the owner of land bounded by a road or street is presumed to own to the center of the way unless the contrary be shown, and if it is described in a deed as so bounded, it will be considered as extending to the center of the street or road, unless a contrary intention is shown. Section 1112, Civil Code; section 2077, subds. 4-6, Code Civil Proc.; Moody v. Palmer, 50 Cal. 31; Kittle v. Pfeiffer, 22 Cal. 484; Webber v. California & O. R. Co., 51 Cal. 425. And in Coburn v. Ames, 52 Cal. 385, it was held that the owner of the fee in land, subject to the easement over the same for a public highway, may maintain ejectment for it as against an intruder.

But the appellants allege that section 465, Civil Code, subd. 5, gives them the absolute right to use the street for the purpose of running their steam railroad over it; that section 470, Civil Code, only restricts such user in a case where it has not been granted by the city authorities over some street in its corporate limits; and that the town of Sonoma was not incorporated at the time the street was taken possession of by hem, as shown by the complaint. The state constitution provides, however, that private property cannot be taken or damaged for any public use, save upon compensation first made, etc.; and no right of way over a street is allowed for the use of any other than a municipal corporation, save upon compensation ascertained by a jury, etc., (section 14, art. 1, Const. Cal.;) the procedure to accomplish which must be in accordance with section 1248, Code Civil Proc. We cannot agree to the rightfulness of defendants' contention that a different rule should prevail with respect to the ownership of a street up to its center or thread, on which one's lot abuts, where sales of Sonoma pueblo lands have been made by the commissioners authorized so to do from sales of lands made by other persons. St. 1867-68, p. 578.

The demurrer was, we think, properly overruled. And the findings which, among other things, declare the plaintiff to be the owner of the fee and entitled to the possession of the lots on Spain street, in the town of Sonoma, and of the said street in front of said lots to its center, and that defendants took possession of said street unlawfully, and without any grant or permission from the board of supervisors of Sonoma county, and ejected and ousted plaintiff therefrom on January 31, 1882, and have so continued to do, support the judgment. The judgment and order denying defendants a new trial should be affirmed.

We concur: BELCHER, C. C., and SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

v.10P.no.7-33

HERTING V. SUPERIOR COURT. (No. 11,368.)

Filed March 31, 1886.

APPEAL FROM JUSTICE'S COURT-UNDERTAKING-JUSTIFICATION OF SURETIES. On an appeal from a justice's court, if the sufficiency of the sureties on the undertaking on appeal is excepted to, and they fail to justify, the appellant cannot file a new undertaking with sureties in place of the former without giving to the adverse party the notice required by statute; (Code Civil Proc. Cal. § 978;) and if he does so, the appeal is not perfected, and the appellate court acquires no jurisdiction. On authority of Wood v. Superior Court, 7 Pac. Rep. 200.

Department 2. Application for writ of certiorari for the purpose of reviewing and annulling the proceedings of the superior court in taking jurisdiction of the cause of Holt v. Herting on appeal from the justices, and refusing to dismiss the same on motion. The motion to dismiss the appeal was based on the ground that the respondent had filed and served on appellant's attorney an exception to the sufficiency of sureties to the undertaking on appeal, and that a new undertaking had then been filed with a new surety thereto, but without notice of the justification of such surety to said undertaking being given to the respondent or his attorney.

B. F. Thomas and A. R. Cotton, for petitioner.
McNulta & Oglesby, for respondent.

BY THE COURT. On the authority of Wood v. Superior Court, 7 Pac. Rep. 200, it is ordered and adjudged that the proceedings of the superior court of Santa Barbara county in the action therein, entitled Holt v. Herting, on appeal from the justice's court, be, and the same hereby are, annulled.

(35 Kan. 126)

SUPREME COURT OF KANSAS.

BARR v. RANDALL and Wife.

Filed April 9, 1886.

TAXATION-TAX DEED-VALIDITY.

Where a person owns a tax-sale certificate, and is entitled to have a valid tax deed executed thereon, but such person is at the time the county clerk of the county in which the tax deed is to be executed, and such person as county clerk executes the tax deed to himself as an individual, and the tax deed is immediately recorded, held, that it is not absolutely void, and that after the statute of limitations relating to tax deeds has completely run in its favor it will be valid, and not even voidable.

Error from Marshall county.

E. W. Sargent, Cal. T. Mann, and George W. Clawson, for plaintiff in error.

Doniphan & Reed and A. E. Parks, for defendants in error.

VALENTINE, J. This was an action in the nature of ejectment, brought by S. M. Barr against William Randall and Elizabeth Randall, his wife, to recover certain real estate situated in Marshall county, Kansas. The action was tried before the court, without a jury, and the court, after making certain findings of fact and conclusions of law, rendered judgment in favor of the defendants, and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, now brings the case to this court for review.

It appears that one James C. Smith held the original patent title to the land in controversy, and that the plaintiff claims under a quitclaim deed from him. The defendants claim through intermediate conveyances under a tax deed executed by the county clerk of Marshall county to Russell S. Newell. It appears that on May 6, 1862, the taxes against the land in controversy for the year. 1861 were still due and unpaid; that on that day the land was sold for such taxes to Marshall county, and on the same day the county treasurer assigned the tax-sale certificate to Russell S. Newell. Newell at the time was county clerk of Marshall county, but under the laws as they then existed the county clerk had nothing to do with the tax sale, or the tax-sale certificate, or the assignment of the tax-sale certificate. All these things were then embraced within the duties of the county treasurer. Newell afterwards paid the taxes for the years 1862 and 1863, and on May 13, 1864, by the authority vested in him as the county clerk of Marshall county, and in pursuance of said tax-sale, and the assignment of the tax-sale certificate, and the payment of the taxes for the years 1861, 1862, and 1863, executed to himself as an individual the tax deed in controversy. In other words, the grantor in the tax deed appears to be Russell S. Newell, the county clerk of Marshall county, and the grantee appears to be Russell S. Newell; and the parol evidence in

troduced on the trial shows that the two are one and the same person. On May 14, 1864, this tax deed was duly recorded in the office of the register of deeds of Marshall county. On July 17, 1875, Newell, by a quitclaim deed, conveyed the land in controversy to I. C. Legere. On June 5, 1876, Legere, by a quitclaim deed, conveyed the same to Mary A. Watkinson. On March 21, 1881, Mary A. Watkinson, by a quitclaim deed, conveyed the land to the defendant William Randall; and Randall immediately took possession of the land, and has continued in the possession thereof ever since, and has made lasting and valuable improvements thereon, and he and his grantors have paid all the taxes assessed against the land from the year 1861 up to the present time. On January 25, 1884, the plaintiff, Barr, commenced this action to eject the defendant Randall and his wife from the premises.

The only question involved in the case is whether the aforesaid tax deed is absolutely void or not; and the principal objection urged against its validity is that it was executed by Russell S. Newell, as county clerk, to himself, as an individual. The sale seems to have been regular and valid in every particular. The purchase of the taxsale certificate by Newell from the county treasurer seems also to have been regular and valid; but concerning this matter we shall have more to say hereafter. So, also, does the assignment of the tax-sale certificate seem to have been regular and valid; and at the time when all these proceedings were had the county treasurer, under the statutes, had the right to sell and assign the tax-sale certificate to any person who desired to purchase, without any aid or assistance from the county clerk or consultation with him. Hence, at the time when the tax deed was executed, Russell S. Newell, as an individual, had an unquestionable right to the tax-sale certificate, and an unquestionable right to have a valid tax deed executed thereon to himself; and if he had resigned his office of county clerk, and another person had been appointed to take his place, he could have compelled such other person, by a writ of mandamus, to execute to him a valid tax ded.

There is another supposed irregularity, as follows: It is probable that Newell paid the entire purchase money for the tax-sale certificate in county scrip, and not in cash, or in the various warrants on the treasuries of the state, cities, townships, school-districts, etc., to which the various items of the consideration for the tax-sale certificate belonged. This may not be the case, however; for, presumptively, the officers did their duty. Presumptively, also, from the prima facie character of the tax deed in whose favor the statute of limitations has long since completely run, everything, except the fact that Newell appears to be both the grantor and grantee in the tax deed, was regular and valid. Also, upon the face of all the tax proceedings prior to the tax deed, everything seems to have been regular and valid. But Newell, who was a witness on the trial for the plaintiff, testified in terms that he paid for the tax-sale certificate in question in county scrip.

Now, it was unquestionably proper for him to pay a portion of the consideration for the tax-sale certificate in county scrip, and possibly all, under the statutes as they then existed. Indeed, it would be difficult to give a good reason why all might not have been thus paid under the statutes as they then existed. But supposing, for the purposes of this case, that such a payment was not proper, still such payment did no harm to the original owner of the land, or to any grantee of his, or to any person claiming under him.

Under the decisions of this court, made in an early day under the statutes as they then existed, the original owner or his grantee had the same right to redeem the land from the taxes, and the right to use the same kind of funds in doing so, after the assignment of the tax-sale certificate as before. Judd v. Driver, 1 Kan. 455, 464, 465; Guittard Tp. v. Marshall Co., 4 Kan. 388, 397. See, also, Comp. Laws 1862, c. 198, § 8, proviso. And, further, neither the original owner nor his grantee, in the present case, has ever attempted to redeem the land from the taxes; but totally abandoned the land from the year 1861 up to 1884, when this action was commenced, a period of nearly 24 years. Hence this irregularity of paying the entire consideration for the tax-sale certificate in county scrip, if it can be called an irregularity, is of such small dimensions, and of such inconsiderable consequence, that we shall hereafter entirely ignore it and exclude it from all further consideration.

The only irregularity, then, of any considerable consequence is the one that the person who executed the tax deed as an officer and as grantor was also the individual person to whom the tax deed was executed as grantee. We shall assume that the fact that the grantor and the grantee mentioned in the tax deed were one and the same person, acting and receiving merely in different capacities and in different relations, would render the tax deed voidable, and that any person having an interest in avoiding the tax deed might do so at any time before the statute of limitations had completely run in its favor; but the question then arises, is the tax deed so absolutely void that no statute of limitations can make it good? The tax deed in the present case was on record nearly 20 years before this or any other action was commenced to defeat or avoid the same, and before this or any other action was commenced which could have the effect of defeating or avoiding the same. We hardly think that the tax deed in this case ever was more than voidable; and we are also inclined to think that the statute of limitations has so completely run in its favor that all action having for its object the defeat or avoidance of the tax deed is now completely barred. The tax sale was itself unquestionably valid. The transfer of the tax-sale certificate, notwithstanding the aforesaid slight irregularity, was also unquestionably valid; and Newell, as before stated, had an absolute right to a tax deed, and no one but himself as county clerk could execute the same; and there is no statute which in terms prohibits him from ex