STREETS, ROADS, AND HIGHWAYS (Continued).

17. 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.

18. 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.

19. 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 had been dedicated as such.-Id.

SUBROGATION.

1. FORECLOSURE OF MORTGAGE INEFFECTUAL SALE-SUBROGATION OF PURCHASER-ALLOWANCE OF INTEREST-CONSTRUCTION OF JUDGMENT UPON APPEAL.-Where, upon a former appeal, it was decided that the purchaser under an ineffectual foreclosure of mortgages, who, by purchasing, had paid off the mortgages, was entitled in equity to be subrogated to the rights of the mortgagees, and to receive all that was equitably due on the mortgage, including interest upon the amount up to the date of payment or tender by the successor in interest of the mortgagor who was not made a party to the foreclosure suit, such allowance of interest by the decision of the court is at the legal rate, and not at the rate specified in the mortgage.-Randall v. Duff, 33.

2. OBJECT OF SUBROGATION-SPECULATION NOT ALLOWED.-Subrogation is allowed by courts of equity to secure justice, and, when justice requires, it is allowed merely to insure reimbursement, where one has paid a debt which some one else ought to have paid, and the party to whom a subrogation is allowed will not be permitted to make a speculation out of it, but a resort to the securities will only be allowed so far as necessary to protect the purchaser, and indemnity should not go beyond his reimbursement with legal interest.-Id.

See MORTGAGE, 19.

SUMMONS. See JUDGMENT, 3-7; JUSTICE'S COURT.

SURETIES. See APPEAL, 1, 2.

ΤΑΧΑΤΙΟΝ.

1. TAX SALE-SERVICE OF NOTICE TO REDEEM-INSUFFICIENT AFFIDAVIT-INVALID DEED.-Under section 3785 of the Political Code, as it stood in February, 1891, the affidavit of service of a notice to redeem property from a tax sale showing that it was served by posting

TAXATION (Continued).

the notice upon the property, but not stating that the premises were vacant and unoccupied at the time of the posting of the notice, is insufficient, and does not authorize the execution of a tax deed for the property.-Hall v. Capps, 513.

2. AUTHORITY OF TAX COLLECTOR.-The power of the tax collector to issue a tax deed comes not alone from the existence of the facts, but from the proof of their existence made in the manner specified in the statute, and the mode becomes the measure of his power, and he has no authority to issue a deed until supplied by affidavit with the proof of notice given as the statute provides.-Id.

3. SERVICE OF NOTICE BY POSTING-EXCEPTION TO RULE.-Service of notice by posting upon the premises constitutes an exception to the rule of the statute requiring personal notice, and he who would avail himself thereof must establish by proof the facts bringing the case within the exception.-Id.

4. RECITAL IN DEED-PRIMA FACIE EVIDENCE-REBUTTAL.-The recital in a tax deed that the purchaser at the tax sale had filed an affidavit showing that the property was unoccupied is prima facie evidence of the facts stated therein; but the presumption arising therefrom may be rebutted by the affidavit itself not showing that the premises were unoccupied.-Id.

See ADVERSE POSSESSION, 2; CONSTITUTIONAL LAW; MORTGAGE, 8; SCHOOLS, 6.

TELEGRAPH COMPANY.

1. STIPULATION AGAINST LIABILITY-GROSS NEGLIGENCE-BURDEN OF PROOF.--A telegraph company may reasonably stipulate upon its message blanks that it will not be liable to the sender of an unrepeated message for mistake or delay beyond the amount received for sending the same, unless it is guilty of willful misconduct or gross negligence; and the burden of proving willful misconduct or gross negligence on the part of the telegraph company devolves upon the sender of the telegram, and is not in the face of the stipulation to be presumed from the mere fact of a mistake, but must be proven by independent facts, or by circumstances connected with the prin cipal fact, and warranting the conclusion of willful misconduct or gross negligence.-Redington v. Postal Telegraph Cable Co., 317. 2. DEFINITION OF GROSS NEGLIGENCE.-Gross negligence is the want of slight care or diligence, and is either an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was indifference as to the interest and welfare of others.-Id.

3. NEGLIGENCE WHEN A QUESTION FOR JURY-NONSUIT.-The question of negligence is a mixed question of law and fact; and where there is room for difference of opinion between reasonable men as to the existence of facts from which negligence may be inferred, or room for difference as to the inference which might be drawn from facts, the question of negligence is for the jury, and the court in such case does not err in denying a motion for nonsuit.-Id. 4. ATTACHMENT BY TELEGRAPH-DAMAGES FOR UNREPEATED TELEGRAM-SUPPORT OF VERDICT.-Where an attachment for the sum of $1,903 was sent by telegraph, and the telegram was negligently made to read $903, and as the result of the error the sender of the message was damaged in the amount of the attachment levy, a ver

TELEGRAPH COMPANY (Continued).

dict and judgment for damages in the amount lost by the error will not be reversed where there is sufficient evidence to show a prima facie case of gross negligence, notwithstanding a conflict in the evidence and a doubt from the defendant's evidence as to the correctness of the finding; and notwithstanding a stipulation limiting the liability of the defendant to the amount received for sending an unrepeated message.-Id.

5. EVIDENCE-MONTHLY RECEIPTS AND EXPENSES OF TELEGRAPH OFFICE. Where a telegraph office was permitted to show that the office to which the message was sent was classed as a third-class office, and the number of dispatches sent and received per day was testified to by the operator, it is not error for the court to refuse to admit in evidence a writing showing the monthly receipts and expenditures of the office, and not showing the amounts collected upon the individual messages received and sent.-Id.

TENANTS IN COMMON. See HOMESTEAD, 1.

TENDER. See LANDLORd and Tenant, 13, 15.

TRUST.

1. CONSTRUCTION OF WILL-POWER OF SALE.-Where a testator devised all his property to his wife in trust for his children, and, without appointing any executor, in direct terms provided that if a majority of his executors deem it desirable to sell part of the unproductive estate granted by the will before the final distribution of the same, the proceeds were to be divided among the surviving heirs, the power of sale of the unproductive estate must be considered as given to the widow as trustee, and not as executrix, during her life and ability to act.-Morffew v. San Francisco and San Rafael R. R. Co., 587.

2. ESTATES OF DECEASED PERSONS-EFFECT OF DISTRIBUTION TO TRUSTEE-PROBATE JURISDICTION-The lands distributed after administration into the hands of the widow, as trustee under the will, ceased to be a part of the estate in the course of administration; and, prior to the enactment of sections 1699 to 1703 of the Code of Civil Procedure, the probate court, and its successor the superior court, in the exercise of probate jurisdiction, had no further control of the same; and the cicumstance that at a future time there was to be a division of the property among the beneficiaries of the trust did not affect the rule; and the only power to regulate and direct the administration of the trust lay with the court possessed of general equity jurisdiction.-Id.

3. POWER OF SALE BY TRUSTEE-CONFIRMATION BY COURT.-After the decree of distribution to the widow as trustee no confirmation of a sale under the power held by her as trustee was required or authorized by law.-Id.

4. ESTATE OF TRUSTEE.-The trustee takes an estate adequate to the execution of the trust, no more and no less.-Id.

5. DISCRETIONARY POWER OF SALE-ENLARGEMENT OF LIFE ESTATE— NAKED POWER TO SELL REMAINDER.-Where there is no trust for the purpose of sale and the power of sal、 of the unproductive lands is by the terms of the will left discretionary, a life estate, vested in the trustee as an individual, is not enlarged to a fee by the power

TRUST (Continued).

of sale, and the power of sale granted to the trustee to sell the remainder after the termination of her life estate is a mere naked power to sell such estate, not coupled with any interest in the fee.-Id.

6. EXECUTION OF POWER-CONVEYANCE IN NAME OF DONEE.—Where the donee of a power owns an interest in the land granted the fact that the conveyance is made only in the individual name of the donee and makes no reference to the power is not conclusive against the execution of the power; but, where it appears, in view of the circumstances under which the deed was made, including the situation of the subject of the instrument, that the intent of the donee of the power was to transfer the whole estate, and to exercise the power necessary for that purpose, the instrument will be held to work both by the interest and by the power and to pass the entirety of the estate. Id.

See AGENCY, 1; ESTATES OF DECEASED PERSONS, 1, 2, 6; INSUR.
ANCE, 4; PUEBLO LANDS; WILLS, 2, 3.

ULTRA VIRES. See CORPORATION, 13, 35.

UNLAWFUL DETAINER. See LANDLORD AND TENANT, 4-17.

VENDOR AND VENDEE.

1. ACTION BY VENDOR AGAINST AGENT-FRAUD-ESTOPPEL.-Where a broker or agent employed by the vendors of real estate in the sale of it falsely represented to the vendors that he had received a deposit on account of the sale, when he had in fact taken what proved to be a worthless note, and had full knowledge of the falsity of the statement, of which the vendors were ignorant, and the vendors, relying upon the statement as true, were induced thereby to approve of the contract of sale, the agent is bound to make good his statement, and is estopped from showing its falsity to the injury of the vendors, and the amount of the alleged deposit may be recovered from him as money received for the use of vendors.-Wood v. Blaney, 291. 2. RESCISSION OF CONTRACT-SECOND SALE BY VENDORS.-The fact that the contract of sale was rescinded, and that the vendors had sold the same land to third parties, does not render the agent of the vendors who received the deposit of the purchase money an agent of the vendee, or liable to him for the return of the deposit, and does not constitute a defense to the recovery by the vendors from the agent of the deposit which he had professed to have received from the vendee; but the vendee is entitled only as against the vendors to recover back the deposit, less the damage which the vendors had sustained by reason of the breach of the contract, and not as against their agent; and it is immaterial to his liability to pay over the deposit to the vendors, whether or not the vendee is entitled to recover any thing from the vendors, or whether or not the vendors were gainers or losers by the transaction.-Id.

WATER AND WATER RIGHTS.

1. NAVIGABLE STREAM-SOUTH FORK OF ELK RIVER-CONSTRUCTION OF CODE.-Under section 2349 of the Political Code, declaring navigable all streams emptying into Elk river, "which are now, or at any time have been, used for the purpose of floating logs or timber," the south fork of Elk river, which is a small stream insufficient to flow single sawlogs, except during extreme winter freshets, and with the aid of dams to increase the flow of the stream, which use has been found impracticable and abandoned, is not a navigable stream within the meaning of the code.-People ex rel. Ricks Water Company v. Elk River Mill and Lumber Company, 221.

2. STREAM, WHEN FLOATABLE FOR LOGS.-In order that a stream may be floatable for logs, within the meaning of the code, it must be capable of being used to an extent that would make it of some value as a highway, or at least it must appear that the stream could be so used for some portions of the year, and the fact that it could be so used for a few days in the rainy season, with the aid of dams, would not make the river navigable.-Id.

3. NON-NAVIGABLE STREAM-PUBLIC WAY-POWER OF LEGISLATURE. If a stream is, in fact, non-navigable, it is not a public way, and the legislature cannot make it such by merely enacting a law declaring it navigable, and so take private property for public use without compensation.-Id.

4. DAM ACROSS NON-NAVIGABLE STREAM-OBSTRUCTION-PURPRESTURE. The erection of a dam across the bed of a non-navigable stream is not an actionable obstruction nor a purpresture.-Id.

5. OBSTRUCTION AND POLLUTION OF STREAM-FINDINGS-REFUSAL OF INJUNCTION.-In an action to restrain the obstruction of a stream by a dam impounding sawlogs for the use of a mill, and from polluting the stream by discoloration from the logs, and by allowing sawdust to find its way into the stream, and by discharging the waste water from the kitchen, and waste matter from the sawmill, and the escape of offal into the stream from privies and a slaughterhouse, where the court finds that the bed of the stream was private property, that the sawdust was burned, and what little got into the stream had no appreciable effect, and that the water was not polluted to such a degree by any or all of the matters complained of as to render it unfit for use or unwholesome, and the evidence sufficiently sustains the findings, and shows that the sources of the alleged pollution, other than the discoloration from the logs, were not over or immediately upon the banks of the stream, the court may properly decline to enjoin the acts complained of.-Id.

6. RIGHTS OF PEOPLE EMPLOYED AT SAWMILL-REASONABLE PRECAUTION AGAINST POLLUTION OF STREAM.-The people employed at a sawmill, comprising a portion of the public, have as much right to live near the banks of a stream as the inhabitants of any community on the stream below them, if they take all reasonable precautions against unnecessarily polluting the water, and inhabitants and property owners upon the stream cannot be compelled to remove or be expropriated for the benefit of urban communities.-Id. 7. CONSTRUCTION OF CONSTITUTION-PUBLIC USE OF WATER-COM PENSATION.-Section 1 of article XIV of the state constitution, making water for sale, rental, or distribution a public use, was not