tion Act, secs. 865, 874.) The action of the board in compelling bidders to bid for bonds vitiated the contract. (Nicholson Pavement Co. v. Painter, 35 Cal. 699; Brown v. Jenks, 98 Cal. 10; Excelsior Paving Co. v. Pierce (Cal., July 25, 1893), 33 Pac. Rep. 727; Partridge v. Lucas, 99 Cal. 519.) Municipal corporation can only exercise such powers as are expressly granted, and a contract in excess of such powers will be enjoined. (McCord v. Pike, 121 Ill. 288; 2 Am. St. Rep. 85; McCoy v. Briant, 53 Cal. 247; Springfield v. Edwards, 84 Ill. 627; Beach on Corporations, sec. 697; Sutro v. Pettit, 74 Cal. 337; 5 Am. St. Rep. 442; McBean v. San Bernardino, 96 Cal. 187; Shakespear v. Smith, 77 Cal. 638; 11 Am. St. Rep. 327; Spring Valley Water Works v. San Francisco, 82 Cal. 309; 16 Am. St. Rep. 116; Yarnell v. Los Angeles, 87 Cal. 603; Winn v. Shaw, 87 Cal. 631; Barry v. Goad, 89 Cal. 222; Walker v. Emerson, 89 Cal. 456.)

D. M. Connor, and Parker & Eells, for Respondents. The Municipal Indebtedness Act provides a complete scheme for bids for public improvements. (Stats. 1889, p. 399; Amended Stats. 1891, pp. 84, 132; Stats. 1893, p. 61.) The Municipal Indebtedness Act is a general law upon a subject within legislative power, and the proper steps to be taken thereunder are regulated by that act. (In re Wetmore, 99 Cal. 149.) An injunction is discretionary and will not be granted for slight damage, in comparison with great public benefits, where good faith and sound discretion has been exercised. (Wood v. Bangs, 1 Dak. 179, and numerous cases cited; Spelling on Extraordinary Relief, sec. 697; Kelly v. Mayor etc., 53 Md. 134; City of Logansport v. Uhl, 99 Ind. 539; 50 Am. Rep. 109.) Boards must exercise reasonable discretion, and courts will not interfere where no fraud or bad faith or serious injury is shown. of White Plains, 12 N. Y. Supp. 61; 61 Cal. 522; Kelly v. City of Chicago, 62 Ill. 279; Attorney General v. Detroit, 55 Mich. 184, 185; Madison v. Harbor Board, 76 Md. 395; Findley v. Pittsburgh, 82

(Moran v. Village Mulrein v. Kalloch,

Pa. St. 353; People v. Contracting Board, 33 N. Y. 382; Cleveland etc. Co. v. Board of Commrs., 55 Barb. 388; Brevoort v. Detroit, 24 Mich. 322.) Plaintiff having stood by and allowed the contract to be taken out and the contractor to expend money in good faith, it is too late to apply for an injunction. (Brown v. Merrick Co., 18 Neb. 356, 363, and cases cited; City of Logansport v. Uhl, supra; Bigelow v. Los Angeles, 85 Cal. 614.)

VAN FLEET, J.-By this action the plaintiffs sought to have canceled and annulled a certain contract entered into between said defendant board and the defendant McMullin for the construction of a sewer system for the town of Haywards, and an injunction to restrain the execution and carrying out of the provisions of said contract.

Judgment went for defendants denying the relief sought, from which, and an order refusing a new trial, the plaintiffs appeal.

1. The objection that the action of the defendant board in letting the contract is void as being in contravention of section 865 of "An act to provide for the organization, incorporation, and government of municipal corporations" (Stats. 1883, p. 93), is without force. That section, it is true, forbids the board of trustees of a city or town to "create, audit, allów, or permit to accrue any debt or liability in excess of the available money in the treasury that may be legally appropriated for such purposes"; but that section has no application to the facts of this case. Here the authorities of the town were providing for a public improvement, requiring an expenditure in excess of the amount allowed for such improvement by the annual tax levy of the town, and the proceedings of the board were taken under and in pursuance of the act commonly known as the "Municipal Indebtedness Act." (Stats. 1889, p. 309.) That act is a general act, and makes provision for just such contingencies as that confronting the authorities of the town of Haywards in this instance. Its purpose is declared in

the initial section which provides: "Any city, town, or municipal corporation, incorporated under the laws of this state, may, as hereinafter provided, incur indebtedness to pay the cost of any municipal improvement, or for any purpose whatever requiring an expenditure greater than the amount allowed for such improvement by the annual tax levy." The subsequent sections provide a method of procedure for accomplishing the purpose desired, with which the acts of the defendant board in this instance would seem to have been strictly in accord. And in the cases provided for therein the act is controlling. (In re Wetmore, 99 Cal. 149.)

2. Nor was there any such irregularity in the manner of letting or awarding the contract as to affect its validity.

The board was justified in rejecting, or refusing to consider, the two bids which it threw out. The findings, which are fully supported by the evidence, show that the one bid was put in by a town official, who could not lawfully take the contract; and the other was clearly a collusive and fraudulent bid. It was not requisite for the board, in making a record of its action on rejecting these bids, to also make an entry of their reasons for so doing, and the fact that the minutes of the board contained a statement of what purported to be their reason in the premises did not preclude the latter from showing at the trial what in fact occasioned their act. The action of the court, therefore, in admitting evidence as to that fact, was not erroneous.

Assuming, for the purposes of the argument, that the action of individual members of the board in directing the engineer to inform intending bidders that no bid for the work would be received unaccompanied by a bid for the purchase of the bonds, can be regarded, as is contended by appellants, as the act of the board; and that the same was unauthorized and improper, as tending to restrict bidding to those able to take or desirous of taking the bonds, it nevertheless does not appear that any injury was worked thereby. There is no evidence.

CVII. Cal.-26

that any one was deterred by that fact from bidding on the contract, or that any person would have bid without such condition who did not bid with it. Nor is there any evidence to show that the bids that were put in were any higher by reason of that supposed condition than they would have been without it. Under such circumstances, where no fraud or bad faith are shown, and no injury appears to have accrued from the irregularity complained of, it will not be regarded as sufficient ground for relief in equity. (Attorney General v. Detroit, 55 Mich, 181; Kelly v. Chicago, 62 Ill. 279.)

There are no other points demanding special notice. From a review of the entire record we are satisfied that there is no substantial ground for which the judgment or the order denying a new trial should be reversed.

This conclusion renders it unnecessary to pass upon the motion to dismiss the appeal.

The judgment and order appealed from are affirmed.

GAROUTTE, J., and MCFARLAND, J., concurred.

[No. 15742. Department One.-June 4, 1895.]

A. DEMARTINI ET AL., RESPONDENTS, v. CITY AND COUNTY OF SAN FRANCISCO ET

LANTS.

ET AL., APPEL

STREETS OPENING BY STREET SUPERINTENDENT INJUNCTION BY LOTOWNER EVIDENCE OF TITLE-POSSESSION-BURDEN OF PROOF.-In an action by a lot owner to enjoin the superintendent of streets from removing the improvements from his lot and opening it up for a public street it is not necessary that the plaintiff, in order to maintain the action. should establish title in fee, but it is only necessary to show actual possession of the lot at the time of bringing the suit, and such possession is presumptive evidence of title, and it is incumbent on the defendants to show a right to open up the street in order to defeat the action.

ID. FINDINGS-DEDICATION OF LAND FOR STREET-SUFFICIENCY OF EVIDENCE. Where the court finds that the street sought to be opened has never been more than a cul-de-sac, and never extended across the plaintiff's lot, no part of which had ever been dedicated, accepted, or used as a public street or highway, and the evidence tends to show that whatover user there was of plaintiff's lot by the public was a mere ufferance

or permissive use by the owners of the fee, and there is no evidence of unequivocal intent by the owners to dedicate the land to public use, the finding will not be disturbed upon appeal. ID.-EFFECT OF USER-INTENTION TO DEDICATE.-While user may be sufficient to show an acceptance by the public of an offer to dedicate, it is not sufficient of itself to establish dedication by the owner, except it appear clearly that such user was with the knowledge and consent of the owner, or without his objection, and under such circumstances as fairly to give rise to the presumption that the owner intended to dedicate to such use.

ID. OFFICIAL MAPS OF CITY-DESCRIPTION OF STREET.-The fact that the street in dispute appears to have been laid down upon the engineer's map and other official maps of the city, as a part of a street or alley, raises no conclusive presumption that the land has become a public street either by dedication or otherwise, where it appears that the land was not a part of one of the originally reserved streets, but came to private ownership under an alcalde grant, and that at and before the time when the maps were made and filed the premises were fenced, and have never been open to use as a street.

ID.-RIGHT TO TAKE PRIVATE LAND FOR PUBLIC STREET-DEDICATION. -Where land is held in private ownership the right to take it as a public street depends upon whether the land has been dedicated as such.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial.

The facts are stated in the opinion of the court.

City and County Attorney Harry T. Creswell, and A. Heynemann, for Appellants.

No one can acquire by adverse possession the right to obstruct a street. (Hoadley v. San Francisco, 50 Cal. 265; City of Visalia v. Jacob, 65 Cal. 434; 52 Am. Rep. 303; San Leandro v. Le Breton, 72 Cal. 170, 177; County of Yolo v. Barney, 79 Cal. 379; 12 Am. St. Rep. 152; Ex parte Taylor, 87 Cal. 91.) A dedication of the street is sufficiently shown. (Smith v. San Luis Obispo, 95 Cal. 463; People v. Eel River etc. R. R. Co., 98 Cal. 666; Hargro v. Hodgdon, 89 Cal. 624; People v. Hibernia Savings & Loan Soc., 84 Cal. 634; City of Eureka v. Armstrong, 83 Cal. 623; People v. Reed, 81 Cal. 77, 78; 15 Am. St. Rep. 22; People v. Pope, 53 Cal. 437; Hoadley v. San Francisco, supra; San Francisco v. Sullivan, 50 Cal. 603; City of Visalia v. Jacob, supra; Ex parte Taylor,