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PATERson, J.-This is an action of ejectment brought by plaintiff to recover of the defendants two parcels of land in the city and county of San Francisco, forming a part of what is known as Lafayette Park. The plaintiff claims that it is seised in fee of the land in trust for the people of the state; that the lands were dedicated to the public; that the defendants are trespassers and intruders thereon. Plaintiff claims title under section 5 of the act of Congress of July 1, 1864 (13 Stats. at large, 333), and an act of the legislature of California, passed March 11, 1858 (Stats. 1858, p. 52).
A digest of the provisions of the Van Ness ordinance and other ordinances of the city, mentioned in the act of the legislature referred to, is given in the report of Hoadley v. San Francisco, 50 Cal. 266, and shows the basis of plaintiff's claim to the lands in controversy in this (*:RSe.
In defense of the action, the defendants made a general denial, and pleaded in bar three final judgments entered before the commencement of the present action.
The court below found that all the matters and issues in this action, and all the questions of title and of dedication involved herein, had been, prior to the commencement of this action, heard, tried, and finally adjudicated and determined in favor of S. W. Holladay, one of the defendants herein, and against the plaintiff herein, in an action commenced November 16, 1863, in the fourth district court, wherein the people of the state were plaintiffs and S. W. Holladay was defendant; that the same land was the subject-matter of controversy in that action as in this, and that the same title and the same question of dedication to public use and acceptance by the public were litigated and adjudicated in that action as in this action; that said former action was commenced at the instance of plaintiff herein, and the trial thereof was managed and conducted in the interests of the plaintiffs by its attorneys and officers acting on its behalf.
The court further found that all the matters in issue in this action, including the title and question of dedication, were finally adjudged and determined in favor of Holladay, one of the defendants herein, and against the plaintiff herein, in an action commenced December 17, 1864, in said fourth district court, wherein Holladay was plaintiff and the city and county of San Francisco was defendant; that the same land was the subject-matter of that action as in the present action. Upon these findings the court rendered judgment for the defendants. The third action referred to was an action commenced by the people of the state, on the relation of Mayor Bryant, against the present defendants, wherein it was alleged by plaintiff that the land in controversy was a portion of a public square dedicated to public uses. In the lower court said action was decided in favor of these defendants. Plaintiff’s motion for a new trial was denied, an appeal was taken to this court, and the appeal was pending at the time the case at bar was decided. The decision of this court in that case is reported in 68 Cal. 439, and it was there held that the title which passed to the city and county of San Francisco by the act of July 1, 1864, was unaffected by the judgment in the case of People v. Holladay, commenced November 16, 1863, because it was acquired long after issue was joined in the action in which the judgment pleaded in bar was rendered, and because the attorney-general of the state had no power to submit the title of the government of the United States for adjudication. The court below, therefore, erred in holding that said judgment, the first judgment pleaded in bar of this action, estopped the plaintiff from questioning the defendants' title to the lands in controversy. The third judgment pleaded as an estoppel by the defendants in this action was reversed by this court in the People v. Holladay, supra, and of course is no defense to this action. In that case this court said: “If the particular piece of land in controversy had been, prior to the passage of the act of Congress of July 1, 1864, dedicated by the city as a public square, Congress, by granting and relinquishing the title of the United States to the city, . . . . ratified and confirmed the dedication, . and this virtually perfected the dedication.” (68 Cal. 444.) It was not decided in that case whether there had been a dedication. That question, we think, was determined in favor of the defendant herein by the judgment in the second action. The objection to the validity of the judgment in the first case, which was made in the People v. Holladay, supra, cannot be urged against the judgment in the case of Holladay v. City and County of San Francisco, the second judgment pleaded in bar in this case, because Holladay v. City and County of San Francisco was commenced December 17, 1864, several months after the passage of the act of Congress referred to. If the land has ever been dedicated to the public use, such dedication must have been before the passage of that act, at least before the commencement of the action, December 17, 1864. In the second action referred to, the same acts which are here claimed as acts of dedication were relied upon by the defendant therein, plaintiff herein. The court there necessarily held, in view of its judgment, that no dedication had ever been made. It would seem, therefore, that the matter is res adjudicata, and that the city is barred from further litigation of the question, and estopped from denying the fact. Issue therein was not joined until December 30, 1864, and final judgment was not rendered until December 25, 1867. It is claimed by appellant that the record in that case is not binding upon the city or the people, for the reason that, at the date of the institution of the suit, ali the title that the city had was the bare right to the possession of this land in trust for the people of the state. But the particular
matter litigated in that suit was, whether the city held the fee in trust for the people or at all, and it was adjudged therein that the city had no right, title, or interest in the land. The judgment in that case was not appealed from, and is final so far as the city is concerned. It quieted the title of the plaintiff as against any and all claims of the defendant therein. Upon the strength of that title, so quieted, it appears that some of these defendants have purchased portions of the property in good faith. “It is for the public good that there be an end to litigation. If it were otherwise, there would be no security for any person, and great oppression might be done under color and pretense of law.” (Miles v. Caldwell, 2 Wall. 39; Broom's Legal Maxims, 243.) 2. The provisions of the consolidation act authorized the city and county of San Francisco to “sue and be sued, plead and be impleaded, defend and be defended, in all courts of law, and in all actions of law, and in all actions whatsoever.” (Act of 1850, sec. 2; Stats. 1850, p. 223.) Under this provision, we think that the plaintiff in Holladay v. City and County of San Francisco, supra, could maintain an action against said city and county. Order affirmed.
SHARPSTEIN, J., SEARLs, C. J., McFARLAND, J., and THORNTON, J., concurred.
[No. 11238. Department One.—April 30, 1888] CHARLES F. BURHAM, APPELLANT, v. SAN FRANCISCO FUSE MANUFACTURING COMPANY, RE
CoRPortATION.—Dissolution AT INSTANCE OF STOCKHOLDER.—The facts that the officers of a corporation had refused to allow a stockholder to inspect its account-books, that it is carrying on a losing business, and that the directors had levied an assessment for the purpose of compelling the stockholder to dispose of his stock, are insufficient to entitle the stockholder to maintain an action for the dissolution of the corporation.
AppEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order setting aside a restraining order.
The action was brought by the plaintiff, a stockholder in the corporation defendant, to restrain the sale of his stock for a delinquent assessment, and for the appointment of a receiver to take charge of and wind up the affairs of the defendant. The court granted a preliminary restraining order, which was afterwards set aside, and judgment rendered in favor of the defendant. The further facts are stated in the opinion of the court.
J. C. Bates, for Appellant.
The plaintiff had a right to inspect the books and papers of the aefcndant. (People v. Throop, 12 Wend. 183; Colheal v. Brouwer, 5 N. Y. 566; Taylor on Private Corporations, sec. 565.)
James A. Waymire, and W. T. Baggett, for Respondent.
McKINSTRY, J.-The complaint avers that on the sixth day of April, 1885, the board of directors of the defendant passed an order whereby they levied an assessment, No. 10, of two dollars a share on the capital stock of said corporation, payable, etc.; that the order contained a notice that “any stock upon which this [said]