for new trial the appellant must establish not only that there was not a substantial conflict, but that the court below, in granting the motion, was guilty of an abuse of discretion, neither of which he has done. (Breckenridge v. Crocker, 68 Cal. 403; Mullins v. Wieland, 68 Cal. 231; Pierce v. Schaden, 55 Cal. 406; Bronner v. Wetzlar, 55 Cal. 419; Blum v. Sunol, 63 Cal. 341; Bennett v. Hobro, 72 Cal. 178; Minturn v. Bliss, 77 Cal. 90; Sharp v. Hoffman, 79 Cal. 404; White V. Merrill, 82 Cal. 14; Buell v. Emerich, 85 Cal. 116; Domico v. Casassa, 101 Cal. 411; Cote v. Wilcox, 99 Cal. 549; Bjorman v. Fort Bragg etc. Co., 92 Cal. 500.)

THE COURT. This action was brought to recover damages for personal injuries received by plaintiff while in the employ of defendant. Plaintiff recovered a verdict, and the court granted a new trial. From this order plaintiff takes this appeal.

Plaintiff's foot was crushed by the falling of a pile of boards which he and his fellow-servants were storing in the cellar of the Mechanics' Pavilion.

The boards were passed down through a hatchway and put on a hand-truck and then taken to a place in the cellar, where plaintiff and a fellow-laborer lifted them from the truck and piled them. A pile which they had built up about five feet toppled over and injured plaintiff. The work is not inherently dangerous, and no one was directing in what mode the planks should be piled, nor how high. Naturally, therefore, the presumption would be that the accident occurred through the carelessness of the work

men.

Plaintiff contends that the defendant was negligent, because there were cleats upon some of the boards, of which the workmen were not informed, which cleats caused the pile to be unsteady and liable to fall. Also because the cellar was not sufficiently lighted.

If the cellar was sufficiently lighted plaintiff could have seen the cleats on the boards, and could also have seen if the pile was uneven or unsteady. The amount

of light in the cellar was, therefore, a very material question.

The trial court concluded that there was sufficient light in the cellar and that the accident occurred through the negligence of plaintiff and his fellow-servants, and it cannot be denied that there was evidence tending to support that view. But the jury was allowed to visit the cellar, and counsel contend that therefore they had evidence which is not and could not be in the statement on motion for a new trial.

The purpose of allowing the jury to visit the premises was to enable them to understand the evidence introduced on the trial. Upon such evidence we must presume their verdict was based. The fact that the jury was allowed to visit the premises cannot deprive the court of its jurisdiction to grant a new trial. This it should do notwithstanding a conflict in the evidence, if fully convinced that the verdict was wrong.

The refusal of the court to grant a nonsuit is of no moment. Had there been no additional testimony the court could change its ruling at any time during the trial. But there was further testimony in defense and in rebuttal.

If, as suggested by appellant, some of the instructions were erroneous, that fact might constitute an additional reason for granting a new trial, but it is no reason for setting aside an order awarding a new trial.

The order is affirmed.

[No. 15719. Department One.-April 27, 1895.] THE CITY OF EUREKA, RESPONDENT, v. LURA A. FAY ET AL., APPELLANTS.

DEDICATION OF STREET-UNAUTHORIZED MAP-FINDING AGAINST EVIDENCE. Where a survey and map of an addition to a city, showing public streets, included a tract of land owned by one who had no connection with, and did not authorize, the survey or map, and who protested against the map, and prevented the recording of it, a finding that he dedicated, or offered to dedicate, any part of a street designated thereon, and extending through his land, is against the evidence, notwithstanding the fact that in two conveyances of portions of his land he referred to the unrecorded map for a description of the lots conveyed, neither of which adjoined or referred to the street. ID. EFFECT OF REFERENCE TO MAP-EVIDENCE-INTENTION TO DEDICATE. The reference to the unrecorded map for the mere purpose of describing lots sold by the owner who had not authorized the map, while expressly repudiating it for all other purposes, and preventing the recordation thereof, has no tendency to prove that he intended to dedicate to the public any part of a street defined on such map, not adjacent to the lots sold, nor referred to in the description thereof. ID. ESTOPPEL-ACCEPTANCE OF STREETS BY ORDINANCE.-The acceptance by a general ordinance of all offers to dedicate streets not passed in reliance upon any representation by word or act of the owner of the land in question, and not referring nor applying to that land by description, cannot estop the owner from claiming his ownership of the land which he had not offered or intended to dedicate before the passage of the ordinance, merely because he had described lots by reference to an unrecorded map of which the city had no constructive notice at the date of the ordinance.

ID.-EVIDENCE-DEDICATION BY OWNER-CONVEYANCE BY ADMINISTRATOR-ACQUIESCENCE IN DEDICATION-PARTIES.-In an action by a city to recover a portion of land claimed to have been dedicated as a street, where the evidence shows that a portion of the land was dedicated as a street by the owner, and accepted by the city during his lifetime, proof is admissible of a deed by his administrator to a third party, and that such third party acquiesced in the dedication by his grantor, and had sold lots bounded by the street in question, and it is not a valid objection to such proof that the grantee and the heirs of the decedent were not parties to the action, the plaintiff not being bound to make all persons from whom it deraigned title parties defendant.

APPEAL from a judgment of the Superior Court of Humboldt County.

The facts are stated in the opinion.

J. E. H. Chamberlain, for Appellants.

The verdict is not supported by the evidence, as there is absolutely no evidence of a dedication of the land in question, or of any intention on the part of its owner to dedicate it, to public use as a street, and this intention is essential to a dedication. (Hogue v. City of Albina, 20 Or. 182; City of Eureka v. Croghan, 81 Cal. 524; Harding v. Jasper, 14 Cal. 643; People v. Reed, 81 Cal. 76; 15 Am. St. Rep. 22.) The claim that Raymond offered to dedicate this land to the city, because he made certain deeds of portions of his tract in which he referred to the map, is without merit, as the survey or map was never made by Raymond, who repudiated the map many times, and refused to allow Duff to record it, and the map was never recorded. (People v. Reed, supra; City of Eureka v. Croghan, supra; Whitworth v. Berry, 69 Miss. 882; Cerf v. Pfleging, 94 Cal. 131; In re Beach Avenue, 24 N. Y. Supp. 37; Phillips v. St. Clair etc. Co., 153 Pa. St. 230; Burrows v. Webster, 21 N. Y. Supp. 828.)

J. N. Gillett, for Respondent.

By the reference in Mr. Raymond's deed to the map showing the street in question he adopted the map, and his act in so doing amounted to a dedication of the land therein designated as a street. (City of Eureka v. Armstrong, 83 Cal. 623; Archer v. Salinas City, 93 Cal. 43; Kittle v. Pfeiffer, 22 Cal. 490; Lamar v. Clements, 49 Tex. 347; Giffen v. City of Olathe, 44 Kan. 342; 5 Am. & Eng. Ency. of Law.) The acts of Raymond were, at least, an offer to dedicate the land, and the ordinance of the city in relation thereto amounted to an acceptance of such dedication. (City of Eureka v. Armstrong, supra.) fact that the map was made by some other person than Raymond is immaterial. (City of Eureka v. Armstrong, supra; Ricks v. Lindsay (Cal., Oct. 29, 1892), 31 Pac. Rep. 262.)

The

VANCLIEF, C.-The plaintiff, a municipal corporation, brought this action to recover possession of a strip

of land alleged to be a portion of Sixth street in said city. The cause was tried by a jury, whose verdict was in favor of plaintiff, and judgment was rendered thereon. The defendants have appealed from the judgment.

The plaintiff claims title to the demanded premises by dedication, partly from Charles Raymond and partly from Richard Duff; while defendants claim the whole premises by conveyance from Charles Raymond; and the principal and controlling questions relate to the sufficiency of the alleged dedications.

1. In October, 1864, Raymond owned a lot of land adjoining the town of Eureka, containing about twelve acres, and on the twentieth day of that month conveyed to Charles Duff two distinct parcels thereof, and retaining a strip between these parcels of eighty feet in width; and on January 30, 1872, Charles Duff conveyed these two parcels to Richard Duff. Some time in 1873, while the two parcels and Raymond's strip where inclosed as one tract, Richard Duff procured the whole to be surveyed and divided into blocks and lots as an addition to the city of Eureka, and a map thereof to be made by R. F. Herrick, who, as a witness for plaintiff, testified as follows:

"By occupation I am a surveyor. [Map introduced in evidence shown witness, and he is asked if he ever saw it before.]

"A. Yes; I made that map in 1873. I made it at the instance of Richard Duff. It covers the Duff tract, a tract of land that Richard Duff owned at that time. It also covered land which was owned by Charles Ray. mond. I made a survey of the ground. I drove stakes for the most of it, locating the blocks, but I don't know whether I drove stakes for the lots or not; but I did drive stakes for the corners of the blocks. I think I drove stakes for the block marked on this map, as bounded on the north by Sixth street, on the east by A street, on the south by Seventh street, and on the west by California street. This California street, running through the center, represents a street in Clark's addi