Southern Pacific Co. v. City of Pomona

Plaintiffs bring this action to enjoin defendants from interfering with plaintiffs in the construction of a track partly laid along the south side of First Street in the city of Pomona, part of • a tract of land claimed to be owned by the Southern Pacific Railroad Company (hereafter referred to as S. P. R. R. Co.), and leased to plaintiff, Southern Pacific Company (referred to hereafter as S. P. Co.), praying also that their title be quieted, and for damages. The tract of land of which said First Street is a part, is a parallelogram containing twenty acres, including the right of way, and is four hundred feet wide north and south and twenty-two hundred feet long east and west, through which the main track of plaintiffs’ road runs, its center being one hundred and fifty feet from the south boundary and two hundred and fifty feet from the north boundary of said tract. The city of Pomona is situated on all sides of this tract. First Street is situated along the south side and Bertie Street along the north side of said tract. Garey Avenue, Elizabeth (or Main), Gordon, and Ellen streets cross the tract north and south, all of which streets are claimed by defendants to be public highways dedicated as such by plaintiffs and accepted by defendants and the public. On April 13, 1901, the S. P. Co. commenced to lay a track along the south side of First Street, the south rail of which would be five feet ten inches from the south line of the tract and street, along which are blocks of land improved by buildings erected from time to time facing this tract. The company proposed to erect warehouses along the north side of the track it had begun to build, thus entirely obstructing First Street. Defendants interfered by such force only as was necessary and compelled plaintiffs to desist from laying this track. Hence the action.

In their answer defendants set up title as highways to all said streets and prayed that the title be quieted to them as public highways. The court found the facts in favor of defendants and gave judgment accordingly. Plaintiffs appeal from the judgment and from the order denying motion for a new trial.

1. In reply to one of appellants’ points, it may be stated at the outset that unless forbidden by their charters, railroad corporations, as well as other corporations, may dedicate the right to occupy and use as a public highway land conveyed

2. As to the point that plaintiffs should recover damages in any event, it need only be said that plaintiffs were proceeding to build a track and cause warehouses to be erected in such a way as to entirely obliterate First Street. If the street was a dedicated highway, plaintiffs were not damaged by being prevented from taking possession of it unlawfully and for an unlawful use and to the entire exclusion of the public.

3. It appears that the S. P. R. R. Co. acquired the right of way through the site of the town from one Louis Phillips in 1873, who, being owner in fee, on March 9, 1875, also conveyed by deed to the company the tract in question; the company's main track was completed in 1874, and there is evidence that the town of Pomona existed as early as that year, with streets laid out as they appear on a map of the town which was recorded August 20, 1875, and appears in the record. This map .locates the streets in accordance with defendants’ contention. The county board of supervisors attempted to establish a highway in December, 1875, and did lay out and record as a public highway a road which included as a part of it the strip of land in question known as First Street.

i The company was not notified of this action and was not compensated for its land thus included. The road, however, was improved and worked by the county and treated as a highway by the public from that time forward, as were all the other streets except Gordon Street, which latter street, for the moment, may be left out of view. There is much evidence showing that these streets, except Gordon Street, were graded, worked, and cared for at the expense of the county and generally used by the public without objection or interference by the company. This began in 1875 and continued down to the time when Pomona became a city of the fifth class in 1888, and the streets were thereafter worked and eared for by the city. We will not undertake to set forth this evidence. There was, however, an attempt made by the company to occupy a portion of First Street in 1876, as to which the evi

The court found that the S. P. R. R. Co., prior to February ■28, 1883, dedicated the strips of land constituting the streets above named, except. Gordon Street. This dedication is claimed by defendants to be valid and binding on several grounds, but one of: which need be noticed, namely, that it became so by virtue of the act of December 25, 1877, entitled “An act relative to highways in Los Angeles County.”

As to these statutes appellants make several contentions. First, that they are invalid because they embrace more than one subject expressed in their title; citing Section 24 of article IV of the old constitution. It is claimed that many provisions are general in their terms, including provisions with which plaintiffs are concerned, and in no way limited to Los Angeles County. What these general provisions are is not pointed out, and we fail to discover any such. Both acts relate only to roads, alleys, streets, and bridges in the county, and not elsewhere. Second, -that the act of 1878 repealed the act of 1877. We have shown that if this be conceded it is immaterial. Third, that the statute referred to should be construed merely as fixing the period, not as defining the character o£ the use necessary to establish a dedication and do not dispense with the requirement that use alone, to create a right in tho public, must be adverse; and this in analogy to the construction given section 1007 of the Civil Code, in Thomas v. England, 71 Cal. 456 . In the case cited the right was expressly claimed as secured by adverse user, and the question of fact related to such user under the statute. The cases presently to be cited make no such distinction as -is urged by appellants, and the statute does not, in our opinion, admit of the construction contended for. Fourth, that the streets in question were used merely as convenient approaches to the railroad tracks and grounds, and by sufferance of the company. The evidence does not bear out this assumption. Fifth, that the extent of the use would limit the amount of the land acquired, and that the use alone marks the width of the streets claimed to have

Similar statutes'to the ones now before us have had consideration by this court, and it has been held that the use of land as a road by the public as a highway for the statutory period constitutes a dedication .of the land as a highway, and the right of the public to continue to use the land as a road is thus fixed and established. The cases bearing upon the subject are: Bolger v. Foss, 65 Cal. 250 ; Hope v. Barrett, 78 Cal. 9 ; Gloster v. Wade, 78 Cal. 407 ; McRose v. Bottyer, 81 Cal. 122 ; Freshour v. Hihn, 99 Cal. 443 ; People v. County of Marin, 103 Cal. 223 . (See, also, what is said in Schwerdtle v. County of Placer, 108 Cal. 589 , at p. 593.) There is nothing in Huffman v. Hall, 102 Cal. 26 , contrary to the doctrine laid down in Bolger v. Foss, 65 Cal. 250 , and other eases cited. We think the finding and conclusion of law as to the streets above referred to are supported by the evidence.

4. The findings as to Gordon Street rest upon dedication by plaintiffs in 1896 as found by the court. The S. P. Co. leased the S. P. R. R. Co-.’s property and went into possession on February 5,1885, at which time the streets, other than Gordon Street, were being used by the public under their dedication prior to 1883. The S. P. Co. must have known the relation these streets bore to the property leased and the use being made of them, and must be held to have taken the lease subject to this dedication. The facts as to Gordon Street are briefly as follows: In 1884 there was a large brick warehouse on the street in question, resting partly on the company’s right of way and partly outside of it, on the north side of the main tract between Ellen Street and Gordon Street. The building extended across this latter street, completely obstructing passage over it. The question of opening this street “had been

There is much record evidence showing that both plaintiffs dealt with the corporate • authorities of Pomona relative to franchises and privileges involving all these streets after the city was incorporated, both before and after the opening of Gordon Street. Some of the- significant facts are recited in the findings, and still others might be instanced if it were necessary. We think the evidence sufficient to sustain the findings as to Gordon Street, if the plaintiffs are bound by the acts of their agents.

Perhaps the contention most seriously urged by appellants is, that there is no evidence whatever of any authority from the principal to dedicate Gordon Street, and that the agents, so far as it appears, could not dedicate the land of their principal even if they tried to do so. It is true that no express authority was shown as emanating directly from the directors of either corporation and given to any agents, and no official action by such directors was shown. The situation is in many respects unusual, and must be dealt with in the light of all the facts and circumstances.

Appellants take the position that the S. P. Co. could not dedicate the land because that company is but the lessee of the owner, and that the S. P. R. R. Co. could not do so because the land was subject to a lease, from which it must follow that only by the joint act of the two plaintiffs could there be any dedication. To further render impregnable their position appellants claim that even under the doctrine of constructive dedication the eases go no further than to hold that a corporation can be estopped by its agents only when they act within the scope of their ostensible authority, and no officer of a corporation, as such, has authority to make or permit a dedication of the corporation’s property ■ for a street. These contentions apparently lead to the proposition that there can be no dedication of the land of a railroad corporation for a public highway except by grant formally made by the directors of such corporation. This position is not tenable. (People v. Eel Ewer etc. R. R. Co., 98 Gal. 665.) We have seen that the S. P. R. R. Co. dedicated the streets, ■ other than Gordon Street, prior to 1883, and that both plaintiffs recognized that

The open, notorious, and public character of most of these facts and circumstances and their long-continued existence

Appellants cite Pacific Bridge Co. v. Kirkham, 54 Cal. 558 , and California Nav. and Imp. Co. v. Union Tram. Co., 126 Cal. 433 , in support of their contention. The question decided in the Pacific Bridge Company case related particularly to the insufficiency of the findings. It was, however, said that the president and members of the Water Front Company, individually, but not in their corporate capacity, could not dedicate land of the corporation by giving permission to use it. Where dedication is claimed to result from such consent alone, a question arises different from that here in view of all the facts. In the other case cited one question was as to the authority of a person who had charge of reclaiming and farming a portion of what is known as Roberts’s Island in San Joaquin River. For the use of the owners (a corporation), a wharf had been constructed, which was also part of the reclamation levee, from which the products of the soil had been shipped to market, the steamboats and other craft being permitted to use it for that purpose. Plaintiff leased the wharf from the owners, and to prevent defendant from committing a trespass upon the property, brought injunction. The question, among others, arose as to whether this wharf had been dedicated to the use of the public by the owners, which defendant sought to establish by the acts of the person above referred to, who testified that he was engaged in carrying out the reclamation work and the management of the land. No officer or director of the company had ever visited

The full extent of the authority of the S. P. Co., as lessee and agent of the S. P. R. R. Co., we do not know, for the lease is not in evidence. The court found that it “leased the railroad, its sidings, switches, subways, tracks, turntables, and all the appliances and appurtenances thereof.” The land in question was deeded for railroad purposes, and was clearly within the control and management of the S. P. Co., and for the pur-, poses of the lease could be dealt with by this company as the necessity or interest of the business required. “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, see. 2300.) Whoever seeks to charge the principal with the act of an ostensible agent must himself believe that the agent had authority as such from the alleged principal. (Hams v. San Diego Flume Co., 87 Cal. 526 .) The evidence is that the city authorities, as well as the general public, believed that the S. P. Co. had full .authority to dedicate Gordon Street, and there is evidence, from which a reasonable inference may be drawn, that the S." P. R. R. Co. engendered this belief intentionally as well as by want of ordinary care. Whether Mr. Muir was acting in this particular instance as division superintendent'of the S. P.-Co., or was acting for the S. P. R. R; Co., or both, does not appear, but that he was with good -reason, believed-by deféndants to be acting under competent authority and held himself out as so acting, does- appear. No other conclusion is-consistent with the conduct of the parties .interested." The dedicatory acts to which we have alluded were such as would apparently be within the power of the S. P. Co. to perform in the conduct of .the business contemplated by the lease; The S. P. R. R. Co. permitted the S. P. Co. to appear to possess authority,-as it had itself, to dedicate Gordon Street and is bound "by its agent’s acts as within its ostensible--authority; (Reinhard on Agency, see. 192.) •

Having in view all the facts in the case, we" do" not think the plaintiff should be heard to' deny the dedication of the streets

Cooper, C., and Harrison, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Van Dyke, J., Angellotti, J., Shaw, J.