Gilfillan

This is an action to restrain the defendants from destroying a certain fence of plaintiff, and to have it adjudged that a certain strip of land is a private way, and not a public highway. Judgment went for plaintiff in the court below, and defendants appeal from the judgment and from an order denying their motion for a new trial. The defendant mainly interested in the litigation is Mrs. Phoebe J. Shattuck, who is the owner of a certain lot of land. Her husband, D. D. Shattuck, was made a defendant, and joined with her in her answer and defense. The only other defendant named in the complaint is Martin F. Fragley, as superintendent of streets of the city and county of San Francisco; and afterwards his successor, the board of public works of said city and county, was substituted for him as defendant.

Fifty-vara lot No. 124, or at least what was such lot, is situated on the northeast corner of California and Powell streets, in the city of San Francisco. This vara lot was owned in 1849 by one William Miles. He divided it into two equal parts by an open strip of land twenty-five and one half feet wide, commencing at California Street and running northerly to the rear of the lot—one…