Holbrook

This is an action to eject the defendants from a piece of land on the ground that the same is a part of a public highway, and to recover damages for use and occupation. The plaintiff had judgment and the defendants present the case to this court on an appeal from the judgment with their bill of exceptions.

The facts of the case, from the standpoint of the defendants, are briefly as follows: The plaintiff is a municipal corporation, organized in 1911, as a city of the sixth class. The land in controversy lies within its boundaries. At all times mentioned in the case, prior to the organization of the plaintiff, the land was in unincorporated territory of the county of San Mateo. It was formerly a part of a larger tract which was fenced and used for a pasture and dairy. In the year 1900 Oscar Heyman sold a lot to one Charles Olson and marked out a space in the pasture as the land sold, which was described as Lot 28 in Block “P” of the Mission Street Tract, and was twenty-five feet fronting on San Jose Avenue by a uniform depth of one hundred feet. Olson, instead of building his house upon said lot, erected it upon land included in Prim Street, the exact description of which appears…