of Portland (Or.) 17 Pac. 580; Rowan's Ex'rs v. Town of Portland" supra; Grogan \". Town of Hayward, supra; Town of Derby v. Alling, 40 Conn. 410j·Reitzv. City of St.Louis (Mo. Sup.) 19 S.W.7B5.·,iAs was said by,Judge Deady inOoffln v.City of Port· land, supra right to the'uae, once admitted, is not affected by it." An examination of'the map iteelf shows tb,e nec $sityof aJ;!. unob· structed highway to Twelfth'street. Almost at the junction of Fallon and Twelfth streets, assuming that Fallon str.eet were fully opened up, is the Twelfth Street Bridge, which affords the means of crossing the "Bayou," so called,at .that time. This bridge was in existence in 1853, wh.enthe partitionof,,fbe land was made and the Kellel"$berger map ,:tiled for rec.oNl. up FaUon street ,between Elev, enth and ,Twelfth streets, thereby, passing oyer the land in dispute, would give the public traveling up (nortbward) on, Fallon street a direct access to this bridge; otherwise, it woUld be necessary to go up Oak street, one block further away; . As the land in; controversy is a part of Fallon street, as the same is delinea.tedon the :Kellersberger map, and I find it has been dedicl,lted and accepted as such, it follows that thecomplainllnt is a mere trespasser, and .has no :remedy or redress against the threatened acts,. of the public officials .of the city of Oakland in removing thereon,and clearing.the land lie street, unless :it may be that the pUblic is estopped, by some actor failure to act, from asserting its title, ,held in trust for public pur·. poses, to tlie land. As shown by the stipulation of facts, the complainant deraigns its title from the several tenants in common, who partitioned the land with reference to the Kellersberger map. When title was acquired to this particular piece of land does not clearly appear; but it does appear that no Was made by the public authoriti to open up and use the land as a public street until $ 1894, when a n()tice was sent by the public officials of the city of Oakland to dear theland, and remove. the builOillg'S and improvements thereon. As stated, the land was ,ded,icated in 1853, and the first at· tempt, so far as the evidence shows; to open ,up and,use'as a street the laud in cOI;ltroversy, was made in 1894,some 41 years .later. . In view of the fact that the land was fenced in about 1855, and that it has been
CENTRA.L TRUST CO. V. WOR.CESTER CYCLE MFG. CO.
occupit(d as ,a residence since 1858, buildings and improvemeuts of considerable value having been meanwhile erected, a strong equity would seem to arise in favor of the complainant, and give weight to the "iew that the city of Oakland had lost its right to the land by the adverse possession of the complainant. But, whatever may be the rille of decision in other states on this feature of the case, it is the well-settled law of the state of California, repeatedly so declared by its supreme court, that a title cannot be acquired to public property by adverse possession. Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Oal. 437; Oity of Visalia v. Jacob, 65 Cal. 434, 4 Pac. 433; San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405. These decisions, declaring, as they do, a settled rille of property in this state, are conclusive on this court. Grogan v. Town of Hayward, supra; Kowalski v. Railway 00., 84 Fed. 586. See, also, Elliott, Roads & S. p. 660. On the whole of the case, I conclude that, while the equity in favor of the complainant's right to the land in controversy may be very strong by the long nonuser by the city of Oakland of it for publio purposes, .still it is not sufficiently potent to justify this court in overriding the well-settled rules of property declared by the supreme court of this state. The complainant's position may be an unfortunate one, but the stability and security of the public rights are deserving of no less consideration. . The bill will therefore be dismissed, with costs in fa-v6r of the defendants, and the restraining order will be discharged; and it is so ordered.
OENTRAL 'I.'RUST CO. OF NEW YORK v. WOROESTER CYCLE MFG. 00. (Circuit Court, D. Connecticut. March 15, 1898.)
FORECLOSURES-!NVENTIONS-MORTGAGOR'S TRUSTEE IN INSOL-
A trustee In Insolvency of a mortgagor corporation, who Is appointed after institution of foreclosure proceedings and after the corporation has answered admitting the allegations of the bill, Is not entitled to intervene and tile lin answer except In the place of the corporation and as representing Its rights alone; nor can he apply for the removal of a reclliver appointed in the foreclosure proceedings except In the right of the defendant company·
.. SAME-AppLICATION FOR POSSESSION OF PROPERTY.
Such a trustee, If he claims a surrender of personal or mixed property held by a receiver appointed In the foreclosure proceedings, to whom It was volnntarlly surrendered by the mortgagor, can assert no greater right to pOSsession thereof than he would have had as against the mortgagee In possession If tbeproperty had been surrendered to him Instead of to the receiver. For the purposes of such an application, the receiver's possession Is the possession of the mortgagee.
.. SAME-RIGHTS OF CREDITORS.
Creditors of an insolvent mortgagor company which has surrendered personalptoperty to a receiver appointed in foreclosure proceedings cannot Inter-, vene and become parties In order to assert superior rights thereto, but mal' be heard at, the proper time on the question of superior right. .
O. Walter Arb:, for receiver. Butler, }\otman, Joline & Mynderse and Michael H. Cardozo, '-oJ! complainant. Parkins & Jackson, for Nash and others, intervening creditorB. Seymour C. Loomis, fot' Goodrich and others, intervening creditors. . A"L. Teele,.fol'GiUiamMfg.Co. and others" intervening