Appeal from the Twelfth Judicial District.

The complaint avers, that in the City of San Francisco there is a street known as “ East Street,” which is one hundred and thirty-seven and a half feet wide, and extends from Jackson to Folsom Street; that by an Act of March 26th, 1851 (generally known as the Water Lot Bill), it was provided that all the lots within certain boundaries therein named were known and designated as beach and water lots, and the eastern line of East Street, from Jackson to Folsom streets, was declared to be one of the boundaries of said beach and water lots, which provision was intended for the purpose of establishing, opening, and dedicating East Street to public use as a street; that by the Act of April 26th, 1858, it was provided that all the streets within the water line front of the city, as laid down on the official map and high water mark, and all the streets mentioned and referred to in the aforesaid Act of March 26th, 1851, to the full extent of said streets as laid down on the map or plat of J. J. Gardiner, Surveyor, were confirmed, established, and dedicated to the public use as streets; that East Street is one of the streets so confirmed, established, and dedicated; that it is the street mentioned and referred to in each of the aforesaid acts; that it is one of the streets lying between high water mark and the water fine front of the city; that it is one of the streets laid down on the official map, and also on Gardiner’s map; and that the foregoing provision was inserted in the Act of 1858 for the purpose of establishing, confirming, and dedicating East Street to public use as a street; that on June 26th, 1856, the Board of Aldermen and Assistant Aider-men of the city passed an ordinance, which was approved by the Mayor, declaring East Street open from Folsom to Olay Street, and dedicating it to public use as laid down on the official map; that on June 30th, 1856, the said Board of Aldermen and Assistant Aldermen passed another ordinance, which was approved by the Mayor, declaring East Street open from Clay to Jackson Street,, and dedicating it to public use as a street as laid down on the official map; that for more than six years last past East Street has been and is now a common and public highway or street for the people of the State, and during said time has been repaired from time to time at the expense of the property owners adjoining the street, and at the expense of the inhabitants of the city by means of assessments upon the adjoining lots or blocks by virtue of certain Acts of the Legislature; that all the people of the State ought to have a free right of transit over said street, but that defendants have lately obstructed said street with buildings from Clay to Jackson Street so as to prevent travel over the same, and they threaten to continue said obstructions; that unless said obstructions are removed all travel over said street will be thereby prevented, and that said obstructions are a public nuisance; that the relator and other citizens have often requested the defendants to remove the nuisance, but they refuse to do so, and falsely pretend that the ground covered by said buildings is not a public street.

The prayer is that the defendants be required to abate the nuisance and be enjoined from continuing it.

The answers of defendants admit there is in said city a street called East Street, but deny that it extends from Folsom to Jackson Street; on the contrary, they aver it only extends from Folsom to Market Street. They admit that by the Act of March 26th, 1851, the eastern line of East Street, from Folsom to Jackson, is designated as one of the boundaries of the beach and water lots, but deny that such boundary was inserted for the purpose of establishing, opening, or dedicating East Street, or that it was established or dedicated as a public street by said act, or that it was the object of the act to extend, open, or dedicate East Street beyond the actual limits of it as laid down on the official map referred to in the act; and they aver that the act, in bounding the beach and water lots by an extension of the east line of East Street to the north line of Jackson Street, intended only the protraction of said line as a single line, to mark and indicate the boundary of the permanent water front of the city, and not for the purpose of extending East Street. They deny that it was the intention of the Act of April 26th, 1858, or that said act operated to establish and dedicate or extend East Street between Market and Jackson; and they aver that even if such extension and dedication were contemplated by the act, the same was null and void as against the defendants, who are and were, long before the passage of the act, the bona fide owners of the property claimed in the complaint to constitute East Street; and they aver that no proceedings had been had for the purpose of condemning the property for the purposes of a street, or for extending or establishing East Street from Folsom to Jackson, nor any mode provided or attempted for compensating the defendants for said land. That if any such ordinances were passed as described in the complaint, they were null and void; because no provision was made for ascertaining the value of said lands to be so dedicated, and none for compensating the defendants who owned the land. They deny that East Street was ever extended from Folsom to Jackson Street either in law or in fact; or that what is claimed as East Street, between Folsom and Jackson, was, or ever has been, or is now, used as a public street or highway, or that the same has been repaired as stated in the complaint, or that any one ought now, or at any time, to have the free use of said land as a street. They admit that they have erected buildings on the land, but deny that these buildings obstruct any portion of East Street. They aver that the buildings were erected more than six years ago, during all which time they have been in the peaceable occupation and enjoyment of them. They admit that they intend to continue and maintain the said buildings, and deny that in doing so they will commit a nuisance or inflict a wrong upon the public; and deny that the land in contest has ever been or is now set apart for and used as a public street or highway, or has been since 1851 repaired at the expense of any one.

All the testimony in the case was taken and reported by a referee appointed by the consent of the parties, and upon his report and the pleadings judgment was rendered by the Court in favor of the plaintiffs. The defendants moved for a new trial, which motion was denied, and the defendants have appealed both from the original decree and the order denying a new trial. The evidence, so far as it is material, is stated in the opinion of the Court.