Francisco is vested in the plaintiff and the defendant Pacific Improvement Company, and that the appellant has no title or interest therein, and entered an interlocutory decree directing a partition of this estate between the plaintiff and the Pacific Improvement Company. From this interlocutory decree, and from an order denying a new trial, the present appeal has been taken.

At the trial of the cause the appellant, in support of his claim, introduced in evidence certain tax deeds made to him July 13, 1886, by the tax collector of the city and county of San Francisco for the parcels of land of which he claimed to be the owner, and his claim of title depends upon the validity of these deeds. One of these deeds was for a parcel of the land sold to him for delinquent taxes for the fiscal year ending June 30, 1883, and the others for the fiscal year ending June 30, 1884. No objection was made on behalf of the plaintiff to the introduction of the Ideeds in evidence, and in form they comply with the requirements of the Political Code, under which they are made prima facie evidence of certain facts and conclusive as to others. The plaintiff, however, introduced in evidence certain matters which he contends overcame the prima facie evidence of the deeds, and deprived them of any effect as conveyance of title.

1. The plaintiff introduced in evidence certain maps or plats of the block in question upon which the block had been subdivided into lots, and contends that, as the assessment was not made in accordance with these subdivisions, it was unauthorized and the subsequent proceedings were invalid. Section 3650, Pol. Code, prescribes the manner in which property is to be assessed, and the form of the assessment book. After declaring that all the property to be listed within the county shall be specified in separate columns under appropriate heads, it gives as the heading for one of these separate columns: "(3) City and town lots, naming the city or town, and the number of the lot and block according to the system of numbering in such city or town, and improvements thereon." The assessments upon which the tax deeds of the appellant were made describe the land by metes and bounds, and not by any number or block. One of the plats or maps introduced by the plaintiff is the map commonly known as the "Eddy" or "Red Line" map, which purports to have been made under the provision of section 5 of the aforesaid act of March 26, 1851. Of this map it is sufficient to say that, although block 25 thereon is subdivided by lines extending across the block, and these subdivisions are bisected, the several subdivisions are not numbered, nor is their size given, and consequently it would be impossible for them to be assessed by number. The object of the above provision of the statute is to obviate the necessity of describing each lot by metes and bounds, and to render an assessment by number equivalent to one made

by metes and bounds. But an assessment of land described by metes and bounds is not invalidated by reason of the fact that it would be as fully identified by giving its description by the number of the lot and block in which it is located. It may also be said that the subdivision of the land granted to the city by the act of March 26, 1851, either in blocks or lots, was not authorized by the act, and that the only authority for the map given by the act was to make a line of demarkation between the upland and the tide land. There was no evidence that the map had ever been officially declared a map of the city of San Francisco. In his brief the plaintiff refers to a map made in 1853 for the sale of the reversionary interest of the state in the land. It does not appear from the record that this map was offered in evidence, but from the copy set forth in the plaintiff's brief it appears that the subdivisions are radically different from those shown upon the Eddy map. This map was, moreover, prepared for the purpose of making a sale of the reversion held by the state, and does not affect the estate in the land covered by the partition, nor indicate that it was a part of the system of numbering in said city. The same observations may be made with reference to the map of the land prepared in the year 1868 from the one that had been made under the direction of the board of tide land commissioners. There was no evidence before the court that any "system" of numbering the lots and blocks had been adopted, or was at any time in existence, in San Francisco, and it appears that the land described in the tax deeds was for many years assessed under the same description as in the deeds. The fact that a single block has been subdivided into lots would not constitute a "system" of numbering, or indicate that other blocks were subdivided or numbered. In Klumpke v. Baker, 131 Cal. 80, 63 Pac. 137, 676, where it did not appear that there was any system in San Francisco for the subdivision of the blocks into lots, it was held that the action of the assessor in subdividing the blocks for the purpose of assessment, even if erroneous as to ownership, does not invalidate the assessment, especially where the owner does not give to that officer a description of the land claimed by him.

2. It is next objected by the plaintiff that the assessor did not prepare a delinquent list for either of the years 1882 or 1883, and consequently that there was no legal notice of the sale. The court does not find, nor was there any evidence, that the delinquent list was not prepared for either of these years, and under the provisions of the statute the deeds themselves became evidence that it was prepared. By section 3769 of the Political Code the tax collector is required to file with the county recorder a copy of his publication of the delinquent list, with his affidavit attached thereto that it is a true copy of the same; and by the same section this affidavit

is made prima facie evidence of this fact. Copies of the delinquent list for the years 1882 and 1883, duly verified and filed as thus required, were in evidence before the court, and, in the absence of any direct evidence to the contrary, these copies must be held to have established the existence of the originals. The inability of the auditor to produce them at the trial was not equivalent to evidence that they had never been made, nor would their loss or destruction after their function had ceased deprive the purchaser of the rights acquired by the deed. The authority of the tax collector to publish the delinquent list is given in section 3764, which provides that the list so published "must contain the names of the persons and a description of the property delinquent and the amount of taxes and costs due, opposite each name and description." The enumeration of these particulars is equivalent to a declaration that none other need be published. The provisions of sections * 3759-3762 are for the guidance of the auditor and tax collector in keeping the account of taxes chargeable to the latter officer, and determining the amount for which he is to account. In the assessment for the year 1882 the property sold for the delinquent tax of that year is described as follows: "Beginning at W. cor. of George and Hubbell Sts., thence running 1605/12 ft. S. W. on the line of Hubbell street; thence running at right angles N. W. 120 ft.; thence running at right angles N. E. 1605/12 ft.; thence running at right angles to the point of beginning S. E. 120 ft." In the delinquent list for that year the description is as follows: "Lot W. cor. George and Hubbell Sts.; th. S. W. 160 ft. 5 inches, by 120 ft. in depth." A full explanation of these abbreviations is given in the assessment roll, and also in the publication of the delinquent list, and the latter also contains a notice that the property offered for sale will commence at the initial point given in the description of the property, and will run for quantity along the boundary line first named in said description, extending the entire depth of the lot advertised. Section 3764 does not require the publication of the delinquent list to contain the same description as is in the assessment, or to give the amount of the assessment, but only requires it to contain "a description of the property delinquent," and "the amount of taxes and costs due." That the amount of the taxes and costs due was correctly given in the present case appears from the assessment roll and a computation of the amount of the tax with the costs authorized by statute added thereto. The provision of section 3765, requiring the tax collector to publish with the delinquent list a notice that "the real property upon which the taxes are a lien" will be sold unless the delinquent taxes are paid, also implies that it is sufficient to give such a general description as will identify the property. See Rollins v. Woodman, 117 Cal. 516, 49 Pac. 455. The 70 P.-2

object of requiring a description of the property in the delinquent list is to notify the owner of the land that the taxes thereon are delinquent, and that the lot is to be sold; and, if the description is sufficient to give this notice, it must be held to be a sufficient compliance with the statute. The rule that at one time prevailed, requiring the claimant under a tax deed to make strict and exact proof of every step to be taken in the proceeding under which the property was sold, has been greatly relaxed by modern legislation, and the speculative nature of purchases at tax sales has been thereby removed. Such legislation in this state is shown by the provisions of the Political Code making the deed prima facie evidence of all acts necessary for acquiring jurisdiction to make the sale, and conclusive as to all proceedings taken in the exercise of the jurisdiction thus acquired, and also by the provision in section 3885 that no "informality" in any act relating to the assessment or collection of taxes shall render the tax illegal. The duty of the owner of land to pay the taxes thereon, and the right of the state to enforce their collection, is not changed; but the inducement that under the former system was held out to the owner not to pay the taxes, in the hope that some trifling and immaterial defect in the proceedings might be shown to defeat the effect of the sale, has been taken away. The legislature doubtless considered that, in case of his failure to pay the taxes when due, his rights, as well as the rights of a purchaser at the tax sale, will be better conserved by throwing upon him the burden of establishing the invalidity of the sale, and at the same time declared that mere irregularities in the proceedings shall not defeat the rights of the purchaser. He is still at liberty to show that no jurisdiction was ever acquired to make the sale, but by incorporating into the statute the principle that official duty is presumed to have been properly performed the legislature has cast upon him the burden of showing the contrary. See Rollins v. Wright, 93 Cal. 395, 29 Pac. 58. It cannot be said that there is any ambiguity in the description given above in the notice of sale, or any uncertainty as to the property thereby referred to, or that the owner of the land was not fully informed of the property upon which the taxes were delinquent. The description in the delinquent list, as well as that in the notice of sale, is to be read in the light of the assessment and in connection therewith, and the variation in the present case between the one given in the assessment and that given in the notice of sale is, at the most, no more than an "informality," not affecting the substance of the proceeding, or capable of being misconstrued. The same considerations are applicable to the descriptions of the property in the notice of sale for the succeeding year.

3. In the year 1883 the state board of equalization increased the assessment roll of the

city and county of San Francisco by adding thereto 15 per cent. upon the amount fixed by the county assessor. In the tax deeds which were made upon the sales for this year the assessment recited therein is given at the amount at which the property was originally assessed by the county assessor. The plaintiff contests the validity of the deeds upon the ground that the assessment is not stated therein in accordance with the action of the state board of equalization. Section 3695 of the Political Code provides that, if any change is made by the state board of equalization in the assessment roll of a county, the clerk of that board shall transmit to the county auditor a statement of such change, and of the per centum to be added or deducted from the valuation of such statement [assessment?]. Section 3730 requires the auditor, upon the receipt of this statement, to make the corresponding changes in the assessment roll "by entering the same in a column provided with a proper heading in the assessment book." This, it appears from the transcript herein, was done in the present case. In Wells, Fargo & Co. v. State Board of Equalization, 56 Cal. 194, it was held that the function of the state board of equalization is limited to equalizing the assessment rolls of the various counties as compared with each other, and that it has no power to increase or lower any individual assessment upon the rolls of the respective counties. Under the authority of this case, the action of the state board of equalization cannot be regarded as an "assessment" of the several lots of land, but merely as a direction to the county auditor to add to the various assessments thereof such an amount as will have the effect in the aggregate to make the entire assessment roll of the county correspond in value with the assessment rolls of other counties in the state. The fact that, by making this change the basis upon which the amount of the tax for the several individual assessments is to be computed will be changed, does not render the action of the state board an assessment of the several parcels of land in the county, but is only an incidental consequence of its action. The statute does not require the tax deed to contain a recital of any changes that may have been made in the assessment, and we hold that the recital therein of the original assessment is a sufficient compliance with the statute.

Under the foregoing considerations it must be held that the evidence offered by the plaintiff was insufficient to overcome the effect given to the tax deeds by the statute, and that the court erred in finding that the appellant had no interest in the land sought to be partitioned, and that in its interlocutory decree it should have made provision for the appellant's interest therein.

The interlocutory decree and the order denying a new trial are reversed.

J.

We concur: GAROUTTE, J.; VAN DYKE,

TURNER v. HEARST. (S. F. 2,174.) (Supreme Court of California. Sept. 6, 1902.) LIBEL DAMAGES-INSTRUCTIONS.

1. There being evidence of gross negligence in publishing a libel, an instruction excluding exemplary damages is error.

2. An instruction authorizing the jury in its discretion to give no more than nominal damages for an admitted libel, tardily retracted, that plaintiff, an attorney, was accused of swindling, and compromised the matter, is er

ror.

Commissioners' decision. Department 1 Appeal from superior court, city and county of San Francisco; Wm. R. Daingerfield, Judge.

Action by John W. Turner against William R. Hearst. From judgment for plaintiff for $150 only, he appeals. Reversed.

J. C. Bates, for appellant. Garret W. McEnerney, for respondent.

SMITH, C. This case was before the court on a former appeal by the defendant from a judgment against him, which was reversed. 115 Cal. 394, 47 Pac. 129. The present appeal is by the plaintiff from a judgment in his favor for the sum of $150, and from an order denying his motion for new trial. The suit was brought to recover damages for a publication concerning the plaintiff in the defendant's newspaper, the Examiner, of date December 7, 1893, which, as alleged in the complaint, is as follows: "A long time ago, Lotta (meaning Miss Carlotta Crabtree) made serious charges against Turner (this plaintiff meaning), alleging that he swindled her out of money, and she had him (this plaintiff meaning) arrested on a criminal charge. The case was compromised, together with the settlement of several thousand dollars in notes given by the Plumas county lawyer (this plaintiff meaning) to the actress (the said Carlotta Crabtree meaning)." There is no denial of any of the allegations of the complaint. But it is pleaded by the defendant, in mitigation of damages, that the publication was the result of a mistake made by a reporter of the defendant's newspaper in transferring to its columns facts reported in the Post, by which the plaintiff was inadvertently referred to, instead of another, and that "when this mistake came to the knowledge of the defendant, he published a full and complete statement of the circumstances under which the mistake came to be made, and fully exonerated the plaintiff from any and all of the matters stated in said item." This retraction was published February 4, 1894.nearly 60 days after the publication of the libel, and 31 days after service of summons. Nor was it published until after the refusal of the plaintiff to accede to a proposition made to him by the defendant, January 19, 1894, to publish the retraction, if plaintiff would 1. See Libel and Slander, vol. 32, Cent. Dig.

351.

dismiss his suit. Under this state of the pleadings, the only question for the jury to determine was as to the amount of damages to be assessed. On this question the court, at the instance of the defendant, instructed the jury that they could "only give the plaintiff such a sum as will compensate him for the injuries caused by the publication"; thus excluding from the consideration of the jury the question of exemplary damages. But under the instructions of the court previously given, it was for the jury to determine from the evidence whether the publication was either malicious in fact, or the result of gross negligence or gross carelessness of the rights of the plaintiff or others; and these instructions are in accord with what was said by the court on the former appeal in this case (115 Cal. 401, 47 Pac. 131). "Gross negligence," it is there said, "or carelessness of the rights of others, is frequently equivalent in law to an intentional or malicious disregard of those rights"; and it is added: "Whether or not the method adopted by the Examiner amounted to such disregard was a matter for the jury, under proper instructions of the court." The instruction in question is obviously inconsistent with what is here said by the court, which is rt only a correct statement of the law (Wats. Dam. § 729; Field, Dam. 88; Childers v. Publishing Co., 105 Cal, 289, 290, 38 Pac. 903, 45 Am. St. Rep. 40; Westerfield v. Scripps, 119 Cal. 611, 612, 51 Pac. 958), but has become the law of the

case.

Other objections, more or less valid, are made to the instructions given by the court at the instance of the defendant, but it would be a tedious and unprofitable task to examine them all. The principles governing the question of damages, applicable to the case, are well settled, and may be briefly stated, and it is to be hoped that on a new trial the instructions may be somewhat simplified.

There is one objection, however, of too much importance to be disregarded. In one of the instructions asked by the appellant, the court was asked to instruct the jury, in effect, that in the case before them "a nominal verdict would be a denial of justice"; but in the modified instruction given, this portion of the instruction was omitted, and the jury was instructed, at the instance of respondent, as follows: "You are entitled to give the plaintiff as small a sum as you think him entitled to, and may, if you think him entitled to a verdict at all, give him a verdict in a nominal sum,-say one dollar,-if you believe him entitled to no more." This instruction, and the refusal of the court to give the instruction asked by the appellant, can be justified only on the theory that the case was one in which a verdict for a merely nominal sum was proper. But this was not the case. The libel complained of was of a most serious character, and its publication, and all the facts alleged in the complaint, had been admitted. Nor was the tardy retraction of the libel by the de

fendant calculated to obviate the serious consequences of the libel, except to a limited extent. The plaintiff was therefore entitled to substantial damages for the injury admittedly suffered by him,-that is to say, to "damages reasonably adequate" to the injury suffered, and the jury should have been instructed to that effect. Wolford v. Mining Co., 63 Cal. 484, 485; Mariani v. Dougherty, 46 Cal. 26; Sanderson v. Caldwell, 45 N. Y. 406, 6 Am. Rep. 105. As said in the case last cited, "the plaintiff was entitled to be compensated for the injury to his reputation, caused by the wrongful publication. His character was not impeached. In such case, a nominal verdict would have been a denial of justice."

We advise that the judgment and order appealed from be reversed.

I concur: GRAY, O.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed.

HART v. HOYT et al. (Sac. 978.) (Supreme Court of California. Sept. 12, 1902.)

TRESPASS-JUSTIFICATION—EVIDENCE.

1. It is immaterial that the quantity of water owned by defendant, and conducted through the ditch to her land, is left indefinite by the evidence, in an action for trespass, where defendant justified under a prescriptive right to the use of a ditch across plaintiff's land as a conduit of water to her lands, and a right of entry for repairing it.

Department 1. Appeal from superior court, Siskiyou county; J. S. Beard, Judge. Action by E. C. Hart against Elizabeth Hoyt and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Gillis & Tapscott, for appellant. Warren & Taylor, for respondents.

SMITH, O. This is a suit for trespass on plaintiff's land. The defendant Mrs. Hoyt justifies under an alleged prescriptive right to the use of a ditch across plaintiff's place as a conduit of water to her lands, and a right of entry for repairing the same. The other defendants justify as her servants. The case was tried by a jury, whose verdict was for defendants, and judgment was accordingly entered in their favor. The plaintiff appeals from the judgment, and from an order denying his motion for a new trial. The main question involved is as to the sufficiency of the evidence of Mrs. Hoyt's alleged right of entry to justify the verdict. The plaintiff's lands lie to the eastward of those of Mrs. Hoyt, and the ditch in question runs westerly through the lands of the plaintiff, and at the present time to and upon her lands. Formerly, according to the testimony of plaintiff's witnesses, the ditch did not quite reach the land of Mrs. Hoyt; but there is evidence

tending to show the contrary. There is also evidence tending to show that Mrs. Hoyt is the owner of water from the Shasta river, flowing in a ditch to the eastward of plaintiff's lands, known as the Miller, Casedy, and Hoyt ditch, which for many years she has been conducting to her lands through the ditch in question. Nor is it material to the issues in this case that the quantity of water thus owned by her, and conducted through the ditch to her land, is left indefinite by the evidence. We think, therefore, that the jury was justified in finding that she had acquired a prescriptive right to the use of the ditch.

As to entries on plaintiff's lands, made by her, in the exericse of her right, for the purpose of repairing the ditch, the evidence on her part is somewhat meager, and is stoutly contradicted by the plaintiff and his witnesses. But assuming, for the purposes of the decision, that the right to the use of the ditch would not imply the right of entry to repair it, she testifies unequivocally that she and her husband, who was her predecessor in title, have been using the ditch since 1864 or 1865, and have habitually sent men onto plaintiff's land to clean it out whenever necessary; and her testimony is strongly confirmed by her habitual use of the ditch, which, it appears from the evidence, required frequent repairing. We cannot say, therefore, that the verdict of the jury was not justified by the evidence.

Objection is made by the appellant to several rulings of the court with regard to evidence, but none of these seem to be of sufficient importance to require consideration.

We advise that the judgment and order appealed from be affirmed.

We concur: GRAY, C.; CHIPMAN, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

1. Pen. Code, § 801, providing that an indictment for a misdemeanor must be within a year after its commission, applies to an indictment for seduction under promise of marriage, where the judgment imposes a fine as punishment, though section 268 authorizes punishment by imprisonment in the state prison or by fine; section 17 providing that if the judgment imposes a punishment less than imprisonment in the state prison, the offense shall be deemed a misdemeanor for all purposes.

Department 2. Appeal from superior court, Riverside county; B. S. Smith, Judge.

John A. Gray was convicted of seduction under promise of marriage, and appeals. Reversed.

John G. North, Erl Rogers, and Kendrick & Knott, for appellant. Tirey L. Ford, Atty. Gen., A. A. Moore, Jr., Dep. Atty. Gen., and Lyman Evans, Dist. Atty., for the People.

MCFARLAND, J. The defendant was indicted for, and convicted of, the crime of seduction under promise of marriage, and the judgment of the court below was that he should be punished by a fine, and, in default of payment thereof, by imprisonment in the county jail at the rate of $2 per day, etc. He appeals from the judgment and from an order denying a motion for a new trial.

In our opinion the contention of appellant that the offense of which he was convicted was barred by section 801 of the Penal Code must be sustained, and therefore it is not necessary to consider the many other points which he makes for a reversal, some of which, at least, raise grave questions. The offense with whịch appellant was charged (Pen. Code, § 268) is punishable either by imprisonment in the state prison, or by a fine. It may, therefore, be either a felony or a misdemeanor; and whether it is to be considered the one or the other depends upon the character of the judgment rendered by the trial court. If the judgment be imprisonment in the state prison, the crime is a felony; if a fine only, or imprisonment in the county jail, a misdemeanor. It is provided in section 17 of the Penal Code that in such a case, if the judgment imposes a punishment less than imprisonment in the state prison, the offense "shall be deemed a misdemeanor for all purposes"; and that in such a case the offense shall be deemed to be a misdemeanor has been expressly held by this court in a number of cases. People v. Cornell, 16 Cal. 187; People v. Salorse, 62 Cal. 142; People v. Ayhens, 85 Cal. 88, 24 Pac. 635; People v. Perini, 94 Cal. 573, 29 Pac. 1027. In the case last cited the defendant was prosecuted for receiving stolen goods, which offense is punishable by imprisonment either in the state prison or in the county jail, and the court said: "Whether a person convicted of this offense has committed a felony or a misdemeanor can be ascertained by the nature of the judgment. the defendant is sentenced to serve a term in the state prison, the crime is a felony; otherwise, a misdemeanor. Pen. Code, §§ 16, 17." Therefore, as in the case at bar the judgment was less than imprisonment in the state prison, the offense was a misdemeanor. But section 801 of the Penal Code provides that "an indictment for any misdemeanor must be found, or an information filed, within one year after its commission"; and in the case at bar the alleged offense was committed, if at all, more than two and a half years before the indictment was found. The alleged offense was therefore barred. It is no answer to this defense to say that the indictment, on its face, charged a felony; it merely charged a certain offense, which might be a felony or misdemeanor, and was, therefore, as much a charge of the one as of the other. If the position of respondent on this point is tenable, then the defense of the statute of limitations to a charge of a misdemeanor can always be destroyed by the simple device of indict

If