Ball v. Stephens

32 Citing cases

  1. Shultz v. Department of Army, U.S.

    10 F.3d 649 (9th Cir. 1993)   Cited 13 times

    Cf. McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992) ("[t]o establish a prescriptive easement a party must prove that (1) the use of the easement was continuous and uninterrupted"). Although the law of RS 2477 rights of way suggests that "infrequent and sporadic" use is insufficient, Hamerly, 359 P.2d at 125, and that "regular" and "common" use by the public is necessary, Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266, 268 (1941), and that travel across the route may not be "merely occasional," the test is what is "substantial" under the circumstances, Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 210 (1945). Courts must look to the circumstances as they existed at the time of establishment.

  2. So. Utah Wilderness v. Bureau of Land Mgmt

    Nos. 04-4071 04-4073 (10th Cir. Jan. 6, 2006)

    In Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 414 (Alaska 1985), the Alaska Supreme Court recognized an R.S. 2477 right of way on the basis of the uncontradicted testimony of two witnesses that the route had been used by the public for beach access and for hauling freight into town. In Ball v. Stephens, 158 P.2d 207, 211 (Cal. Dist.Ct.App. 1945), the California District Court of Appeal recognized an R.S. 2477 claim along a route used originally by horse and wagon and later "almost daily" by motor vehicles. The court summed up the evidence as follows:

  3. So. Utah Wilderness v. Bureau of Land Mgmt

    425 F.3d 735 (10th Cir. 2005)   Cited 134 times
    Holding that parties seeking to enforce rights-of-way against the federal government, including R.S. 2477 rights, bear the burden of proving those claims. If there are any doubts, "they are resolved for the Government, not against it." (quoting Watt v. W. Nuclear, Inc., 462 U.S. 36, 59, 103 S.Ct. 2218, 76 L.Ed.2d 400 (1983))

    In Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 414 (Alaska 1985), the Alaska Supreme Court recognized an R.S. 2477 right of way on the basis of the uncontradicted testimony of two witnesses that the route had been used by the public for beach access and for hauling freight into town. In Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 211 (1945), the California District Court of Appeal recognized an R.S. 2477 claim along a route used originally by horse and wagon and later "almost daily" by motor vehicles. The court summed up the evidence as follows:

  4. State v. Alaska Land Title Association

    667 P.2d 714 (Alaska 1983)   Cited 18 times
    Holding that title insurer's policy was triggered because insurer was held to be on constructive notice of a public land order published in the Federal Register

    But other methods of acceptance were also recognized. As we stated in Hamerly v. Denton, 359 P.2d 121 (Alaska 1961) with respect to 43 U.S.C. § 932: See Clark v. Taylor, 9 Alaska 298, 303 (D.Alaska 1938); Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 209 (1945); Moulton v. Irish, 67 Mont. 504, 218 P. 1053, 1054 (1923). [B]efore a highway may be created, there must be either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept a grant, or there must be public user for such a period of time and under such conditions as to prove that the grant has been accepted.

  5. Western Aggregates, Inc. v. County of Yuba

    100 Cal.App.4th 259 (Cal. Ct. App. 2002)   Cited 172 times
    Concluding that members of the public were improperly arrested for trespass because the route was a public road based on historic state interpretation of dedication

    Although R.S. 2477 is an offer by the federal government, it could be accepted by the public, according to the applicable state law governing dedications. ( McRose v. Bottyer (1889) 81 Cal. 122, 126 ( McRose); Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 ( Ball); Streeter v. Stalnaker (1901) 61 Neb. 205 [85 N.W. 47, 48]; Lovelace v. Hightower (1946) 50 N.M. 50, 55-64 [168 P.2d 846, 867-875] ( Lovelace); Standage Ventures, Inc. v. State of Arizona (9th Cir. 1974) 499 F.2d 248, 250; see Bader, Potential Legal Standards for Resolving the R.S. 2477 Right of Way Crisis (1994) 11 Pace Envtl. L.Rev. 486, 491, 502-503 ( Bader); Annot., Necessity and Sufficiency of Acceptance of Grant of Right of Way over Public Land for Public Highway (1917) 1917A L.R.A. 355, 359.) The federal government has acknowledged as much in administering R.S. 2477.

  6. In re California Lumber Corporation

    227 F. Supp. 63 (S.D. Cal. 1964)   Cited 3 times

    Thus, where the causes of action are the same the first judgment is a complete bar as to law and fact, and as to all matters which were or could have been presented to the court in the first action. See, Williams v. Krumsiek, 131 Cal.App.2d 411, 280 P.2d 486 (1955), and Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207 (1945). And, where the causes of action are not precisely the same, the first judgment is res judicata as to all matters which were actually tried and determined therein.

  7. Scott v. City of Del Mar

    58 Cal.App.4th 1296 (Cal. Ct. App. 1997)   Cited 14 times

    As reenacted it read as follows: `In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges. . . ." ( Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 [ 158 P.2d 207].) Sidewalks were specifically included within the definition of streets ( Heath v. Manson (1905) 147 Cal. 694, 698 [ 82 P. 331]; Short Line Associates v. City and County of San Francisco (1978) 78 Cal.App.3d 50, 56 [ 143 Cal.Rptr. 921]), and as noted, streets and highways were used synonymously.

  8. Hays v. Vanek

    217 Cal.App.3d 271 (Cal. Ct. App. 1989)   Cited 28 times
    In Hays, the provision at issue "created an exemption from the act's requirements for `any subdivision of land which has been staked out and in which sales or contracts of sale have actually been made prior to the adoption of this act, or [for] any subdivision a map of which has been duly recorded under the provisions of any previous act....' (Stats.

    The statute was enacted to encourage and facilitate settlements through a continuing offer to dedicate public land as highways. (See Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 [ 158 P.2d 207]; Town of Red Bluff v. Walbridge (1911) 15 Cal.App. 770, 779 [ 116 P. 77].) Defendants then correctly point out that a public road need not be a part of a "system of highways" for purposes of imposing county responsibility for maintenance.

  9. Glass v. Gulf Oil Corp.

    12 Cal.App.3d 412 (Cal. Ct. App. 1970)   Cited 42 times
    Stating that “impairment of vendibility and cost of clearing title” constitute pecuniary damages in a slander of title action

    They are not attacked by defendants, nor is complaint made that the court omitted to give any instructions requested by them. From all that appears the jury was fully and fairly instructed with respect to the principles which the defendants now rely on as demonstrating that the evidence shows an intention to dedicate for public use and establishes an acceptance thereof, implied by law from long-continued public use. See Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240-241 and 243-244 [ 267 P.2d 10]; County of Inyo v. Given (1920) 183 Cal. 415, 418 [ 191 P. 688]; Smith v. San Luis Opisbo (1892) 95 Cal. 463, 466-467 and 470-471 [30 P. 591]; Brick v. Keim (1962) 208 Cal.App.2d 499, 501-504 [ 25 Cal.Rptr. 321]; People v. Sayig (1951) 101 Cal.App.2d 890, 896-897 [ 226 P.2d 702]; Ball v. Stephens (1945) 68 Cal.App.2d 843, 846-847 [ 158 P.2d 207]; Richardson v. O'Hanrahan (1927) 83 Cal.App. 415, 421 [ 256 P. 1103]; 39 C.J.S., Highways, § 5, pp. 923-924; and 2 Witkin, Summary of Cal. Law (1960) Real Property, §§ 28-29, pp. 884-885. The jury, by its answer to the first of the specific interrogatories, and by its selection of the form of verdict, specifically found that there had been no dedication for public use.

  10. DeMonbrun v. Sheet Metal Workers

    140 Cal.App.2d 546 (Cal. Ct. App. 1956)   Cited 17 times
    In De Monbrun v. Sheet Metal Workers Internat'l Ass'n. (1956), 140 Cal.App.2d 546, 295 P.2d 881, the California court held that the plaintiffs' actions for misappropriation and mismanagement of funds against a union officer could be pursued in state court despite their failure to exhaust internal remedies because the actions concerned protection of property rights.

    [1] "If a different title, right or obligation is pleaded in the second action, the cause of action is different, even though the relief sought is the same. ( Ball v. Stephens, 68 Cal.App.2d 843, 851 [ 158 P.2d 207].) But if the second is based upon the same right or obligation the cause of action is the same even though different or additional relief is sought.