Appeal from the Circuit Court of the United States for the Northern District of California.

For opinion of circuit court,- see 86 Fed. 30.

Suit in equity to quiet title to certain lands, and to enjoin the city of Oakland (which claims that the land in question has been dedicated as a public street known as “Fallon Street”) from interfering with the same.

The suit was tried upon the following stipulation as to the facts:

“It is hereby stipulated in the ahove-entitled action that the following facts are admitted to be true, and proof of the same is hereby waived: That complainant was incorporated as averred in its hill; that the map mentioned in respondents’ answer was filed and recorded by the persons from whom complainant deraigns title, and who «were the owners in common of a tract of land embracing the land in controversy and the other lands shown on said map, on September 2, 1853, and that the copy attached to the answer, and marked ‘Exhibit A,’ is a full, true, and correct copy of said map; that the I lancho Do. San Antonio was granted by the Spanish governor of California, in 1820, to one Luis Peralta, who divided it among his sons, to one of whom (Vicenie Peralta) he allotted the land bounded on the west by the Bay of San francisco, on the south and east by the Estuary of San Antonio (designated on the Kellersberger map> as ‘Bay of Contra Costa’ and ‘Bayou’), and on the north by line extending from the Bay of San Francisco to said estuary, and lying nor ill of the most northern tier of blocks shown on said Kellersberger map: that the claim of Vicente Peralta to said land was continued in 1854 by the board of commissioners appointed by act of congress to inquire into California land grants of Spanish or Mexican origin, and, on appeal to the United States district court, said confirmation was affirmed, in 1855, and the supremo court of the United States, in U. S. v. Peralta, 19 How. 343, affirmed said decision, and patent accordingly has issued from the United States conveying and confirming said lands to the successors in interest of Vicente Peralta; that, at the date of filing said Kellersberger map, ilie owners signing the same (who had succeeded to all the rights of Vicente Peralta in nil said lands so allotted to him) owned a tract of land embracing all the lands laid oil in blocks by the Kellersberger map, and all the lands surrounding the portion so subdivided into blocks, and extending therefrom to said exterior boundaries of the Vicente Peralta allotment; that said exterior strip or margin was not partitioned by said partition deed, but remained in undivided and common ownership for upward of ten years thereafter, unless the court shall hold that the premises in controversy were dedicated by said map to ihe public as a portion of Fallon street; that said map was made by said owners for the purpose of a partition and allotment of the blocks thereon laid down amongst themselves, and on the said 15th day of August, 1853, simultaneously with the filing of said map for record, said owners made partition of said blocks, allotting the same amongst themselves by the numbers and designations of the various blocks thereof as laid down, numbered, and designated upon said map, and executed amongst themselves reciprocally a deed of partiiion, whereby block 106 (but not the lands in controversy) was allotted and conveyed in severalty to John 0. Hays and John Oaperton, two of said owners: and the title of the complainant in this suit to the land in controversy is derived from said tenants in common by conveyances executed by them subsequently to said partition deed; the title to'said block 13(5 is vested in other persons, not parties to this action, who hold the same under conveyances executed by said Hays and Caperton; (hat, after said parí ilion was made, the respective parties thereto sold and conveyed the lands in tlieir respective allotments to various persons, and from time to time, describing ihe parcels in the conveyances executed by them by the numbers and description thereof as shown upon said map, and referring to said map by its title of 'Kellersberger’s Mop of Oakland’ for particularity of description; that about the year 1855, and at all times since, the land in controversy in this action was and is inclosed by substantial fence, and since 1858 it has been occupied as a residence; that tiie land claimed by respondents’ answer to be a. portion of Fallon street adjacent to complainant’s property has never been actually opened or used as a street; but that other portion's of Fallon street, to wit. from Sixth street to Eighth street, inclusive, have been for many years so opened and used by the public under the dedication made by the deed of partition and the said map; that the premise's are now improved as slated in complainant’s complaint, and are of the value therein stilted; that the board of trustees of the town of Oakland, on the 27th day of August, 1858, passed and adopted au ordinance, of which a copy is hereto annexed, marked ‘Exhibit B’; that the streets running north and south as laid down on said map, including Fallon street, are 80 feet wide; but ihe complainant does not admit, the respondents’ contention that by the facts hereinbefore set forth, or by any other facts, Fallon street extends further north than Tenth street. It is further stipulated that evidence may be introduced at the trial by either party as to matters not covered by the facts hereinbefore recited, and that such evidence may be taken orally instead of by deposition.”

The following is tbe map referred to as “Exhibit A”:

Exhibit B reads as follows:

“An Ordinance Declaring the Streets in the Town of Oakland Public Highways.

“The board of trustees of the town of Oakland do ordain and resolve as follows:

“Section 1. The following streets in the town of Oakland as laid down and described on Kellersberger’s map of Oakland are hereby declared public streets and highways, to wit: West street, Brush street, Castro street, Grove street, Jefferson street, Olay street, Washington street, Broadway, Franklin street, Webster street, Harrison street, Alice street, Jackson street, Julia street, and Oak street; said streets are 80 feet wide, except Broadway, which is one hundred and ten feet wide, and all run in direct line from high-water mark to a line two hundred feet north of the northern line of 18th street. Also the following named and described streets; Second street, Third street, Fourth street, Fifth street, Sixth street, Seventh street, Eighth street, Ninth street, Tenth street, Eleventh street, Twelfth street, and Thirteenth street, all of which said streets are eighty feet wide, and extend from high-tide line of the San Antonio creek to a line two hundred feet westerly from the western line of West street. Also so much of First or Front street, and so much of Fallon street, as are above high-water mark.

“See. 2. It shall not be lawful for any person to fence across said streets, or to erect buildings therein, or in any way to obstruct the free passage of said streets, or of any one of them. Any violation of this ordinance shall be punished by fine of not less than forty dollars nor more than one hundred dollars.

“Sec. 3. It shall be the duty of the marshal to remove any and all obstructions placed in the streets -contrary to the provisions of this ordinance, and for this purpose he may proceed without warrant or process to remove ■fli (X on ryi p

“Passed August 27, 1853. '

“[Signed] A. W. Barren, President of Board of Trustees.

“[Signed] A. S. Hurlbutt, Clerk of the Board of Trustees.”