This is an action to have an encroachment upon a certain street in the town of Red Bluff, Tehama county, declared to be a public nuisance and an unlawful obstruction, and to have the same removed. Plaintiff had judgment, from which and from the order denying his motion for a new trial defendant appeals.

It is averred in the complaint that Washington street, running north and south, in said town has a uniform width of eighty feet through its entire length, is now and for many years last past has continuously been one of the regularly and legally established and existing public streets and highways of said town; that defendant is the owner of certain six lots, situated in block 27, as laid down on the official map of said town, on file in the office of the county recorder of said Tehama county, the westerly ends of said lots lying along and being identical with the easterly boundary of said street a distance of one hundred and fifty feet; that defendant has encroached upon said street and the sidewalk thereof, along the westerly ends of said lots, “by a fence and sheds, to the extent of nine feet six and one-half inches, and he has inclosed and does now inclose such and said portions of said street and sidewalk”; that, on February 1, 1909, the board of trustees of said town duly adopted a resolution declaring said encroachment to be a public nuisance, and directed suit to be commenced for its abatement.

Defendant does not deny his inclosure of the said, strip of land, but he claims that his lots are not bounded on the west by the westerly line thereof as laid down on said official map, but by “a line parallel to the said west line as shown on said official map and nine feet and six and one-half inches to the west thereof”; denies that said strip of land forms part of said street and hence he has not encroached thereon; avers that the land described in the complaint is part of a tract granted by the United States by patent dated September 20, 1866, to Warner Earll, judge of the county court of said county, “in trust for the several use and benefit of the occupants of the townsite of Red Bluff according to their respective interests, and to his successors and assigns in trust as aforesaid”; that the town of Red Bluff was incorporated in the year 1876, but that said town had existed as an unincorporated town and had comprised the said land for many years prior to its incorporation and for many years prior to the date of said patent; that said strip of land has been inclosed by defendant and his predecessors in interest for more than fifty years last past, and has never at any time been opened, traveled or used as a street or highway; that on March 6, 1868, and for many years prior thereto, there was a substantial frame building in said street as laid down on the official map of said town and bordering upon said strip of land, about one hundred and twenty feet long and fifty feet wide; that about the year 1873 and prior to the incorporation of said town, the board of supervisors of said county ordered the streets of said town to be opened and the obstructions removed, whereupon defendant’s predecessor in interest, the then owner of said strip of land and of said lots and the said building at great cost to him, moved said building under the direction of the surveyor of said county to a point by him indicated as the east line of said street, where said building remained until in 1903, when defendant took down the said building and erected a fence along the west line thereof for its entire length inclosing said strip of land; that ever since said east line of said street had been fixed by said county surveyor, as aforesaid, the said line has been acquiesced in as the east line of said street until the commencement of this action; that plaintiff is estopped from claiming that said strip of land was a part of said street, and that the action is barred by section 318 of the Code of Civil Procedure.

The cause was tried by the court, without a jury, and it made findings as follows: 1. That all the allegations of the complaint are true; 2. That the strip of land in question is of dimensions as averred by both parties; 3. That the cause of action is not barred by section 318, Code of Civil Procedure ; 4. That the land described in the complaint was granted to Warner Earll as alleged in the answer; 5. That the said town was incorporated in 1876 as alleged and, prior thereto, for many years, existed as an unincorporated town; 6. That said strip of land has not been inclosed by defendant and his predecessors in interest for more than fifty years last past, nor longer than since the year 1865. “Said described land has been inclosed since the year 1856, but not by said defendant or his predecessors in interest”; 7. That said "strip of land has never at any time been opened or traveled or used as a street; 8. That neither on March 6, 1868, nor for any time prior thereto was there a substantial frame building in said street as said street is laid down on the official map of said town; that some time after July 6, 1868, one H. C. Curry erected a barn and shed in said street as so laid down on said map and bordering on said strip of land and of the dimensions alleged; 9. That about 1873 and before said town was incorporated, and while the streets thereof were under the control of the board of supervisors of said county, the said board ordered the streets opened and the obstructions removed; 10. That the predecessor in interest of defendant and the then owner of the said lots and the said building, after said order was given and made, and about 1873, and in consequence thereof, moved said building upon the said lots and upon the strip of land. “That at said time the said predecessor in interest of the defendant was not the owner of said strip of land”; 11. That after said removal of said building and until abont 1903, when defendant took down said building, the west line of said building formed the west line of said strip of land for a distance of one hundred and twenty feet, being the entire length of said building, and when so taken down defendant built a fence along the west side of said strip; 12. That said building was mot removed at great expense or at any expense greater than $100; 13. That the line to which said building was removed “has not been acquiesced in as the east line of said Washington street”; 14. That plaintiff is not estopped from claiming that said strip of land is a part of said street. With the pleadings before us and the findings thus given, which latter seem to have support in the evidence, the opinion rendered by the learned trial judge, brought to our attention by respondent, clearly and as succinctly as the questions raised may readily be disposed of, covers the principal points involved in the case. It is as follows:

Appellant contends that, as title to the townsite starts with the government, the burden was on plaintiff to connect itself with that title, which it has not done except by dedication, and this could not be accomplished as against the government by the legislature. We think the learned trial judge showed, by the legislative history relating to the land, by the filing of plats of the town, as early as in 1859 and 1861, designating the streets, alleys and lots, as they have ever since existed, and by the Eárll patent, which issued subsequently to the act of Congress expressly granting right of way over public lands not reserved for public use (U. S. Stats., July 26, 1866, [14 Stats., p. 251]), sufficient, at least, to make a prima facie case, and to cast the burden upon defendant to bring himself, through some predecessor in interest, within the trust clause of the patent and to show that such predecessor was an “occupant” of the disputed land, such as was contemplated by the patent. This defendant failed to do. He does not, as the court found, connect himself with any title prior to the issuing of the patent. A sheriff’s deed was introduced to show a conveyance to one Hollister in 1865 and by Hollister to H. C. Curry, from whom defendant deraigns title. But the sheriff’s deed to Hollister and his to Curry refer to the lots and block as designated on the official plat, and lend no support to the claim of occupancy of the strip in controversy. Plaintiff was not called upon to show occupancy of the street for highway purposes in order to show title. Its title is deraigned from the government, and it could not be questioned except by someone bringing himself within the saving provisions of the Earll patent. There is no evidence connecting Hollister’s title with the government or to show that he conveyed this strip of land or intended to convey it, and it does not appear very clearly who first erected the obstruction in Washington street. Hollister conveyed to Curry May 11, 1868, and Curry’s title is connected with the Earll patent by certificate of the successor to Earll and is dated July 6, 1868. It recites the provisions of the patent, also that it is issued in conformity with the acts of Congress and of the legislature, and grants “the following property described according to the official plat of said town as lots,” etc., naming the said lots. It appears that at this time the obstruction now complained of existed and Curry was using the shed and building on the said strip, but if he claimed it as an occupant by virtue of the provisions of the patent, it was his duty to have made known Ms claim to the county judge when he applied for the lots and to have had his certificate issue in conformity with his claim and proofs. In our opinion, he took nothing by his certificate of title beyond the boundaries of the lots as laid down on the official plat of the town.

The evidence was that the street was used in its entire length but was never opened and used for its full width, and defendant claims that by nonuser plaintiff lost its right to any greater use than had been given the street. The plaintiff having acquired a right to an eighty-foot street, such right was not lost because only part of this width was in fact used. Even where the right is by dedication, “the sale of lots,” says Mr. Elliott, “with reference to the plat fixes the private rights of purchasers.” (Elliott on Roads, 2d ed., sec. 118.) It often happens that in towns and cities there may be streets only partially improved and used, or used not at all, for a long period, but the public does not necessarily thereby lose its right to such streets. (Meier v. Portland etc. Co., 16 Or. 500 , [ 19 Pac. 610 , 1 L. R. A. 856]; Beall v. Weir, 11 .Cal. App. 364, [ 105 Pac. 133 ].)

The evidence does not support defendant’s contention that the public and plaintiff acquiesced in the occupation of the street by defendant and are estopped now to claim the full width for the street. Even defendant was ignorant of the fact that his inelosure extended into the street. He testified: “I had no idea when I bought the property that there was inclosed there between the alley and the east line of Washington street more than the regular one hundred and fifteen feet.”

The court refused to allow defendant to prove that similar conditions existed at some other points on this street. We cannot see that the inquiry was material.

Defendant offered witnesses to show that the county surveyor, pursuant to the order of the supervisors to remove all obstructions from the streets, indicated the line to which the obstructions were to be removed, and that this line was the same as the west line of the strip now in controversy. In ruling, the court said: “I still adhere to my original proposition, Mr. Johnson, that if you can prove that that property, at the date of the patent, was in the occupancy of somebody you will have a right to do it. If it is a matter of fact that there was a street there eighty feet wide, Mr. Shackelford (the county surveyor) had no authority to cut it down to sixty by anything he might do. ’ ’ In this view of the matter we concur. In point of fact, the order of the board of supervisors was that the roadmaster open the streets and alleys. No authority is shown to have been given to Shackelford.

Other assignments of error do not seem to present any point not disposed of.

The claim that the action is barred by section 318, Code of Civil Procedure, is based on the assumption that “the land inclosed by the defendant never was a street, and that defendant has been in possession of said strip of land for about ten years immediately preceding the commencement of the action, claiming to.be the owner adversely to the whole world. ’' The first premise is not supported by the evidence. The land inclosed was part of a street. Upon the other ground, suffice it to say that title to a public street cannot be acquired by adverse use. (See subject fully considered in People v. Kerber, 152 Cal. 731, [ 93 Pac. 878 ].) This is the rule, in general, and ceases to operate only where the public use is abandoned by competent authority and the land is held as proprietary property. (Id.)

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 2, 1911.