contractor retained in order to meet claims against the contractor would be quite impracticable. The act provides no machinery by which the amount to be retained from the payment by the property owner can be ascertained or he be notified of the amount he is to retain.

[4] The result so arrived at is not affected by the provisions of section 1184 of the Code of Civil Procedure. That section, as amended in 1911, provides for the giving of notice by any person who has performed labor or furnished materials under a contract, and then continues as follows: "Upon such notice being given it shall be lawful for the owner to withhold, and in the case of property which, for reasons of public policy or otherwise, is not subject to the liens in this chapter provided for, the owner or person who contracted with the contractor, shall withhold. from his contractor sufficient money due or that may become due to such contractor to answer such claim and any lien that may be filed therefor including the reasonable cost of any litigation thereunder." This provision is clearly applicable only to cases where the contractor is to be paid either by the owner of the property upon which the work is done, or by the person, public or private, by whom the contract was made. It cannot be applied where payment is not to be made in that manner, but is to be made by a number of different persons not parties to the contract, each of whom pays independently his separate share of the amount due.

Right here also lies the difference between the present case and the line of authorities cited by appellant's counsel, beginning with Prairie State Nat. Bank v. United States, 164 U. S. 227, [41 L. Ed. 412, 17 Sup. Ct. Rep. 142]. In those decisions the facts are essentially the same as in this, with the exception that either by statute or by the contract itself, a fund was in effect reserved for the benefit of materialmen and laborers whom the contractor might fail to pay. In other words, the materialmen and laborers had a right as against a certain fund in addition to any recovery against the contractor or his surety. Under such circumstances if the surety paid their claims he would be subrogated to their rights against such fund. Such, however, is not the case here, as there is no fund against which the materialmen and laborers have a right.

The second point made by the appellant is that by virtue of the provision heretofore quoted of the application contract executed by Paonessa, he assigned to the appellant his right to the bonds subsequently to become due him under the contract and that this assignment, being prior in time to the assignment by Paonessa to Lloyd, is prior in right.

[5] Passing for the time being the question as to the sufficiency of the contract provision as an assignment by Paonessa, it does not follow that because it is prior in time it is necessarily prior in right to the subsequent assignment to Lloyd. The Surety Company neglected to give immediate notice of the assignment to it, and before it gave such notice Lloyd had taken an assignment for a valuable consideration without notice or knowledge of the prior assignment and had given notice of his own assignment. The rule in such a case is well established. It is thus stated in Widenmann v. Weniger, 164 Cal. 667, 672, [130 Pac. 421, 424]: "The effect of such successive assignments and the rights of the successive assignees without notice, with respect to each other, were considered and decided in Graham Paper Co. v. Pembroke, 124 Cal. 117, [71 Am. St. Rep. 26, 44 L. R. A. 632, 56 Pac. 627]. There is some conflict of authority on the subject but this court approved and followed the English rule stated as follows: [6] 'As between successive assignees of a chose in action, he will have the preference who first gives notice to the debtor, even if he be a subsequent assignee, provided at the time of taking it he had no notice of a prior assignment.'"'

The judgment of the lower court, therefore, in directing the delivery of the bonds to Lloyd was correct and to that extent is affirmed.

The judgment of the lower court, however, goes further than this. The court found, and its judgment decrees, that the Surety Company has no right or interest in the bonds. The evidence at the trial showed without conflict that Lloyd took his assignment by way of security for advances. It follows that as between himself and Paonessa he was not the absolute owner of the bonds. Paonessa still had an interest in them. [7] If, then, the application contract executed by Paonessa did in fact amount to an assignment by him to the Surety Company, the latter stood in the former's shoes and had and still has an interest in the bonds, and the finding of the court to the contrary is not supported by the evidence. This brings

us to the question of the sufficiency of the application contract as an assignment by Paonessa to the Surety Company. If it amounts to an assignment, the finding that the Surety Company has no interest in the bonds is contrary to the evidence and the decree of the court to the same effect is in that particular incorrect.

Considering this question, certain it is that as applied to these bonds the language of the application contract is exceedingly inapt. The subject matter of the purported assignment is described as "all payments specified in the abovementioned contract to be withheld by the obligee until completion of the work." But, as we have seen, there are no payments to be withheld. The provision in question is one very evidently intended for cases of contracts containing the ordinary provisions for the retention of a part of the contractor's compensation to answer for claims against him. Such is not this case. Nevertheless, the language must be construed with reference to the particular facts of the particular case, and if the intention of the parties is fairly evident and they have actually given expression to it, no matter how inapt that expression may be, effect must be given to their intention. Furthermore, the language must be construed as if the question were one between the Surety Company and Paonessa, and between them solely. [8] Looking at the matter from this point of view we believe that as between Paonessa and the Surety Company the language in question, inapt though it is, would be sufficient to entitle the latter to claim and receive the bonds in dispute as against the former. It is fairly evident that it was the intention of the parties that the Surety Company in order to secure it against its liability on the contractor's bond should have the right to receive on the completion of the contract any payments that might be coming to him. The designation of such payments as "payments to be withheld by the obligee until the completion of the work" seems to us to be rather a case of imperfect description than one where the parties have actually failed to give expression to their intention, so that it is beyond the power of the court to give effect to it by construction. It follows that the Surety Company did have an interest in the bonds to be delivered to and held by Lloyd and that the finding and decree of the lower court to the contrary are not in this respect correct.

While there is no conflict in the evidence bearing on the point under immediate discussion and the facts establishing the rights of the parties appear clearly and without dispute, yet there is no finding in accordance with the evidence upon. which this court can direct a modification of the decree in this respect. A further hearing upon this point is neccssary in order that such finding be made.

The judgment of the lower court is therefore modified by striking out the portion which decrees that the appellant has no right or interest in the bonds, and a new trial is ordered on the single issue as to whether or not as between himself and the Surety Company the respondent Lloyd holds the bonds as absolute owner or by way of security merely.

Both prior to the commencement of the litigation and at the time of the trial respondent Lloyd offered to account to the Surety Company for any balance which he might receive from the bonds after the satisfaction of his own advances. This was all that the Surety Company was entitled to. Accordingly, although the judgment is reversed in part and a new trial is directed as to one of the issues, it is ordered that appellant pay the costs of appeal.

Olney, J., and Shaw, J., concurred.

Hearing in Bank denied.

All the Justices concurred.

[L. A. No. 4716. Department Two.-March 19, 1919.] CITY OF SAN DIEGO (a Municipal Corporation), Appellant, v. M. HALL et al., Respondents.

[1] APPEAL

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JUDGMENT SUBSTANTIAL CONFLICT IN TESTIMONY.-A judgment will not be disturbed on appeal where there is a substantial conflict in the testimony.

[2] EASEMENT - PUBLIC HIGHWAY ACROSS CITY BLOCK USER-INSUFFICIENCY OF EVIDENCE.-In an action by a city to quiet its title across a block of land on the theory that a public highway had been acquired by user, a judgment in favor of the defendants is sup

ported where there was a failure to show that there was a user of any definitely delimited portion of the block continuously and adversely for five years with the knowledge of the owners or by their consent, direct or implied.

[3] ID. IMPLIED DEDICATION-EVIDENCE-Something more than a mere casual user must be shown before any valid dedication will be implied.

[4] ID. UNINCLOSED AND UNCULTIVATED LAND USER BY PUBLIC LICENSE. In order to constitute a valid dedication, there must be an intention on the part of the owner to devote his property to the public use, and while it is true that this intent may be inferred from long acquiescence in a use by the public, yet where land is uninclosed and uncultivated, the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on the part of the owner, rather than to his intent to dedicate.

APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge. Affirmed.

The facts are stated in the opinion of the court.

T. B. Cosgrove, City Attorney, S. J. Higgins and M. R. Thorp, Deputy City Attorneys, for Appellant.

Sam Ferry Smith for Respondents.

MELVIN, J.-This action was brought by the city of San Diego to quiet its title across block No. 404 of Horton's Addition. It was stipulated that the fee belongs to the defendants, but the city took the position that by use of this property for many years the public had obtained an easement for the extension of Horton Avenue, a street seventy-five feet in width. Judgment was given in favor of the defendants and the city appeals.

The map accompanying the record indicates that block No. 404 was one of the subdivisions of an addition placed upon the market some years ago. It is bounded upon all sides by dedicated streets. Horton Avenue leads into Upas Street, which bounds block No. 404 on its southerly side. The theory of the plaintiff is that Horton Avenue was used by residents in that part of the city, and by the public generally, and that with the knowledge of the owners of the aforesaid block that