posed that he was about to draw a pistol. J. O. Ryan was struck and kicked several times, and was very roughly handled. The appellant, after quite a fight with others of the party, finally got out of the schoolhouse, having freed himself from McCaffery, who was on his back, by rubbing against the casing of the door. When appellant got out of the house he went to his wagon, which stood a short distance away, and, getting a pistol from under the cushion, returned to the front of the house. At this time J. O. Ryan was outside of the house. Appellant testified that as he approached the house from the wagon a shot was fired from the house, and that his father told him that he was shot, and that George McCord had shot him, and for him (appellant) to shoot and "pop it" to George McCord. Several shots were then interchanged between appellant from the outside of the house and George McCord from the inside, or at the door. One of appellant's shots penetrated some part of the woodwork of the building, and killed McCaffery. One of George McCord's shots hit J. O. Ryan, making a wound which caused his death a day or two afterward. There is a great conflict of testimony as to whether the first shot was fired from the house by McCord, or at the house by appellant. George McCord testified that he heard shots before he got loose from Beckerlie; that he heard McCaffery say that he was shot before he went to the door; that he went to the door after three shots had been fired from the outside, and saw appellant raising his pistol to fire again; that he (George) after getting to the door fired his first shot at appellant; that he then saw J. O. Ryan with a pistol in his hand, and heard him telling appellant to fire; and that he (George) then fired at J. O. Ryan. Soon afterward appellant and J. O. Ryan went away. There is a conflict of evidence as to whether or not J. O. Ryan had a pistol at any time during the melee.

The foregoing is a mere skeleton statement of the affray; the filling up would be an immense quantity of conflicting testimony on many material points. An ex

amination of the mere cold, lifeless transcript tends to leave a doubt in the mind as to whether or not appellant was properly convicted, or whether, at the most, he was guilty of any crime higher than manslaughter. If, as he returned from the wagon, knowing how his father had been treated in the house, a shot was fired from the house, and he was told by his father that he was shot, he had reasonable grounds for believing that the life of his father and himself was in danger, and he had the right to defend either. If, however, when he returned from the wagon, the affray was over; if no shot was fired from the house until after he had himself shot; and if his father and himself could have walked away without further danger, and he shot out of revenge, then he was guilty. The determination of these questions depended upon a variety of absolutely contradictory evidence given by numerous witnesses; and, in such a case, the conclusions of the jury and of the judge who refused a new trial must be taken as final. They not only had better opportunities than we have to pass upon the credibility of witnesses and to weigh the evidence, but it is their exclusive province to do so, under the law, when there is a mass of evidence to both sides of an issue. We could not rightfully set aside a verdict merely on account of a doubt which we might have of its correctness; we could set it aside only when it clearly appeared to us to be wrong, and this we cannot say of the verdict in the case at bar.

Judgment and order affirmed.

GAROUTTE, J., HARRISON, J., TEMPLE, J., and VAN FLEET, J., concurred.

[No. 18436. Department Two.-August 27, 1895.] DOROTHEA SCHWERDTLE, APPELLANT, v. COUNTY OF PLACER ET AL., RESPONDENTS.

APPEAL OPINION-RECORD.-The opinion of the judge of the trial court forms no part of the record on appeal from the judgment. PUBLIC HIGHWAYS-PUBLIC DOMAIN-JUDICIAL NOTICE.-Courts will take judicial notice of section 2477 of the Revised Statutes of the United States, granting the right to lay out public highways over its lands, and of a state statute declaring all roads in use in a particular county public highways, and accepting them as such, but cannot take judicial notice that any particular land at a specified date was a part of the public domain. ID.-DEDICATION-ADVERSE USER.-In the absence of any statute the common-law rule as to the presumption of a dedication of land as a public highway by adverse user applies in this state.

ID. CONSENT AND ACQUIESCENCE OF OWNER.-Where a dedication is sought to be established by a use which has continued for a time not long enough to perfect the rights of the public under the rules of prescription, then the actual consent or acquiescence of the owner is essential, since without it no dedication could be proved and none would be presumed; but where this actual consent and acquiescence can be proved, then the length of time of the public use becomes nonessential, because the offer to dedicate and the acceptance by use, both being shown, the rights of the public have immediately vested. ID.-ADVERSE POSSESSION-PRESUMPTION OF CONSENT.-But where the claim of the public rests upon long-continued adverse use, that use for the period of time for the acquisition of title to land by adverse possession establishes against the owner the conclusive presumption of consent, and so of dedication. It affords the conclusive presumption of knowledge and acquiescence, and, at the same time, negatives the idea of a mere license.

ID. ERECTION OF GATES-PAYMENT OF TAXES.-The right of the public in a highway is not lost by the act of the owner of the land in placing gates across it, after asking permission so to do of a member of the board of supervisors, nor by the payment by him, for more than five years, of the taxes assessed on the entire tract of land through which the road ran.

APPEAL from a judgment of the Superior Court of Placer County. MATT. F. JOHNSON, Judge.

The facts are stated in the opinion of the court.

Isaac Joseph, and D. E. Alexander, for Appellant.

L. L. Chamberlain, F. P. Tuttle, and A. K. Robinson, for Respondents.

HENSHAW, J.-Appeal from the judgment alone. Action to quiet title to a strip of land, and to restrain defendant Glines from committing threatened acts of trespass upon the property. The land in dispute is claimed by the county as a public highway, and Glines is one of its road overseers. The defendant county pleaded "that for more than twenty years last past prior to the filing of the complaint that certain piece of road. . . . known as the 'Dotan's Bar and Carrolton road,' as it ran through and across the lands described in plaintiff's complaint, was and is now a public highway, known, recognized, and treated as such by the road officers of Placer county, and duly constituted such in the manner required by law." Upon this somewhat vague averment trial was had, and the court found: "That the plaintiff is the owner in fee, and, as such owner, was in the possession of said real property for more than five (5) years continuously prior to the commencement of this suit; that during said five years prior to the commencement of this suit, state and county taxes were regularly levied upon all of said real property, all taxes have been paid by plaintiff within said five years; and during all of said time said real property was and now is enclosed by substantial fences; that prior to the erection of said fences by plaintiff the country in the neighborhood of said real property was an open country, and that persons that traveled over it could travel in any direction, and cattle could roam over the entire country at will; that across said property there passes a road known as the Dotan's Bar and Carrolton road; that from the year 1850 down to about the year 1887 the said road was continuously open and notoriously used by the public in general, adversely to the plaintiff, without let or hindrance, as a public highway for all purposes, and was during all of said times entirely open and unobstructed; that in the year 1887 plaintiff asked permission of one of the members of the board of supervisors to place gates across the road at the inlet and outlet of the same, which said permission was granted by said member

without authority of the board; that thereafter, and for a period of about five years, the public in general continued to use said road openly and notoriously, and without let or hindrance, other than the opening and the closing of said gates; that the said road, from about the year 1855 to 1887, was the common traveled road in going from Sacramento and Folsom to Dotan's Bar; that in the early days stages carrying the United States mail constantly traveled said road, and at intervals during said time the road master of the road district in which said road is situated performed work and labor upon the same where the same crosses the property of plaintiff; that plaintiff and her grantors, for a period of about twenty years prior to the closing of said gates as hereinafter found, were in possession and occupancy of said land, and had full knowledge of the use of said road by the public as a highway for all purposes, and up to the time of the said closing of said gates offered no let or hindrance to the use of said road by the public as a highway and in no way, manner, or shape, or form objected to the same."

The court concluded, as matter of law, that the road was a public highway, and judgment passed accordingly.

The answer is objectionable in averring as a conclusion of law that the land in controversy is a public highway. No facts are pleaded, and it cannot be determined whether the defense rested its claim upon dedication and acceptance, or upon rights acquired by user under the rules of prescription.

From the opinion of the trial judge, embodied in the brief of respondents, it appears that he based his decision upon the facts that the land until the year 1870 was part of the public domain, and had been continuously used as a highway since 1850; that in 1866 the United States granted rights to lay out public highways over its lands (U. S. Rev. Stats., sec. 2477); that in 1870 the legislature of this state, by an act especially applicable to Placer county, accepted this right by declaring