
    [No. 4418.]
    J. D. TATE v. THE CITY OF SACRAMENTO and JOHN RIDER.
    Dedication of Land fob a Public Stbeet.—If a party is and has been for many years in the occupation of a piece of land, and the authorities claim that it has been dedicated as a public street, and that his buildings thereon are a public nuisance, it devolves on them to show affirmatively that it has been thus dedicated.
    Appeal from the District Court, Sixth Judicial District, County of Sacramento.
    The plaintiff had been, for more than ten years, in the possession of a piece of land forty feet by fifty in length, and fronting on I street at a place opposite to where Third street enters I. The land lay in what would be Third street north of I if Third was opened north of I. The plaintiff had covered the lot with buildings, which he rented to tenants. The council of the city of Sacramento claimed that when the city of Sacramento was laid out, in 1848 and 1849, by Sutter and his grantees, that Third street was dedicated as a public street north of I, and passed a resolution directing the defendant Bider, who was street commissioner, to open the street. He threatened to do so, and the plaintiff commenced this action to enjoin him. The defendants, in their answer, set up that the land was a public street, and that the buildings on it were an obstruction to the use of the street, and were a nuisance.
    The plaintiff had judgment and the defendants appealed.
    
      McKune & Welty, for the Appellant.
    
      Henry Edgerton, for the Respondent.
   By the Court, Crockett, J.:

At the commencement of the action the plaintiff was and for many years had been in the actual occupation of the premises in controversy. His possession was prima facie evidence of title, and must be presumed to have been rightful until the contrary appears. But the defendant contends that the land on which the plaintiff’s buildings stand constitutes a part of Third street, north of I street, and that the buildings are a public nuisance, which the city authorities may lawfully remove. In support of this claim it was incumbent on the defendant to show affirmatively that Third street north of I street had been dedicated as a public street. Without discussing the evidence in detail, we deem it sufficient to say on this point that it does not satisfactorily appear, nor does the referee find, that Third street, north of I, was ever dedicated as a public street.

Order and judgment affirmed.  