The opinion
CARTER, J.
I dissent.
The majority opinion in this case fails to give effect to the rule applicable to common law dedication of public thoroughfares in spite of the numerous authorities announcing it which are controlling here.
Let us look at the facts with regard to Barhart Road as found by the trial court (there is no question of the sufficiency of the evidence to support those findings). The court found: ‘The Oakland Municipal Airport was first established in the year 1927 upon approximately eight hundred (800) acres of land then constituting a part of the ‘Port Area’ of the *409 City of Oakland as defined by the Charter of the City of Oakland. The roadways [including Barhart Road] and buildings hereinafter described were and are all within said eight hundred (800) acres of land. Since the establishment of the Oakland Municipal Airport, the principal roadway within said, airport commenced at the intersection of Hegenberger Road, a public highway, with the northeasterly boundary of said airport and ran generally southwesterly into said airport and northwesterly past the principal buildings serving air travelers and then past various hangers and other buildings and installations erected thereon for the use of airlines, aircraft companies and other services related to aviation. Said road was extended northwesterly from time to time and always dead-ended within said airport property. In the year 1935 said road was designated ‘Barhart Road’ by resolution of the Board of Port Commissioners. In the year 1947, the Board of Port Commissioners by ordinance dedicated to public use as a public street or highway a road now known as Doolittle Drive which was laid ont as a state highway and runs generally parallel with Barhart Road in a northwesterly direction from said Hegenberger Road along and outside of the northeasterly boundary of said airport, and to the City of Alameda. Thereafter access roads were established between Barhart Road at and near its northwesterly end and said Doolittle Drive. Said connecting roads were opened at or about the time Doolittle Drive was laid out and dedicated as a public street. Said Barhart Road is the primary road serving said airport and the buildings and businesses located thereon. The International Terminal Building (used as a passenger station for non-scheduled airline passengers) fronts on the southwesterly side of Barhart Road and is situated approximately seven hundred eighty (780) feet southwesterly along Barhart Road from its commencement at Hegenberger Road. . . .
“Said Barhart Road . . . [was] paved and said Barhart Road widened by said Board of Port Commissioners and were at all times maintained by said Board. Said Board caused curbings to be erected along the edges of said roadways and delineated said roadways on maps and charts of the Oakland Municipal Airport kept on file in the office of the Chief Engineer of the Board of Port Commissioners. . . . Since the year 1927 the portion of Earhart Road hereinafter specifically described has been used generally by the public with *410 the knowledge of and without objection from the Board of Port Commissioners which at no time took any action to terminate such general use.” (Emphasis added.) Thus everything which is ever necessary to common law dedication has occurred. It would be difficult to conceive of a more plain case for the application of the principles of implied common law dedication, yet the majority opinion, while acknowledging the rule of such dedication, concludes that it did not occur because compliance was not had with sections 217 and 218 of the Oakland Charter. Those sections provide nothing more than that dedication for roads may be initiated by resolution of the Board of Port Commissioners and completed by the city council. Section 217 reads: “No franchise shall be granted, no property shall be acquired or sold, no street shall be opened, altered, closed or abandoned, and no sewer, street, or other public improvement shall be located or constructed in the ‘Port Area’ by the City of Oakland, or the Council thereof, without the approval of the Board.” Section 218 reads: “Whenever the Board shall determine that it is necessary to open, close, improve, alter or vacate a public street, or part of a public street within the ‘Port Area,’ a certified copy of the resolution so determining such necessity shall be filed by the Board in the office of the City Clerk, whereupon the City Manager and the City Council shall initiate and carry to completion the proceedings necessary to effect said proposal.” (Oakland City Charter, §§ 217, 218.)
First, looking at the law on implied dedication we find the following: A municipal corporation may make a common law dedication of its property for a street the same as private owners. It is said: “A municipality may itself dedicate property, unless specially restricted, as may the state. Likewise towns, and school authorities, have been held to have this power.” (McQuillin, Municipal Corporations (3d ed.), § 33.14.) (See 16 Am.Jur., Dedication, § 13; County of Yolo v. Barney, 79 Cal. 375 [ 21 P. 833 , 12 Am.St.Rep. 152 ].) Here there has been more than a mere offer to dedicate contrary to the intimation of the majority opinion. The dedication is an accomplished fact by reason of the various things found by the trial court. Nor is the part of the rule that a municipality may dedicate its property unless restricted by law, applicable, because the land is of a character which may be dedicated and section 218 is not such a restriction. It only provides one way in which a dedication may be made.
*411 The majority argues, however, that section 218 is the sole method by which there may be a dedication by the city. That section merely says that the Board of Port Commissioners shall determine by resolution when it is necessary to “open” a street and the city council proceeds from there on. There are several reasons why that section does not prevent the instant common law dedication. It does not purport to exclude such dedication and at most is merely one method by which it may be accomplished. It cannot be said to be a limitation on the power of a city to dedicate its property, as reasoned by the majority opinion, for the rule that a statute is the measure of the power of a local governmental agency does not apply to chartered cities. “ [B]y accepting the privilege of autonomous rule the city has all powers over municipal affairs, otherwise lawfully exercised, subject only to the clear and explicit limitations and restrictions contained in the charter. The charter operates not as a grant of power, but as an instrument of limitation and restriction- on the exercise of power over all municipal affairs which the city is assumed to possess; and the enumeration of powers does not constitute an exclusion or limitation. .(West Coast Advertising Co. v. San Francisco, 14 Cal.2d 516, 521-522, 525 [ 95 P.2d 138 ] and cases cited. ... As recognized in the West Coast Advertising case, the levy of taxes for city purposes is a municipal affair; the collection, treatment and disposal of city sewage and the making of contracts therefor are likewise municipal affairs (Loop Lumber Co. v. Tan Loben Sels, 173 Cal. 228, 232 [ 159 P. 600 ]), and neither may be held to be circumscribed except as expressly limited by the charter provisions. All rules of statutory construction as applied to charter provisions . . . are subordinate to this controlling principle. The former guide—that municipalities have only the powers conferred and those necessarily incident thereto. ... A construction in favor of the exercise of the power and against the existence of any limitation or restriction thereon which is not expressly stated in the charter is clearly indicated. So guided, reason dictates that the full exercise of the power is permitted except as clearly and explicitly curtailed. Thus in construing the city’s charter a restriction on the exercise of municipal power may not be implied.” (Emphasis added; City of Grass Talley v. Walkinshaw, 34 Cal.2d 595, 598-599 [ 212 P.2d 894 ].) Thus in the instant case sections 217 and 2.18 do not clearly or explicitly prohibit the city from making *412 a common law dedication of streets. They deal only with the distribution of powers as between the Board of Port Commissioners and the city council. The board must approve before the council may establish a street. The board may express its approval by resolution but that is only the formal way of expressing it; it does not exclude the informal method embodied in common law dedication which may occur when the requisite conduct on the part of the city occurs as is found here and such dedication may result when the formal proceedings for dedication are defective. As said in People v. County of Marin, 103 Cal. 223, 229 [ 37 P. 203 , 26 L.R.A. 659 ]: “That the general public used the road as a public highway is established by the evidence beyond reasonable doubt. It is said that all of this testimony fails to establish a statutory dedication of the highway. This may be conceded, but ‘in many instances a dedication invalid as a statutory one will be a good common-law dedication.’ (Elliott on Roads and Streets, 85, 86.)” (Emphasis added.) And it is said: “An incomplete or defective statutory dedication or an ineffectual attempt to make a statutory dedication will, when accepted by the public or when rights are acquired under it by third persons, operate as a common-law dedication.” (16 Am.Jur., Dedication, § 52.) This is further established by the many cases that hold that although an acceptance of the street by the municipality or other government agency is necessary to complete a dedication, yet this may be shown by conduct by the agency such as was found in this case even though the statutory procedure for acceptance was not followed. (People v. County of Marin, supra, 103 Cal. 223 ; McGinn v. State Board of Harbor Comrs., 113 Cal.App. 695, 703-704 [ 299 P. 100 ]; Fitzgerald v. Smith, 94 Cal.App. 480 [ 271 P. 507 ]; County of Sacramento v. Lauszus, 70 Cal.App. 2d 639 [ 161 P.2d 460 ]; Richardson v. O’Hanrahan, 83 Cal.App. 415 [ 256 P. 1103 ]; San Francisco Sulphur Co. v. County of Contra Costa, 207 Cal. 1, 6 [ 276 P. 570 ]; St. John v. King, 130 Cal.App. 356 [ 20 P.2d 123 ].) It is said in the Marin County case, supra, where the county board of supervisors declared a road to be a public one: “ [A]lthough the proceeding was not accompanied by all the forms required by the statute to constitute it a highway in a statutory sense, still it was evidence of a/n acceptance by the board for the public as such highway, which evidence, coupled with its uses for a highway, and its improvement as such by public authority, is ample to support an acceptance.” (Emphasis added; *413 People v. County of Marin, supra, 103 Cal. 223, 230 .) In San Francisco Sulphur Co. v. County of Contra Costa, supra, 207 Cal. 1, 5 , a subdivision map showing streets was recorded by the owner of the property but was not formally accepted by the city, yet the court held that merely ordering improvement work done was sufficient implied acceptance to constitute a dedication, stating: “We next pass to the contention that the improvements were made upon property not in fact public thoroughfares because not dedicated to the public use. We have no hesitancy whatever in holding that under the allegations of said complaint appellant is in no position to attack the sufficiency of the evidence to sustain the action of the board of supervisors in improving these thoroughfares as public streets. The contention of appellant is that as to some of the subdivisions described in the district, the recorded maps of such subdivisions which named streets and thoroughfares were not accepted by the board of supervisors, but, on the contrary, acceptance had been denied, and that as to others thereof accepted, the acceptance though granted was not indorsed upon the maps. It is plain that the making and recordation of these maps was an offer of dedication to the public of these spaces as thoroughfares and public streets. It is also clear from the complaint that no withdrawal of said offer of dedication has ever been made. The mere ordering of the work ‘done’ and the completion thereof by the board of supervisors is, therefore, an implied acceptance of the offer of dedication. Neither party could thereafter successfully contend that the thoroughfares were anything other than public streets. While it is true that the statutory proceedings for express dedication were not literally complied with, ample appears to show that an implied acceptance of dedication offer was made by the board. (Wolfskill v. County of Los Angeles, 86 Cal. 405 [ 24 P. 1094 ]; People v. County of Marin, 103 Cal. 223, 227 [ 26 L.R.A. 659 , 37 P. 203 ]; Davidow v. Griswold, 23 Cal.App. 188 [ 137 P. 619 ].)” (Emphasis added.) In connection with the cases above quoted from, it should be noted that according to the findings here the board passed a resolution giving Earhart Road its name. Certainly that is substantial compliance with sections 217 and 218 of the charter or at least sufficient to show a common law offer and acceptance of a dedication under the rule stated in the Marin County and San Francisco cases. While words of art, such as that the street is hereby' established, were not *414 used, the resolution shows unquestioned approval by the board of Earhart as a public road.
To reach the conclusion arrived at by the majority, the above cited cases must be overruled. They cannot be distinguished.
The rule for which the majority stands may have more serious effects than are present here. Suppose all the things done by the city here are done on a strip of land owned by the city and in reliance thereon millions of dollars of improvements are erected fronting on it. It would seem inconceivable that this court would hold there was no dedication, would permit the city to erect barriers across the street and stop the flow of traffic thereon rendering valueless the investments in the improvements.
I would affirm the judgment.