City of San Francisco v. Ellis

54 Cal. 72

Opinion

By the Court:

It is not necessary to decide whether the lands described in the complaint were withdrawn from disposition (by the Board of Tide Land Commissioners) by the first section of the Act of April 1st, 1872, (Stats. 1871-2, p. 926) or whether the plaintiff acquired an easement to drain into the “ open canal ” provided for in this act. Nor is it necessary to determine what rights, if any, the defendants have acquired in the lands. The only right of plaintiff alleged is set forth in the complaint as follows:

“ Plaintiff further states, according to information and belief, that ever since the 27th day of March, A. D. 1874, the plaintiff has been and is seized in fee simple and the owner of all those certain lots, pieces, or parcels of land situate, lying, and being within the City and County of San Francisco, State of California, and respectively bounded and described as follows; ” * *

This averment was not sustained by the evidence. We agree with the Court below that the Act of March 27th, 1874, (Stats. 1873-4, p. 711) did not operate a grant of the premises to plaintiff.

Judgment and order affirmed. Remittitur forthwith.