THE CITY AND COUNTY OF SAN FRANCISCO v. THOMAS SULLIVAN et al., 50 Cal. 603

By the Court : 1. All the questions made by the appellant here were considered and determined by us in the case of Hoadley v. San Francisco, ante, p. 265, except the question now made as to the right of the city to maintain ejectment to recover land reserved by her for the purposes of a public street, under the provisions of the Van Hess Ordinance, and the legislative acts confirmatory thereof. 2. The question made as to the right of the city to maintain the action was made in the court below upon demurrer to the amended complaint.

The amended complaint upon this point alleges as follows: “That a street commonly known as West Mission street, including the premises hereinafter mentioned, for sixteen years and upwards last past, has been, and is, a public street of the city and county of San Francisco, for all of the citizens of the State of California to pass and repass upon as an open public street and highway, at their pleasure.

That subject to the right of said citizens to pass and repass as aforesaid, over and upon said lands, the city and county of San Francisco is the owner, and entitled to the possession thereof, for sixteen years and upwards last past.” The demurrer was correctly overruled. We are of opinion that the force of the allegation that the plaintiff here is the owner, and entitled to the possession of the premises sued for, is not impaired, or affected by the further allegation that the public have an easement therein as a jrablic street, with a right in them to pass and repass over it at pleasure as such a public street.

The existence and enjoyment of the easement is entirely compatible with the seizin of the plaintiff as being the owner of the fee. The plaintiff is a municipal corporation, and charged as such with the preservation and maintenance of the easement referred to, and a right of entry in the city is not only consistent with the existence of the easement, but necessary for its preservation.

Judge Dillon, in his work on Municipal Corporations, has collected many of the authorities on this question, and their general result is given by him as follows: "A municipal corporation, entitled to the possession and control of streets and public places, may, in its corporate name, recover the same in ejectment. Where it possesses the fee, although in trust for public uses, there are no technical obstacles in the way of maintaining such an action against the adjoining proprietor, or whoever may wrongfully intrude upon, occupy, or detain the property.

But where the adjoining proprietor retains the fee, the courts have overcome the technical difficulty by regarding the right to the possession, use, and control of the property by the municipality, as a legal and not a mere equitable right.” (2 Dillon on Municipal Corporations, 629.) Judgment and order denying a new trial affirmed.