USA > California > Santa Barbara County > History of Santa Barbara county, California, with illustrations and biographical sketches of its prominent men and pioneers > Part 46
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"SEC. 6. The Street Commissioners shall be entitled to claim and receive from the interested parties, for each certificate allowed according with the above
section, the sum of $1.00, to be entered in the Town Treasury.
"SEC. 7. In the case of any person or persons own- ing land situated on any of the streets as laid on the official map of the town, wishing to erect any build- iug, fence, etc., on such street, he shall, before the action of the same, give notice to the Street Commis- sioner, whose duty it shall be not to grant such per- mission without the approbation of the Common Council.
"SEC. 8. The Marshal shall be ex officio Street Com- missioner.
"SEC. 9. All the ordinances or parts of ordinances in conflict with the present shall be repealed.
"SEC. 10. This ordinance shall take effect from the time of its approval.
" Approved May 18, A. D. 1865.
" JOSE M. LOUREYRO, President.
"O. GUTIERREZ, Secretary.
"A LEGALIZED ORDINANCE.
" The above ordinance, together with the other ordinances and proceedings of the Board of Trustees. was duly legalized by act of the Legislature, as follows :-
" An Act to Legalize the Acts and Proceedings of the Trustees of the Town of Santa Barbara. Ap- proved March 31, 1866.
"SECTION 1. The Acts and Proceedings of the Trustees of the Town of Santa Barbara, created by an Act entitled 'An Act to Incorporate the Town of Santa Barbara,' approved February tenth, eighteen hundred and sixty-four, are hereby approved, rati- fied, and confirmed.
"SEC. 2. This Act shall take effect immediately.
" The foregoing ordinance has never been repealed, or in any way modified, and is in full force and effect. Those who are fencing or locating lots may feel an interest in examining it.
" The following ordinances have been passed in relation to the survey of the town :-
"ORDINANCE NO. 28.
" An Ordinance Concerning the Town Survey.
" The President and Board of Trestees of the Town of Santa Barbara do ordain as follows :-
Resolved, That the iron stakes set by the Town Surveyor in the year 1861 at the southwest intersec- tion of State and Carrillo Streets, on easterly corner of Block No. 142, also the iron stake set on the east- erly corner of Block No. 158, be from now henceforth the initial points of the town surveys, and of all locations of lots and streets. Satisfactory evidence shows that the aforesaid corners of blocks have been the initial points of the Salisbury Haley surveys, made in the years 1851, 1852, and 1853, according with the maps accepted by the then city authorities; therefore, the President and Board of Trustees of the Town of Santa Barbara do ordain that all surveys made thereafter that in any manner deviate from the said initial points, and vary with the courses and distances as set forth in said S. Haley's maps, are hereby declared unll and void. And that all ordi- mances or parts of ordinances that are in conflict with this ordinance are hereby repealed.
" Passed and approved in Council-room, the 3d day of November, 1870.
" R. K. SEXTON, President pro tem. "J. E. Goux, Secretary.
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"ORDINANCE NO. 30.
"The President and Board of Trustees of the Town of Santa Barbara, State of California, do ordain as follows, to wit :-
" That the ordinance designated as ' Ordinance No. 28,' entitled ' An Ordinance Concerning the Town Sur- vey,' purporting to have been passed and approved the 3d day of November, 1870. be and the same is hereby repealed and expunged. And it is further ordered that the Secretary of this Board at once draw lines in red ink around the same, on the mar- gin of the record thereof, and write thereon the words, 'Expunged by order of the Town Trustees, February 2. 1871.' and that the President and Secre- tary sign the same.
" Passed and approved February 2, 1871. "JOSE M. LOUREYRO, President.
" J. E. Goux, Secretary.
" ORDINANCE NO. 31.
" The President and Board of Trustees of the Town of Santa Barbara do ordain as follows, to wit :-
" That the survey of the Town of Santa Barbara, made by Salisbury Haley, and heretofore accepted by the authorities thereof. is hereby approved and ratified, and that the same is hereby declared the official survey of the said Town of Santa Barbara.
"The Board of Trustees of the Town of Santa Barbara, not having heretofore prescribed the duty of the Surveyor, as by law required, and no order appearing in the minutes directing the location of blocks and lots within the corporate limits of said town:
" We do therefore declare all the locations of lots and blocks, and the surveys of the same, made by W. H. Norway, not made in accordance with the ae- cepted survey of the said town, known as the Haley Survey, null and void.
" J. M. LOUREYRO, President.
" GEO. P. TEBBETTS, Secretary.
ERRORS IN THE HALEY SURVEY.
" Report of the committee appointed to report upon the errors in Salisbury Haley's survey of the eity of Santa Barbara, and what action the Board should take to remedy the same.
" M. Harloe, R. K. Sexton, and J. E. Goux, the committee appointed, report that, having consulted with W. H. Norway, County and Town Surveyor, they have learned that an error exists in the survey of our town of Santa Barbara by Salisbury Haley in the year 1851; that there is a progressive difference in the size of town bloeks from the starting point to the end of the town, which difference amounts to thirty feet, more or less, when reaching said end of the town. The result of such error is that the last block of said town near the sea-shore, on State Street, and the last block on Mission Street, are thirty feet, more or less, farther from the central point (on State Street between Cannon Perdido and Carrillo Streets) than they ought to be, and the blocks between the sea range and the coast range in the same proportion.
" The contract made by the city of Santa Barbara with S. Haley specifies that the plot of the city of Santa Barbara had to be divided into squares of 150 yards, and each one surrounded by streets sixty feet wide, except two streets to be designated by Com- mon Couneil, which shall be eighty feet wide, and which have been designated as State and Carrillo
Streets. Said survey has been made by S. Haley, and the sum of $2,000 paid for the same, and the maps showing said survey bearing Nos. 1 and 2 received and aceepted by the Common Council by a resolution or ordinance passed to that effect."
BEFORE JUDGE MAGUIRE.
Sexton's case was made a test suit. It was first tried before Judge Maguire, of the County Court. The records of the Court read as follows :-
" In the case of R. K. Sexton es. Board of Trustees. " Alternative writ of prohibition heretofore issued on order of County Judge, came on for hearing on Monday, the 14th of April, being issued on sworn petition of complainant, alleging that the Board of Trustees of the Town of Santa Barbara had ordered their Marshal to remove the fence of said complain- ant on Block No. 292, resulting, if carried out, mn irreparable injury of the petitioner, by the destruc- tion of various valuable fruit and ornamental trees thereon growing, which could not be compensated in money, and that the Marshal's bond, if any he had given, was totally inadequate to respond in the amount of damage."
The Board filed an answer denying that the prem- ises in question were a part of Bloek 292, and alleg- ing that they were wholly in the street as laid down by the official map of the town. Evidence was taken by examination of witnesses and by the introduction of doeumentary evidence, and from such I find as follows :-
" That in the year 1851 the City Council entered into a written agreement with one Salisbury Haley, to survey and lay out the city in uniform blocks of 150 yards square, placing redwood stakes, of not less than two inches in diameter and eighteen inches long, sixteen inehes in the ground, to be placed at the corner of each lot, a: d further, that the streets, with the exeeption of two, be of the width of sixty feet each; also, requiring execution and delivery of the corres- ponding map. The survey was soon after made and duly accepted by the city; the monument or stakes placed at the corner of cach lot. in conformity with the said agreement; but there seems to be considera- ble doubt as to whether Haley supplied the necessary map, as two were produced, some testifying that the one by Wrackenrueder, and others that by Brady, was the official map of the survey as accepted; but on another important point there was no conflict, to wit, that said Haley never filed any field notes of said survey; and here I must add that grave doubts uxist as to the initial points placed by Haley in mak- ing his survey, and are far from being cleared up by the affidavits read on the hearing, as in none is there positive knowledge of said point or points at the placing of same by Haley.
" It further appears that there is a line of blocks in said town. as platted by Haley, of 464 feet each, instead of 450 feet as designated, whilst others con- tain 457 feet; but that years back all of said blocks had the conventional stakes at each corner. and were then accepted by the city as the blocks of the official survey. Petitioner in 1867 purchased two blocks; one 292 is the one in question. Some sixteen years after the laying out of the town he employed a sur- veyor to trace his lines, and then erected his fences from Montecito to Castillo Streets in conformity with
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HISTORY OF SANTA BARBARA COUNTY.
said survey, planting in due time the said fruit and ornamental trees. This survey, if starting from true initial points, and reducing the excess found in the blocks heretofore mentioned to the dimensions of 450 feet each, would have the inevitable result not only to change the fenees of mauy, but of nearly all the lot owners of Santa Barbara, as well as to per- manently injure and confiscate houses and other costly improvements, most of them erected years past, when the original stakes were yet as Haley placed them, as accepted by the city, and duly certi- fied by ordinance; and as such duly conveyed to the various grantees. Further, it is a well-recognized principle, and definitely settled by our courts, that when monuments conflict with courses and distanees, the former must govern and the latter be ignored.
"One point more I wish to state, and uot, I think, without significanee to elucidate the question at issue; it is this: that though the blocks vary in size, there is not a tittle of evidence to show that the streets as laid down and opened are not of the required width in the whole town of Santa Barbara.
"Now, as a conclusion, from the foregoing I find that the premises in question are situated in the streets of Montecito and Castillo, projecting in the former from eighteen to nineteen feet, and in the lat- ter six feet, and that the removal of the fences by the town authorities is in no sense the taking of private property without just compensation.
" Therefore, the writ heretofore issued is hereby annulled and discharged, the peremptory writ prayed for denied, and the petition dismissed with costs.
" Thus ordered in Chambers this 18th day of April, A. D. 1873. J. F. MAGUIRE, County Judge."
The Times attacked the decision of Judge Maguire; said that it was influenced by selfish motives; that it was so decided because it would give him a portion of a lot. It also said the decision would not fix the Haley survey as the legal one. The tearing down of Sexton's fence was called an outrage by some, while it was defended by others.
J. L. Barker was appointed to retraee the Haley survey, which he was enabled to by finding a few of the stakes set by Haley.
The records of the District Court are as follows :- In the District Court of the First Judicial District, County of Santa Barbara.
R. K. SEXTON,
v8. -
THE TOWN OF SANTA BARBARA.
Action to quiet title to Block No. 292, in the Town of Santa Barbara.
FINDINGS OF FACT.
1. That the plaintiff, on the 19th day of April, 1873, was seized and possessed of the land described in the complaint as Block No. 292, as laid down and marked on the map of the town called the Haley map, which was made by order of the authorities thereof, and adopted by them in the year 1851.
2. That said block was originally grauted by the former authorities of said town to one Wm. Fore- man, in the month of January, 1852, as laid down and marked by said map, and that said grant has been ratified by an Act of the Legislature of this State; and that the plaintiff claims title to the same through proper mesne conveyances from said Fore- man.
3. That in the year 1870, Norway, the then Town
Surveyor, located the said block as it was laid down, and enclosed the same accordingly, and in conformity with the lines of the streets so laid down on said map, and the block so remained enclosed unto the date of the commencement of this action.
1. That Norway, to ascertain the true location of said block, connectedly took the initial point of the Haley survey, on the Carrillo and State Streets, as his starting point, and being governed by the dis- tancos as laid down on said map, and the courses which appeared to have governed the Haley survey, and that such was the most reliable and certain guide for the location of said bloek that did or now does exist.
5. That the said block as located by Norway embraces no portion of Monteeito or Castillo Streets, and that defendant has no estate or interest in said block, or any portion thereof.
(Signed) A. C. BRADFORD, District Judge.
DECREE.
The issue in this cause, by consent of parties, hav- ing been tried by the Court, and a written finding of facts having been made, bearing date the - day of 1873, and duly filed, and it appearing that the plaintiff is entitled to the relief prayed for in his complaint. It is therefore adjudged that the town of Santa Barbara, and all persons claiming under her by title accruing subsequently to the 19th day of April, 1873, be forever barred from all claims to any estate whatever in the premises mentioned in the complaint as Block No. 292, as enelosed and possessed by the plaintiff on the said 19th day of April, 1873, or any part thereof.
(Signed)
A. C. BRADFORD, District Judge. FINDINGS AND DECREE OF JUDGE MURRAY.
I find from the evidence adduced in this case, independent of that embraced in exhibit "A," being the judgment roll in the case of Sexton vs. The Town of Santa Barbara (suit to quiet title), as follows :-
1. That in the year 1851 the city of Santa Barbara was seized in fee of all the lands within its corporate limits, and that the defendant is its successor.
2. That in that year the authorities of said city anthorized Salisbury Haley to survey its lands, and lay off the same in blocks and streets.
3. That said Haley made such survey and returned a map thereof, and that the same were, in the year 1852, recognized by the city authorities as the offi- cial survey and map of said city, and the same have been continually so recognized up to the present time.
4. That said Haley established an initial point of said survey at the intersection of State and Carrillo Streets, and reported the same to the Board of Trustees of said city.
5. That on said official maps all the blocks were numbered, and were laid out in the field and marked upon the map as being 450 feet square; and that all streets were laid out as well in the field as on the map, as sixty feet wide, except State and Carrillo Streets, which were eighty feet wide.
6. That Block No. 292 of said map aud survey is bounded by four streets. two of which are Castillo and Montecito Streets, and that it was granted in the year 1852 by said city to one W. Foreman; and that the plaintiff, on the 25th day of April, 1873, was and ever sinee has been seized and possessed thereof, being the premises described in the complaint, deriving title through mesne conveyances from said Foreman.
7. That the description of said premises in the Foreman deed is as follows: "A piece of land 150
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yards square, and laid down and marked on the map of said city, made by Salisbury Haley, as square number 292;" and that such was the form for a long time used by said city in the description of lands, in conveyances given by her to private individuals.
8. That J. L. Barker was Town Surveyor of the Town of Santa Barbara in the year 1871, and as such he was directed by the Board of Trustees thereof to make a survey of Montecito and Castillo Streets, and made the same, which was by ordinance adopted and declared to be an official survey of the lines in the year 1851, which action of the Board was by act of Legislature of February 6, 1872, approved and confirmed.
9. That according to the said Barker re-survey, the plaintiff's fence encroached upon Montecito Street sixteen feet, and upon Castillo Street about five feet; but that the said Barker survey was erroneous, and the fences of the plaintiff were in reality upon the exterior of his block, and upon the true lines of Montecito and Castillo Streets, as surveyed by Salis- bury Haley, and laid down by him on said map.
10. That the Board of Trustees of said town after- wards declared plaintiff's fences so encroaching, or supposed to be so, upon said streets, to be a nuisance, and gave the said plaintiff notice to remove the same in fifteen days, or that the same would be removed by the Town Marshal.
11. That on the said 25th day of April, A. D., 1873, the plaintiff being so seized as aforesaid, the defendant, by her Town Marshal, acting by and under the authority of said Board, with a band of men under his control and direction, and without the consent of the plaintiff, entered upon the said premi- ses, and took down the fence enclosing the same, unlawfully, leaving the same open to the depreda- tions of cattle and other animals.
12. That the said premises were surrounded, and had thereon many ornamental trees and shrub- bery, which, by the said acts of the said defendant's servants, were greatly injured, and the value of the premises thereby diminished, and the said fences, so removed, rendered of little value.
13. That by consequence of the said acts of the defendant's servants, the plaintiff was damaged in the full sum of one thousand dollars.
CONCLUSION OF LAW.
The plaintiff is entitled to recover of the defend- ant the sum of one thousand dollars damages, with his costs and disbursements.
REMARKS.
I have arrived at the foregoing conclusions in the following manner: When the city of Santa Barbara assumed to deed to Foreman and others, under the official survey made by Haley, and described the blocks conveyed by her to them according to the numbers set down on the map, it must be held that she conveyed specific tracts already determined and located. The American system of town survey is exact and determinate, and leaves no resemblance to the manner of measurement from an initial point well established. The city is bound by her deed, and when the title passed to the plaintiff's predecessor, he and his heirs and assigns had full right to possess and enjoy the land, subject to no after readjustment of lines, except by due process of law. The plaintiff, desiring to fence his block, employed the Town Surveyor to point out his lines. This was done by starting the initial point of the Haley survey, and measuring
thence the distances set down in the map for streets and blocks, until at length the lines of the block named were accurately determined. The defendant's witness. Barker, who had himself been Town Sur- veyor, testifies in effect that such a measurement would produce the same result arrived at by Norway. His "re-survey" of the lines of Montecito and Cas- tillo Streets was, in his own words, made as follows:
" I did not start from any particular point. I started from any of the stakes of Mr. Haley, which I found, taking them as a basis, and made the survey as exactly as I could." Had Barker gone back to the initial point of the Haley survey, and thence meas- ured, he would have found that plaintiff had fenced in the identical tract to which he held title. Bark- er's " re-survey" avails nothing. The town having once decided this block, cannot re-locate it. The question at issue is one of identification, merely, and I am satisfied that this has been made, and that plaintiff's fences, removed by the town, were upon his true lines. The defendant's attorney denies the right of plaintiff to recover on the ground that a corporation cannot authorize its officers to commit a trespass, and that, therefore, the defendant is not liable. In answer, I will cite Dillon on Corporations, sections 769 et seq. " If, in exercising its power to open or improve streets, the agents or officers of municipal corporation, under its authority or direc- tian, commit a trespass upon, or take possession of. private property, without complying with the charter or statute, the corporation is liable in damages there- for. In such cases, also, an action will lie against a city corporation by the owner of land through which its agents have unlawfully made a sewer, or for trees destroyed and injuries done by them. A case in Louisiana, which was several times before the conrts in that State, was decided upon the same principle. The Mayor of a city tortiously and in defiance of an injunction, proceeded at the head of a posse of labor- ers, and domolished a portion of the plaintiff's house, for the supposed reason that it was on public ground. The city corporation ratified the act by defending it. On the first appeal the court doubted whether the corporation could be made liable for the wrong- ful acts charged against its officers, especially as these were alleged to have been done by them will- fully and maliciously. On the second appeal it was held, that although the acts of the Mayor were done without the previous order of the City Council, yet the corporation, by reason of its subsequent ratifica- tion, was liable, and the plaintiff recovered."
The act of February 6, 1872, ratifying the acts of the trustees of the town of Santa Barbara cannot be so construed as to impair the obligation of the con- tract made by the city when it deeded to Fore- man. No power can appropriate private property to public use without just compensation first made. What the town could not do in this regard, the Leg- islature could not do for her. Both must bow to the provision contained in the eighth section of the first article of our State Constitution. There was no testi- mony as to damage, except that given by the plain- tiff's witnesses. These agree in assessing the dam- age at more than the amount claimed, to-wit: one thousand dollars. Let judgment be entered in favor of the plaintiff for one thousand dollars and his costs and disbursements in this action.
[Signed] WALTER MURRAY, District Judge.
When the District Court uttered this decision the Council passed the following ordinance (No. 39),
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HISTORY OF SANTA BARBARA COUNTY.
providing for the survey of streets, lots, and blocks of the city :-
The Common Council of the city of Santa Bar- bara does ordain as follows:
SECTION 1. Whenever any survey shall hereafter be made by the City Surveyor he must, in the loca- tion of the streets, blocks, or lots. take the line of State Street for his base line, and he must take for his starting point the iron stake at the southwest intersection of State and Carrillo Streets, on the easterly corner of Block No. 142, or the iron stake on the easterly block of No. 158, at the intersection of State and Cañon Perdido Streets, and that he must allow sixty feet for the width of each street, except State and Carrillo, for width of which he must allow eighty feet, and for each block be must allow 450 feet, as provided and laid down on the official map of the city, and the City Surveyor must make all surveys and locate streets and blocks to conform to the location of the same on the said map, with the line of State Street for his base line, and of the aforesaid iron stakes for his initial point.
SEC. 2. All surveys heretofore made, and all loca- tion of streets, lots, or blocks which are not in accordance with the provisions of this ordinance, are hereby declared to be void, and no city block, lot of land, or street shall hereafter be established or located by the City Surveyor, or in any other man- ner except as herein provided.
SEC. 3. The City Surveyor is hereby directed to erect or place suitable permanent monuments of stone or iron at the points designated in Section 1 of this ordinance, and to report to the Common Council his action in the matter, and give a particular descrip- tion of said monuments, and their courses and dis- tances from such other points as will accurately determine their location.
SEC. 4. Ordinance No. 32, entitled " Ordinance to approve and ratify the survey of the town of Santa Barbara," passed and approved February 11, 1871, is hereby repealed.
SEC. 5. Ordinance No. 35, entitled " An official survey of the lines of the old Haley survey of Chapella, State, and Anacapa Streets, passed and approved November 9, 1871, is hereby repealed.
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