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all roads in that county which had been used as public highways for two years or more before the passage of the act to be public highways (Stats. 1870); that this act operating with the statute of the United States amounted to an acceptance of the grant or offer of dedication of the latter, and established the status of the land in controversy, then public land, as a highway, so that when it passed into private ownership it was taken subject to the easement.

Under the facts above recited the reasoning and conclusion of the court are perfectly sound. (McRose v. Bottyer, 81 Cal. 125.) The difficulty in adopting them is that we have not the same facts before us. They are not set forth in the findings, and the opinion of the learned judge forms no part of the record. We take judicial notice of the statutes above adverted to, but cannot judicially know, and the findings do not disclose, that the land in controversy was a part of the public domain until 1870.

It is, however found that the public, from the year 1850 to the year 1887, used the road openly, notoriously, and continuously, and adversely to plaintiff.

In the absence of any statute the common-law rule as to the presumption of dedication by adverse user will apply in this state. (Pol. Code, sec. 4468.) The time of user at common law was not a fixed period. Five years, six years, and twenty years, depending on the varying circumstances, have been severally held sufficient. (Elliott on Roads, 124.) "A dedication may be made by deed or other overt act, or may be presumed from the lapse of time or acquiescence of the party. There is no precise limit of time from which dedication may be presumed. In some cases it has been decided that twenty years were necessary to raise the presumption of dedication, while in others it has been held that a much shorter period was sufficient." (San Francisco v. Scott, 4 Cal. 114.)

The language of Hope v. Barnett, 78 Cal. 9, cannot be construed as conflicting with this universally accepted

rule of the common law. This court there says: "Where the dedication is sought to be established by user as a highway, it must appear that such user was with the knowledge of the owner, with his consent or without objection on his part." In that case the findings showed a use for only eighteen months or two years. If a dedication is sought to be established by a use which has continued a short time-not long enough to perfect the rights of the public under the rules of prescriptionthen truly the actual consent or acquiescence of the owner is an essential matter, 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 ceases to be of any importance, because the offer to dedicate, and the acceptance by use, both being shown, the rights of the public have immediately vested.

But where the claim of the public rests upon longcontinued adverse use, that use establishes against the owner the conclusive presumption of consent, and so of dedication. It affords the conclusive and indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license.

Indeed, some of the courts have insisted that the rule is broader even than as above stated, while no court or text-writer has confined it to narrower limits. Thus, in New York, under a statute declaring that all roads which have been used as public highways for twenty years or more shall be deemed public highways (N. Y. Rev. Stats., sec. 100, p. 521), it has been held that the intention of the owner is not material, and that such a user makes it a public highway, though the owner be a lunatic, an infant, or married woman, and has no knowledge thereof during the entire time. (Devenpeck v. Lambert, 44 Barb. 599.) And the soundness of this view of the law is not only stoutly supported by the authors of Elliott on Roads and Streets, pages 123, et seq., but has received some approval from this court in the case of

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Bolger v. Foss, 65 Cal. 250, and Freshour v. Hihn, 99 Cal. 443.

These cases, however, were decided, the first under section 2619 of the Political Code, since repealed, and the second under a statute exclusively applicable to Santa Cruz county. Their law is not pertinent to this case, nor do we by this affirm the rule there laid down. It is sufficient here to emphasize the fact that no declaration in Hope v. Barnett, supra, was meant, or can properly be construed to declare a different rule from the one which is above set forth, and which finds abundant, and indeed universal, recognition from the authorities.

Thus: "If the user is permissive or by license, it will not ripen into a prescription." (Washburn on Easements, 4th ed., sec. 5, p. 197.)

In Beall v. Close, 6 Bush, 680, the court say: "The use of a way by the public for twenty years gives a prescriptive right of a public as well as a similar user does of a private way, and this right, when once established, continues until it is clearly and unmistakably abandoned. And if the only evidence of a dedication be a public user, with the acquiescence of the owner, a user of the term of twenty years must be proved, or a time corresponding to the period of limitations in the state in which the land lies."

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In Commonwealth v. Coupe, 128 Mass. 63, it is said: "Ways by prescription and ways by dedication rest upon entirely different principles. The first is established upon evidence of user by the public, adverse and continuous, for a period of twenty years or more, from which use arises a presumption of a reservation or grant and the acceptance thereof." (Jennings v. Tisbury, 5 Gray, 73.)

And: "Such intent [to dedicate] will be presumed against the owner where it appears that the easement in the street or property has been used and enjoyed by the public for a period corresponding with the statutory limitation of real actions. But where there is no other evi

dence against the owner to support the dedication but the mere fact of such user, so that the right claimed by the public is purely prescriptive, it is essential to maintain it that the user or enjoyment should be adverse." (Dillon on Municipal Corporations, 4th ed., sec. 637, p. 753.)

Says Thompson (Thompson on Highways, 48): "Where the acts of the owner are not so specific in their nature as clearly to prove his intention that the public should acquire a right of way, they are frequently aided by collateral evidence, and the circumstance of most common occurrence which is considered sufficient to support the claim of the public is the length of time during which they have had the uninterrupted use and enjoyment of the privilege."

"What the original intention of the owner was ceases to be of importance after the lapse of the limitation prescribed by the statute. Twenty years' use by the public, under claim of right evidenced by use, will give a right to the road or street, . . . no matter what may have been the owner's intention." (Elliott on Roads and Streets, 123.)

And Angell (Angell on Highways, sec. 131) quotes the language of Shaw, C. J., in Reed v. Northfield, 13 Pick. 94: "We think it clear upon principle that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption that they were at some anterior period laid out and established by competent authority."

Says Kent (3 Kent's Commentaries, *451): "If there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence in the free use and enjoyment of the way as a public road, the period of twenty years applied to incorporeal rights would be required as being the usual and analogous period of limitation."

In this enunciation of the rule, framed with his wonted wisdom and conservatism, the learned chancellor was dealing with the common-law period for the acquire

ment of prescriptive rights. Under our law the statute of limitations for the commencement of actions affecting title to realty, and the period of time for the acquisition of title thereto by adverse possession, or of acquiring a prescriptive right to an easement, has been shortened to five years, which period would, by analogy, be made the time requisite for the acquirement by the public of such right.

The conclusive presumption of dedication arising from long-continued adverse user is distinctly declared in Huffman v. Hall, 102 Cal. 26.

The rule thus being that the adverse user conclusively establishes the presumption of dedication to the public

as in the case of the individual the prescriptive right establishes the presumption of a grant-the finding of such adverse user for over thirty years is more than sufficient for this purpose, unless, as contended, the other findings are contradictory, or show an abandonment. (Pol. Code, secs. 2619, 2631; Civ. Code, sec. 806; McRose v. Bottyer, supra.)

The finding in this case differs from that discussed in Cooper v. Monterey County, 104 Cal. 438. Here the adverse user is expressly set out. There, as was said, the language of the finding did not negative the idea that the use might have been under mere license.

The placing of the gates in 1887 was rather an acknowledgment than a denial of the public right, since permission to erect them was first asked of a member of the board of supervisors.

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The payment of taxes was upon the whole tract, which included the strip in dispute, and is thus within rule of Smith v. San Luis Obispo, 95 Cal. 463. also, San Leandro v. Le Breton, 72 Cal. 170, 177.) The judgment is therefore affirmed.

TEMPLE, J., and MCFARLAND, J., concurred.

Hearing in Bank denied.

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