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District Court of Appeal, Fourth District, California.

W. R. COREY, Dick Haas Motors, Odeene Bateman and Ivarene Bateman, Husband and Wife, Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Atchison, Topeka and Santa Fe Railway Co., Defendants and Respondents.*

Civ. 5857.

Decided: July 22, 1958

Holliday & Folsom, David S. Folsom, San Diego, for appellants. J. F. DuPaul, City Atty., Jack G. Whitney, Deputy City Atty., San Diego, for respondents.

Plaintiffs bring this action to quiet title to a strip of real property which lies in an area delineated on a Map of Middletown made by J. E. Jackson, described as California Avenue. Defendants are the City of San Diego (hereinafter called City) and Atchison, Topeka & Santa Fe Railway Co. (hereinafter referred to as Santa Fe). From a judgment entered in favor of defendants, plaintiffs appeal.

Historically, Middletown was one of four large areas of land within what is now the City of San Diego and in 1874 was undeveloped land. On October 21, 1874, in the case of Baldwin et al. v. Couts et al., No. 869, (hereinafter referred to as Baldwin action) a partition decree for Middletown was signed in the 18th Judicial District of the State of California. The Baldwin action was brought to determine the conflicting claims and interests of numerous persons and entities in and to the real property of Middletown. The City of San Diego, the County of San Diego and the predecessors in interests of plaintiffs were among the parties named and appearing in the Baldwin action. Before October 21, 1874, the trial court appointed referees to partition Middletown. The report of the referees, dated October 12, 1874, was filed in the Baldwin case. The referees had a survey and map prepared subdividing Middletown into lots, blocks and streets. The map was referred to and by reference made a part of the decree in the Baldwin action. This map is commonly referred to as ‘J. E. Jackson Map’, ‘J. E. Jackson Partition Map’. ‘I. E. Jackson Partition Map of 1874’, ‘Map of Middletown made by J. E. Jackson.’ In the Baldwin decree each litigant was given certain property described by lot or lots and block with reference to the J. E. Jackson Map. By the decree the City of San Diego was given specifically described property. The Baldwin decree made no specific mention of the disposition of the title to the land upon which the streets were laid out. In part, the Baldwin decree ordered, adjudged and decreed, ‘that the said Report and Map of the said Referees and all things therein, be and they are hereby ratified and confirmed, and that the partition therein and herein made and set forth, be firm, binding, effectual and final as to all parties and that pieces and parcels of land as by said Report and this Decree set off to the Said parties, be theirs, their heirs and assigns forever in Severalty. And this Decree shall ratify and Confirm unto the Said parties the pieces or parcels of land therein and herein set off to them the same as if they had each executed and delivered to each other deeds of release and quitclaim in due form and in accordance with said Report and this Decree.’ The J. E. Jackson Partition Map was filed in the county clerk's Office October 19, 1874 and the Baldwin decree was filed and became part of the official records of the County of San Diego.

On December 21, 1880, one C. P. Noell, one of the litigants in the Baldwin action deeded a certain interest in a strip of land which was part of California Avenue on the J. E. Jackson Map to the California Southern Rail Road Company, which interest has since vested in Santa Fe Railway. By this deed, Noell granted a right of way to ‘that portion of California Avenue that lies between the front line of each of said lots and blocks and the middle line of said California Avenue as comes within the route of said railroad according to the Map of said railroad Company's railroad * * *’

Plaintiffs, by their complaint to quiet title allege: they and their redecessors in interest have been the owners of certain real property specifically described which lies within the area delineated as California Avenue (now California Street) on the J. E. Jackson Partition Map of 1874; there was no dedication of or acceptance of said street; the street has never been used for a street by anyone; and since the filing of the J. E. Jackson Partition Map in 1874 the street has been used as if free from any dedication. Also, plaintiffs allege defendant Santa Fe is the owner of a certain specifically described portion of the area delineated on the Jackson Map as California Street. Defendant City answered and denied specifically the allegations of plaintiffs' complaint except it admits the J. E. Jackson Partition Map reflects an area marked California Street. No affirmative defenses were alleged by defendant City. Defendant Santa Fe answered and admitted by failure to deny that it owns the area specifically described in plaintiffs' complaint and the plaintiffs' allegations regarding dedication, non-use and use inconsistent with dedication and affirmatively pleaded the deed from one Noell.

It appears that the plaintiffs' allegations of ownership in defendant Santa Fe, and the affirmative pleadings of defendant Santa Fe do not limit its interest to a right of way but specifically alleges ownership. However the Noell deed attached as an exhibit to defendant Santa Fe's answer which was later admitted to evidence, states: ‘* * * hereby grant unto said California Southern Rail Road Company, its successors and assigns, a right of way, * * * over, in and upon the following premises * * *’

The pretrial conference order provided in part: ‘Issues 1. Whether or not the area in question is now a public street or whether title thereto should be quieted in the plaintiffs and the Railway Company.’

On the trial date and during the opening statement of plaintiffs' counsel a title company ‘Litigation Guarantee,’ a copy of the Baldwin decree, a copy of the J. E. Jackson Partition Map of 1874 were received and marked as plaintiffs' exhibits. During the plaintiffs' opening statement all parties conceded that plaintiffs, respectively, owned the property contiguous to the parcels of land in litigation. At the close of this opening statement, defendant City moved for a directed verdict. During the discussion on this motion there was introduced and marked as defendant Santa Fe's exhibits, a copy of the Noell deed and a map reflecting the location of the railroad in 1880. The trial court stated that apparently defendant City's motion was intended as a motion for judgment comparable to a motion for summary judgment. Defendant City concurred in this statement. Then, plaintiffs made an offer to prove the street had not been used as a street, the property had subsequently been sold to third persons, and the property in question had been used as if free from dedication. An objection to the offer of proof was sustained. The trial judge in effect ordered judgment entered in favor of defendant City subject to the easement in defendant Santa Fe, and ordered defendant to prepare findings and a decree.

The Conclusions of Law provide the rights and interests of plaintiffs' predecessors in interest and defendant City in California Street were determined in the Baldwin action; California Avenue was dedicated as a public way, road or street by judicial decree in the Baldwin action; the Baldwin decree ‘is binding, effectual forever on all parties named * * * their successors in interest, pursuant to Section 766 of the Code of Civil Procedure; defendant Santa Fe owns the easement it claims; and section 748.5 of the Code of Civil Procedure is inapplicable where a portion of partitioned property is set apart for a street pursuant to Section 764, Code of Civil Procedure. Judgment was entered accordingly.

Plaintiffs appeal from the judgment and ‘from the whole thereof.’ Defendant Santa Fe has not filed briefs on this appeal. On this appeal plaintiffs contend (1) the doctrine of res judicata is not applicable, (2) Section 748.5, Code of Civil Procedure is applicable, (3) defendant City abandoned and rights to the property under the provisions of Section 2620 Political Code, (as it existed between 1874 and 1883) by the City's failure to work or use the property for a five years' period.

Defendant City contends (a) the street was set aside as a public way pursuant to Section 764, Code of Civil Procedure, in the Baldwin action; (b) the Baldwin decree was effectual forever on all parties to that action and their successors in interest and is res judicata; (c) Section 748.5, Code of Civil Procedure does not change the effect of Section 766, Code of Civil Procedure; (d) plaintiffs are barred by laches. It does not attempt to answer plaintiffs' contention (3).

As of the time the decree in the Baldwin action was signed and filed, Section 764, Code of Civil Procedure provided in part:

‘* * * Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties or sold, but shall remain an open and public way, road or street, unless the referees shall set the same apart as a private way, for the use of the parties interested, or some of them, their heirs and assigns, in which case it shall remain such private way. Whenever the referees have laid out on any tract of land roads sufficient, in the judgment of said referees, to accommodate the public and private wants, they shall report that fact to the court, and upon the confirmation of their report all other roads on said tract shall cease to be public highways. * * *’

In part, and in 1874, section 766 Code of Civil Procedure provided as follows:

‘The Court may confirm, change, modify, or set aside the report, and, if necessary, appoint new referees. Upon the report being confirmed, judgment must be rendered that such partition be effectual forever, which judgment is binding and conclusive:

‘1. On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or of any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof, as tenants for years or for life. * * *

‘3. On all other persons claiming from such parties or persons, or either of them.’

In view of the law apparently applicable to this type of case it is necessary for us to reverse the judgment and remand the case to the trial court for a trial on the issues. The evidence adduced at the trial will determine which, if any, of the law is applicable. In an attempt to be of assistance to the trial judge reference is made to certain case and codified law on the subject.

In Machado v. Title Guarantee & Trust Co., 15 Cal.2d 180, 99 P.2d 245, the action was to quiet title to a strip of land which had been set apart for a public way in a partition proceeding in 1876, but which was never accepted or used or improved for such purpose. It was formally vacated and abandoned by the Board of Supervisors. By the partition proceeding the land was described by metes and bounds. Conveyances subsequent to the partition proceedings, all used the description of the land as set forth in the partition proceedings. The defendants, owners of parcels of land contiguous to the strip of land in question, contended each owned to the center of the strip of land. Defendants relied upon the presumption set forth in section 831, Civil Code and the law contained in section 1112, Civil Code, subdivision 4 of section 2077, Code of Civil Procedure. Apparently all parties to the Machado action obtained title through mesne conveyances from the parties to the partition action. In referring to section 764, supra, the court at page 184 of 15 Cal.2d, at page 247 of 99 P.2d, said:

‘The declaration in the code section, as amended, that the ‘portion so set apart’ as a street shall not be ‘assigned to any of the parties' must here be held to apply to the easement for public use and not to the fee title and may well have reference to the settled proposition that no matter how clearly it may appear that an owner of a parcel of land holds fee title to the center of an adjoining street subject to the public easement, and that the boundary of his parcel is technically, therefore, the center of the street, he nevertheless has no right to the possession or occupancy of any portion thereof while used as a street. But where, as here, the strip set apart was never accepted, used or improved as a street and was thereafter formally abandoned as such, such right of possession and occupancy may not be denied to the contiguous owners. We therefore find nothing in the cited code section that in any way tends to overcome or rebut the presumption ‘highly favored in the law’ that owners of lands adjacent to a road or street (even though abandoned) own to the center thereof. Anderson v. Citizens' Sav. & Trust Co., 185 Cal. 386, 197 P. 113.'

Reference may be made to Loma Vista Inv., Inc., v. Roman Catholic Archbishop, 158 Cal.App.2d 58, 322 P.2d 35, which cites and quotes from the Machado case.

In determining intention the court in the Machado case, supra, 15 Cal.2d at page 186, 99 P.2d at page 248, said:

‘The findings and judgment of the court below and our conclusion herein give effect to the undoubted intention of the original owner, Augustin Machado, and of the court in the petition proceeding to the end that the entire tract should be partitioned among the former's heirs at law in the manner designated by him and thereafter effectively pass by mesne conveyances to their successors in interest. In the construction of boundaries, the intention of the parties is the controlling consideration. Miller v. Grunsky, 141 Cal. 441, 66 P. 858, 75 P. 48; 4 Cal.Jur. 373, sec. 2. Whenever possible, a court should place itself in the position of the parties and ascertain their intent, as in the case of any contract. As stated in Miller & Lux, Inc., v. Secara, 193 Cal. 755, 227 P. 171, 173, ‘Intention, whether express or shown by surrounding circumstances, is all controlling * * *.’'

The intent of the parties, referees and court to the Baldwin action will be determined by the trial court from the evidence before it at the trial of the issues. Anderson v. Citizens' Sav. & Trust Co., 185 Cal. 386, 197 P. 113 may be helpful to the trial court.

Plaintiffs made an offer of proof regarding use and non-use of California Street in an attempt to bring into operation the provisions of section 2620, Political Code and section 748.5, Code of Civil Procedure. We believe the plaintiffs should have the opportunity to introduce evidence on the issues. Section 2620, supra, was not referred to in the Machado case. Section 2620, until its repeal in 1883, read: ‘A road not worked or used for the period of five years ceases to be a highway for any purpose whatever.’

In Myers v. Daubenbiss, 84 Cal. 1, 6, 23 P. 1027, 1029, the Supreme Court cited section 2620 and said: ‘But as the road so established was not opened, worked, or used for nearly 14 years afterwards, and under Section 2620, supra, had ceased to be a highway, ‘for any purpose whatever,’ it is clear that the judgment, of itself, did not justify the defendants in entering upon the plaintiff's land and doing the acts complained of.' See, also, Ferroggiaro v. Board of Public Works, 52 Cal.App. 393, 395, 198 P. 810.

Defendant City's contentions (b) and (d) were not raised as an issue by its pleadings or by it in the pretrial order. In this regard, see Section 1910, Code of Civil Procedure; Baird v. Hodson, Cal.App., 327 P.2d 215; Reed v. Norman, 41 Cal.2d 17, 21, 256 P.2d 930; 29 Cal.Jur.2d, Judgments, Sec. 279.

Whether the provisions of section 748.5 is to be applied upon the trial of the issues is not for this court to determine on this appeal.

From the record, the defendant City ‘recognized’ the easement of defendant Santa Fe which ‘recognition’ is inconsistent with the denial in its answer. Upon analysis and with the evidence to be adduced this recognition may place the trial court at a disadvantage. The Noell deed relied upon by defendant Santa Fe is dated in 1880, which is six years after te Baldwin decree. To recognize the Noell deed as granting a right of way to predecessors in interest of defendant Santa Fe may be conceding non-use of California Street for five years after 1874 and effectuating the provisions of section 2620, Political Code, and thus conceding Noell's title and right to grant such a right of way across California Street. Also, if this ‘recognition’ by defendant City is accepted as a stipulation the findings of the trial court might be inconsistent one with the other. If defendant City claims ownership of California Street since 1874, then Noell had no ownership upon which to grant a right of way to defendant Santa Fe. To that extent, possibly the Noell deed to defendant Santa Fe is a so-called ‘wild deed’ and would merely becloud the title of the defendant City. These matters may be adjudged by the trial court upon the trial.

To prove their ownership through their predecessors' interest plaintiffs introduced and there was received in evidence a ‘Litigation Guarantee’. Upon the trial plaintiffs may desire to introduce testimony as to the accuracy of the legal description in Paragraph I of the ‘Litigation Guarantee’, Plaintiffs' Exhibit 1.

Judgment is reversed and the case is remanded to the trial court for a trial upon the issues.

McCABE, Justice pro tem.

MUSSELL, Acting P.J., and GRIFFIN, J., concur.

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