I concur in the judgment and in the opinion of Justice Shaw, and desire only to suggest a consideration, not therein adverted to, which, in my opinion, fortifies the conclusion that the broad space between the Great Highway and the east line of Forty-ninth Avenue never was irrevocably or absolutely dedicated as a street of San Francisco, and there is no claim that it was ever dedicated or reserved for any other public purpose. It was not within the power of the supervisors to make a dedication of any part of the "outside lands" in violation of the trust upon which they were committed to their disposal. The grant of those lands to the city was upon a trust for the benefit of those in bonafide possession on March 8, 1866, and the city was administering that trust under the authority and subject to the restrictions of the act of March 27, 1868, confirming Order 800, which contained these qualifying words (Stats. 1867-1878, p. 383): "No person in actual possession of any of the lands mentioned in the first section of said order on the said eighth day of March, eighteen hundred and sixty-six, and on which five years taxes shall have been paid, as provided in such order, shall be dispossessed of any of said lands under any order heretofore or hereafter made by said board of supervisors for the reservation of any of said lands for public uses, except for streets, until compensation shall have been actually made to such person, as provided in said order Number Eight Hundred; and until such compensation shall have been made such persons shall be allowed to continue in possession of such lands so possessed by them." Not only is the ratification of the order subject to this express qualification, but the ratification itself extends only to what is done in conformity to the order, and both the order and the confirmatory statute are so far subject to the trust which they assume to execute that the plan to be adopted for the subdivision of the outside *Page 388 lands into lots and blocks in pursuance of the first section of Order 800 was subject to the inherent condition that it must be reasonable and equitable in its relation to the beneficiaries of the trust, and that when adopted it should be impartially followed out in its application to the holdings of those in possession of the lands. Such a plan was adopted. It provided for reservations of large tracts for park and cemetery and for smaller reservations for other purposes, for all of which the persons dispossessed were to be compensated. It provided also for the Great Highway and for the subdivision of the unreserved portion of the outside lands into blocks divided by north and south streets seventy feet wide, and east and west streets eighty feet wide; the blocks were to be rectangular and two hundred and forty by six hundred feet in dimensions where they could be so surveyed, but in irregular spaces like that between the diverging lines of Forty-ninth Avenue and the Great Highway there is the clearest implication that fractional blocks should still be laid out as large as the regular execution of the plan would leave them, or in other words, that a bona fide occupant of such irregular spaces should not be wholly dispossessed of his holding without compensation merely because, after laying off the streets in regular and impartial execution of a fair and equitable plan, he would have left a block smaller than the full block. The plan required him to give up so much of his land as fell within the streets running at right angles and seventy and eighty feet wide. It did not require him to give up more, and his rights as a beneficiary of the trust forbade such an arbitrary departure from the plan as would compel him to do so.
As this case is presented on the record we must assume that the lands between high tide and the east line of Forty-ninth Avenue and including the demanded premises were in the bona fide occupation of Rousset or his grantors on March 8, 1866. If so the board of supervisors violated their trust in approving a map which attempted to dedicate as a street more of his land than the plan of subdivision called for, and whether this was done purposely or by mistake, it was not only their right but their duty to rectify the wrong. This they appear to have done by the subsequent adoption of the Humphrey's Map, and the conveyance of the lot; and this *Page 389 fact — that they only did in the end what it was their paramount duty to do in the beginning — that they merely transferred to the person rightfully entitled that to which the city never had a valid claim, distinguishes this case from Hoadly v. SanFrancisco, 50 Cal. 265, and all other cases depending on the principle that property dedicated to a public use is inalienable.
Angellotti, J., concurred.