Myrick, J.:
This is an action to obtain a decree adjudging certain premises in the City of Oakland to be a public street; that the defendants be directed to remove certain buildings and obstructions therefrom, and that the defendants be enjoined and prohibited from erecting any buildings or obstructions thereon.
The Encinal of San Antonio, which embraces a portion of the present City of Oakland, and all of the premises in controversy, was, on the fifteenth day of August, 1853, owned by Jos. K. Irving and others as tenants in common. Previous to that date said owners had caused said lands to be surveyed for the purpose of partition, adopting a survey of the town of Oakland previously made by one Kellersberger under the employment of persons not .holding the title, and dividing the remainder not included in said town survey into four tracts designated by the letters A, B, C and D. Tract D, as thus surveyed, adjoined the town of Oakland on the north; it contained two hundred and twenty-five acres, and included the premises in controversy. On said fifteenth day of August, 1853, by deed of partition, tract D was allotted to said Irving, and also block 191 and other blocks, as per the survey of the town of Oakland, which block 191 bounds the premises in controversy on the south. The plots of these surveys were recorded. Irving received tract D in trust for himself and others who were joint owners with him therein. A diagram of the tract was made for the purpose of distribution among themselves, and on the fourteenth of May, 1854, said Irving, by deeds, conveyed to his co-owners their respective shares in severalty. To one of the deeds was attached a copy of the diagram, and the other deeds referred to it, the conveyances being of lots according to the diagram, Lot No. 9 and a part of Lot No. 1 were conveyed to James M. Goggin, from whom the defendants deraign title to the premises in controversy.
The description in this deed contains the following: “ Commencing at a point on the easterly line of Broadway, where Broadway crosses the north line of the town of Oakland, and running thence along the north line of the town,” etc., [500]*500thence north, west and south, to the place o£ beginning, embracing a tract bounded on the south by the town of Oakland. In August, 1853, said Irving had for value conveyed to Jones and others block 191, of which block at least six lots fronted on tract D., and had no other approach than across or upon the tract. On the fifteenth of May, 1854, said Irving, for value, conveyed to Lander and Tiffany parcels of land in said tract D, described as follows: “ Commencing at a point on the northern line of Fourteenth street of said city, 11.85 chains southeastwardly from the corner of Broadway and Fourteenth street; thence southeastwardly along said line of Fourteenth street 7.65 chains,” etc.; also “ commencing at a point on the northern line of said Fourteenth street 20 chains northwestwardly from the corner of Broadway and Fourteenth streets, thence along the northern line of Fourteenth street ten chains,” etc. This deed was recorded at least thirty days prior to the recording of the deed to Goggin. Various witnesses acquainted with the premises at different periods show from 1852 to 1859, there was an open traveled way, known as Fourteenth street, extending along north of the north line of the original plat of the town of Oakland, and over the premises in controversy, used by the public as a thoroughfare; that in the years 1856, 1857,1858, there were fences on the north and south sides of Fourteenth street; and that the street was closed up in 1858 or 1859, by one Van Auken, a party in defendants’ chain of title. The title of defendants is as follows: Deed, as above stated, Jos. K. Irving to Goggin; Goggin to Marshall and H. P. Irving; Marshall and Irving to Van Au-ken, as follows: “ Commencing at a point where the easterly line of Broadway crosses the southerly line of Fourteenth street, thence running along the southerly line of Fourteenth street, south 64 degrees east 300 feet, thence at right angles with Fourteenth street, north 26 degrees east .180 feet, thence north 64 degrees west and parallel with Fourteenth Street, 300 feet more or less to the easterly line of the Peralta Road; thence southerly along Peralta Road to the place of beginning ; ” deed from Van Auken to Carlyle containing the same description as the last; and from Carlyle to defendants by mesne conveyances.
The Court below found that the premises in controversy [501]*501had not been at any time a public street, had not been dedicated as such by defendants or any of their grantors; that defendants were the owners of the premises; and accordingly rendered judgment for them.
On the trial the relator offered to prove " that at the time of the making of the deed from Marshall and Irving to Van Auken, it was talked that there was a Fourteenth street there; that Irving and Marshall proposed to sell the one hundred feet on the north side of Fourteenth street; that Van Auken desired, to have the eighty feet of Fourteenth street, included in his deed; that Marshall and Irving refused, objecting that Fourteenth street was a public street; that Van Auken then broke off negotiations, but subsequently came back, and without paying anything for Fourteenth street, and upon his representation that he would not close it up, but always hold it as a street, and that he only wanted to keep other people from squatting upon it—with that distinct understanding the deed was made to the south side of Fourteenth street; that the boundary by the street was put into the description for the purpose of showing a dedication of the street; and that Van Auken took the deed with full notice that the street was held to be a dedicated street by his grantors.” The evidence was objected to, the objection was sustained, and the relator excepted.
A witness testified: “ I had a conversation with Van Auken subsequent to the making of the deed, when he commenced to fence the street; I told him it was well understood he was not to fence up that street; that he only took that, as he said at the time prior to the execution of the deed, for the purpose of protecting himself in case anybody should attempt to jump it; he admitted it, but claimed he had a right to protect himself by doing it. I also heard Marshall and Irving, while owners of property there, before the sale to Van Auken, declare that Fourteenth street was a street.” Another witness testified: "About four years ago, while P. S. Wilcox (one of the persons in defendants’ chain of title) was the owner of the property, I asked him to open the street, and told him we could sell the property in block 191, provided I gave bonds that the street would be opened. He told me to give a bond, it did not make any difference what kind of a [502]*502bond. He said ‘the street shall be opened, I want it open, and am going to have it opened, and if I can bulldoze the city out of something, I am going to do it; but it shall not cost you a cent.’ He did not open the street, but soon after sold the property to the defendants.”
From the facts admitted, or in evidence, it appears that the property in question was used as a public street from 1852 until 1859, when it was closed up by Van Aulcen; that while tract D. and the other tracts were owned by Jos. K.
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Myrick, J.:
This is an action to obtain a decree adjudging certain premises in the City of Oakland to be a public street; that the defendants be directed to remove certain buildings and obstructions therefrom, and that the defendants be enjoined and prohibited from erecting any buildings or obstructions thereon.
The Encinal of San Antonio, which embraces a portion of the present City of Oakland, and all of the premises in controversy, was, on the fifteenth day of August, 1853, owned by Jos. K. Irving and others as tenants in common. Previous to that date said owners had caused said lands to be surveyed for the purpose of partition, adopting a survey of the town of Oakland previously made by one Kellersberger under the employment of persons not .holding the title, and dividing the remainder not included in said town survey into four tracts designated by the letters A, B, C and D. Tract D, as thus surveyed, adjoined the town of Oakland on the north; it contained two hundred and twenty-five acres, and included the premises in controversy. On said fifteenth day of August, 1853, by deed of partition, tract D was allotted to said Irving, and also block 191 and other blocks, as per the survey of the town of Oakland, which block 191 bounds the premises in controversy on the south. The plots of these surveys were recorded. Irving received tract D in trust for himself and others who were joint owners with him therein. A diagram of the tract was made for the purpose of distribution among themselves, and on the fourteenth of May, 1854, said Irving, by deeds, conveyed to his co-owners their respective shares in severalty. To one of the deeds was attached a copy of the diagram, and the other deeds referred to it, the conveyances being of lots according to the diagram, Lot No. 9 and a part of Lot No. 1 were conveyed to James M. Goggin, from whom the defendants deraign title to the premises in controversy.
The description in this deed contains the following: “ Commencing at a point on the easterly line of Broadway, where Broadway crosses the north line of the town of Oakland, and running thence along the north line of the town,” etc., [500]*500thence north, west and south, to the place o£ beginning, embracing a tract bounded on the south by the town of Oakland. In August, 1853, said Irving had for value conveyed to Jones and others block 191, of which block at least six lots fronted on tract D., and had no other approach than across or upon the tract. On the fifteenth of May, 1854, said Irving, for value, conveyed to Lander and Tiffany parcels of land in said tract D, described as follows: “ Commencing at a point on the northern line of Fourteenth street of said city, 11.85 chains southeastwardly from the corner of Broadway and Fourteenth street; thence southeastwardly along said line of Fourteenth street 7.65 chains,” etc.; also “ commencing at a point on the northern line of said Fourteenth street 20 chains northwestwardly from the corner of Broadway and Fourteenth streets, thence along the northern line of Fourteenth street ten chains,” etc. This deed was recorded at least thirty days prior to the recording of the deed to Goggin. Various witnesses acquainted with the premises at different periods show from 1852 to 1859, there was an open traveled way, known as Fourteenth street, extending along north of the north line of the original plat of the town of Oakland, and over the premises in controversy, used by the public as a thoroughfare; that in the years 1856, 1857,1858, there were fences on the north and south sides of Fourteenth street; and that the street was closed up in 1858 or 1859, by one Van Auken, a party in defendants’ chain of title. The title of defendants is as follows: Deed, as above stated, Jos. K. Irving to Goggin; Goggin to Marshall and H. P. Irving; Marshall and Irving to Van Au-ken, as follows: “ Commencing at a point where the easterly line of Broadway crosses the southerly line of Fourteenth street, thence running along the southerly line of Fourteenth street, south 64 degrees east 300 feet, thence at right angles with Fourteenth street, north 26 degrees east .180 feet, thence north 64 degrees west and parallel with Fourteenth Street, 300 feet more or less to the easterly line of the Peralta Road; thence southerly along Peralta Road to the place of beginning ; ” deed from Van Auken to Carlyle containing the same description as the last; and from Carlyle to defendants by mesne conveyances.
The Court below found that the premises in controversy [501]*501had not been at any time a public street, had not been dedicated as such by defendants or any of their grantors; that defendants were the owners of the premises; and accordingly rendered judgment for them.
On the trial the relator offered to prove " that at the time of the making of the deed from Marshall and Irving to Van Auken, it was talked that there was a Fourteenth street there; that Irving and Marshall proposed to sell the one hundred feet on the north side of Fourteenth street; that Van Auken desired, to have the eighty feet of Fourteenth street, included in his deed; that Marshall and Irving refused, objecting that Fourteenth street was a public street; that Van Auken then broke off negotiations, but subsequently came back, and without paying anything for Fourteenth street, and upon his representation that he would not close it up, but always hold it as a street, and that he only wanted to keep other people from squatting upon it—with that distinct understanding the deed was made to the south side of Fourteenth street; that the boundary by the street was put into the description for the purpose of showing a dedication of the street; and that Van Auken took the deed with full notice that the street was held to be a dedicated street by his grantors.” The evidence was objected to, the objection was sustained, and the relator excepted.
A witness testified: “ I had a conversation with Van Auken subsequent to the making of the deed, when he commenced to fence the street; I told him it was well understood he was not to fence up that street; that he only took that, as he said at the time prior to the execution of the deed, for the purpose of protecting himself in case anybody should attempt to jump it; he admitted it, but claimed he had a right to protect himself by doing it. I also heard Marshall and Irving, while owners of property there, before the sale to Van Auken, declare that Fourteenth street was a street.” Another witness testified: "About four years ago, while P. S. Wilcox (one of the persons in defendants’ chain of title) was the owner of the property, I asked him to open the street, and told him we could sell the property in block 191, provided I gave bonds that the street would be opened. He told me to give a bond, it did not make any difference what kind of a [502]*502bond. He said ‘the street shall be opened, I want it open, and am going to have it opened, and if I can bulldoze the city out of something, I am going to do it; but it shall not cost you a cent.’ He did not open the street, but soon after sold the property to the defendants.”
From the facts admitted, or in evidence, it appears that the property in question was used as a public street from 1852 until 1859, when it was closed up by Van Aulcen; that while tract D. and the other tracts were owned by Jos. K. Irving, Goggin, and others, as tenants in common, said Irving conveyed block 191, containing at least six lots fronting on what was used as a street; that on the day following the deed in partition of Irving to Goggin, Irving, for value, conveyed two parcels of tract D., bounding the same by Fourteenth street, the deed thereof being recorded prior to the deed to Goggin of the premises in controversy; that while the defendants’ grantors, Marshall and Irving, were the owners of the fee, they declared that Fourteenth street was a street, it being then in use as such; that their grantee, Van Auken, while he was the owner of the fee, declared that when he purchased he knew that it was a street, and took a deed for'the purpose of protecting himself from attempts to “jump” it; that Wilcox, defendants’ immediate grantor, retained the buildings and enclosures upon it only for the purpose of extorting money from the city. We have, also, the description in the deed from Irving and Marshall to Van Auken, and the subsequent deeds in defendants’ chain of title, bounding the premises therein described by “Fourteenth street.” Then there is the offer to prove that pending the negotiations between Marshall and Irving and Van Auken, the bargain was for a tract of land north of Fourteenth street, leaving the street open, and the subsequent including of the street in the deed solely for the purpose of enabling Van Auken to protect it as such, and that Van Auken had full notice that the street was held to have been dedicated by his grantors as a street. We think the record displays two errors:
1. We think the evidence shows a dedication by defendants’ grantors, and that the Court erred in finding that it did not, and in finding that the premises do not constitute a public street. We think that the elements entering into and [503]*503constituting a dedication {San Francisco v. Ganaran, 42 Cal. 554), viz., an intention by the owner, clearly indicated by his words or acts, to dedicate the land to public use, and an acceptance by the public of the dedication, established by the use by the public of the land for the purpose to which it had been dedicated, are clearly manifested.
The deed of May 15, 1854, from Irving to Lander and Tiffany, of the two parcels of land, one east and the other west from the premises in controversy, although it bounded the tracts therein conveyed by Fourteenth street, might not of itself have affected the premises in controversy, or have tended to show that Irving intended a dedication of land for a street extending from one of said tracts to the other; neither, perhaps, would the fact that lots in block 191 had no other outlet have necessarily proved a dedication of the land adjoining as a street; but those facts, taken in connection with the continuous user by the public, the description in the deed of Marshall and Irving to Van Auken, the declarations of Marshall, Irving, Van Auken, and Wilcox respectively, while owners, were evidence of a dedication. The subsequent acts and declarations had reference to a street as referred to in the prior conveyance, and as in actual use, and recognized it as an existing fact. The acts of all the owners up to the time of fencing, in 1859, are harmonious with the theory of a dedication, and with no other.
2. The relator was entitled to the evidence offered by him relating to the transaction between Marshall and Irving and Van Auken. (Sec. 1,849, O. O. P.)
Judgment and order reversed and cause remanded for a new trial.
Morrison, C. J., and Sharpstein, J., concurred.