side of Chicago street, instead of continuing around the outside of the railway curve on the north side of First street and passing down the west side of Chicago street. Plaintiff testified he heard no noise of any approach, and there was no positive testimony that the horn on the machine was sounded in warning. The line of travel through Chicago street from one intersection of First street to the other passes between two blocks of brick buildings. These buildings are of such a character as to obstruct from the view of one approaching the corner from one street a vehicle or car on the other street. The speed at which defendant was traveling, as described by plaintiff's witnesses, was "very fast," one witness estimating it at 25 to 30 miles an hour.

Accepting plaintiff's evidence as true, and the negligence of the defendant might be declared as a matter of law; therefore the objection of respondent that the inference of fact to this effect by the trial court in its findings is not supported by the evidence cannot be sustained. Under the circumstances here shown, it was the duty of the driver of the vehicle to proceed at a slow pace and with great circumspection if he would escape liability even to a pedestrian for injuries done to him. Sykes v. Lawlor, 49 Cal. 238.

Respondent's defense of contributory negligence rests upon the fact that the plaintiff, according to his own testimony, was moving backward and not looking out for his own safety at the time he was struck. His testimony cited in support of this contention is: "I had to go backward. My back was toward the east. He (I) can't be looking every minute. I started right back to oil. 1 got a few feet, and I thought I had better look up to see if anything was approaching, and I didn't get more than halfway turned around-I didn't get turned around east enough to see-before I was struck." Negligence is a comparative and not a positive term, and its use is relative whether applied to the negligence of the defendant or that of the plaintiff. For this reason in most cases it becomes a question of fact for the jury to determine who was negligent under the circumstances of the case. The degree of care which in one case is insufficient to relieve from a charge of negligence, in another might constitute more than ordinary prudence and caution. Had a pedestrain with no occupation requiring his presence in that part of the street devoted to the use of vehicles, been struck by a passing vehicle while he was backing along the roadway without looking to see where he was going, it is clear that he would have been guilty of contributory negligence. Niosi v. Empire Laundry Co., 117 Cal. 260, 49 Pac. 185. But the rights of a laborer whose duties require him to be in the roadway cannot be determined by the same rule. Not that he is bound to exercise any less care, but because

the care to be exercised must be determined from a different standpoint. 18 Am. & Eng. Ency, of Law (2d Ed.) p. 586. The proper discharge of his duties required plaintiff to move backward along the rail which he was oiling. He did this in such a manner as to face in the direction from which any car or vehicle obeying the "law of the road" (Pol. Code, § 2931) would approach, and also looked in the other direction often enough to satisfy the trial court that he was exercising due care at the time he was struck. His care or want of care was a fact to be determined from all the circumstances surrounding him at the time. Clark v. Bennett, 123 Cal. 277, 55 Pac. 908. It was for the jury to determine what would have been the conduct of a person of ordinary prudence under the circumstances of the case, as well as to determine whether or not the facts show negligence. The verdict of the jury is conclusive, both as to the existence of negligence and its effect as contributing proximately to the injury, unless a contrary conclusion necessarily follows from undisputed facts. Schneider v. Market St. Ry. Co., 134 Cal. 488, 66 Pac. 734. In considering as a question of law the relative negligence of plaintiff and defendant, and the conduct of either or both as contributing to the injury, an appellate court will assume that the jury took any view of the facts, justified by the evidence, which tends to support the verdict. Scott v. San Bernardino, etc., Co., 93 Pac. 677. The same rule holds good as to the findings of fact by the court where a jury is waived. So considered, the evidence in the case at bar clearly sustains the finding of the court that plaintiff was not negligent.

The deposition of the witness Matthews, introduced on behalf of the plaintiff, was taken upon a commission which was directed to "Any Notary Public or Other Officer Authorized to Take Depositions in the County of Noble, State of Indiana," and the return and certificate show that the deposition was taken before "Levi W. Welker, Notary Public." It was not taken under a commission directed to a "judge, justice of the peace, or commissioner selected by the court or judge or justice issuing it," as required by section 2024 of the Code of Civil Procedure. Counsel for defendant had notice of all the steps preliminary to the issuance of the commission and the settlement of the interrogatories, but proposed no cross-interrogatories and made no objections to the form in which, or the person to whom, the commission was directed. When the deposition was tendered in evidence he objected to its introduction in evidence upon the following grounds and in the following language: "We object on the ground that no proper showing has been made, or proper authority given for taking the same, no interrogatories have been settled, or cross-interrogatories settled, or legal notice given that there was to be any time given for settling interrogatories or cross-interrogatories,

no order was granted for taking the deposition, and that no legal proceedings have been taken for the taking of this deposition, and that it is without authority of law, or order of this court, and it is inadmissible, irrelevant, immaterial, and incompetent." The testimony contained in the deposition tended to establish that plaintiff was engaged in his occupation of oiling the tracks of the street railway, and thereby accounted for conduct on his part which would have been negligence in a mere pedestrian. It bore directly upon the issue of contributory negligence and we must therefore assume that it was material and that the court gave it some weight in determining that issue. Smith v. Westerfield, 88 Cal. 383, 26 Pac. 206; Salinas Bk. v. De Witt, 97 Cal. 80, 31 Pac. 744; Rulofson v. Billings, 140 Cal. 460, 74 Pac. 35.

It is a primary rule that the person taking a deposition must be one authorized by law. The person who is to take it should be named, unless the commission be directed to an officer, authorized by statute, by his official title. 6 Ency. Pl. & Pr. pp. 499, 493, and 494. Some of the cases hold that even where directed to an officer of one of the classes enumerated by the statute the particular one must be selected by the officer issuing the commission. De Renzes v. De Renzes, 115 La. 675, 39 South. 805, 2 L. R. A. (N. S.) 1089; Newton v. Brown, 1 Utah, 287; Argentine, etc., v. Molson, 12 Colo. 405, 21 Pac. 190.

Conceding that the deposition was irregularly taken and that the testimony therein was material, the objection to its admission which is now urged as a reason for the reversal of the judgment was not particularly specified or called to the attention of the trial court. While the rule requires this in respect to all objections to the trial court's rulings, it is emphasized by the courts in regard to objections made to a deposition on the ground of irregularity or want of authority in its taking. In most jurisdictions such defects must be taken advantage of by a motion to suppress the deposition. Such

a motion is required to be made before the trial, and must specify the irregularity with particularity, or the motion will be denied and the objection be deemed to have been waived; the reason for the rule being that the party in whose favor the deposition was taken should be given an opportunity to retake it, and remedy the defect complained of if the deposition was inadmissible because of an irregularity in its taking. Manning v. Gasharie, 27 Ind. 399; 6 Ency. Pl. & Pr. 591, 594.

The reason for the rule is as worthy of consideration under our system of practice as where the motion to suppress obtains, and the requirement of a specification of the particulars wherein the taking is defective is as necessary when it is pointed out by objection at the trial as where the defect is urged by a motion to suppress. As said in Weeks on Depositions (section 389): "A general ob

jection to a deposition reaches the relevancy, competency, or legal effect of the testimony only, and will not be considered as extending to any matter of form or question of regularity or authority in respect of the taking of such deposition. If it be liable to objection on either of the latter grounds, the specific objection must be pointed out with reasonable precision and certainty, and, if overruled in the inferior court, must be set forth in the bill of exceptions; and no exception not thus taken and set forth in the record can be raised or assigned as error on appeal. To hold otherwise would not infrequently enable a party to obtain a reversal, perhaps on some ground merely formal or technical, not made in the inferior court, and which, if it had been taken there, might have been easily obviated." Garvin v. Luttrell, 10 Humph. (Tenn.) 20; Greene v. Tally, 39 S. C. 338, 17 S. E. 779; Blackburn v. Morton, 18 Ark. 384.

The only specific objections stated, that no interrogatories or cross-interrogatories were settled, no legal notice given and no order was made for the taking of the depositions, etc., have no support in the record. The objections that no legal proceedings have been taken, that it is without authority of law, that it was inadmissible, irrelevant, and immaterial, were too general to call the specific defect relied upon here to the attention of the trial court, and cannot be made the basis of a reversal of the judgment. Greene v. Tally, 39 S. C. 338, 17 S. E. 779.

We cannot say that the amount of damages awarded is excessive. The court had before it the wage-earning ability of the plaintiff and his expectancy of life according to the mortality tables used by the insurance companies of the United States. It was also entitled to consider those other elements of damage for which a jury alone must determine the compensation. Skelton v. Pacific Lumber Co., 140 Cal. 444, 74 Pac. 13. We are not prepared to disturb its finding in this respect.

Judgment and order affirmed.

We concur: ALLEN, P. J.; SHAW, J.

(7 Cal. App. 220, 487) BARNES et al. v. DAVECK. (Civ. 382.) (Court of Appeal, Third District, California. Dec. 24, 1907. On the Merits, Jan. 29, 1908.)

HIGHWAYS-DEDICATION AND PRESCRIPTION. Where owners of adjoining lands abutting on a highway construct and fence a road from the highway along their dividing line to their houses, half a mile from the highway, and there put a gate across the end of it, and for 40 years it is used generally by the public for all purposes in going to and from highways beyond the gate, without such use being called in question or forbidden or interfered with, it becomes a highway by dedication and prescription.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 8.]

Appeal from the Superior Court, Sonoma County; Emmet Sewell, Judge.

Action by Henry Barnes and others against Nicholas Daveck. From a judgment for defendant, and from an order denying motion for new trial, plaintiffs appeal. Affirmed.

T. J. Butts, for appellants. F. McG. Martin, for respondent.

CHIPMAN, P. J. This is an action to perpetually restrain defendant from traveling over or across a certain strip of land, the property of plaintiffs. "The Supreme Court shall have appellate jurisdiction on appeal from the superior courts in all cases in equity" (section 4, art. 6, Const.), and to that court the appeal should have been taken. The appeal not having been taken to the proper court, "the cause shall be transferred to the proper court." (Ibid.)

Agreeably to rule 32 (78 Pac. xiii), it is ordered that the cause be transferred to the Supreme Court.1

We concur: HART, J.; BURNETT, J.

On the Merits.

CHIPMAN, P. J. Action to restrain defendant from entering upon or traveling over a certain strip of land claimed to be owned by plaintiffs, and over which they claim to have constructed a private way to their dwelling houses. The cause was tried by the court, sitting without a jury, and defendant had the judgment. Plaintiffs appeal from the judgment, and from the order denying their motion for a new trial.

The important issues in the case are disposed of in the following findings of the court, which appellants insist are not supported by the evidence, to wit: "(2) That plaintiffs' grantors did not construct a private way over and along said strip of land leading from the Santa Rosa and Penngrove wagon road to the dwelling houses upon the respective ranches of said Barnes and Roberts, but did construct a way for the uses and benefits herein set out. That plaintiffs have not for many years prior to the commencement of this action kept and maintained said road as a private road over said lands for their mutual use and benefit, and for the use and benefit of each of their respective places, but said road has been kept and maintained and existed as a public road for more than 44 years prior to the commencement of this action, by said plaintiffs, their grantors, and by neighbors who used and traveled over the same. That said strip of land or road has been fenced on both sides thereof and said fences maintained thereon for at least 44 years prior to the commencement of this action, and during all of said time the westerly outlet thereof has been the Santa Rosa and Petaluma public road, unobstructed, by gate or fence or at all. That said strip of land was not on October 5, 1906,

1 Retransferred from Supreme Court Jan. 10, 1908.

nor at the commencement of this action, nor is it now, a private road or way. (3) That over 44 years prior to the commencement of this action the then owners thereof made, laid out, and dedicated, as and for a public road, a road over, upon, and along said described strip of land, and that continuously thereafter said road has been used and is now used and traveled by the public, and for more than 44 years last past, the same has been and is now a public road or highway used as such continuously during said period by the public." There were many witnesses at the trial and a large amount of testimony taken to show the use made of the way in question and the character and duration of that use. There is but little dispute about the facts; the controversy being as to the application of the law to the facts.

There was much evidence tending to estab lish the following: A highway between Petaluma and Santa Rosa, running north and south, was dedicated and has been used as such for some 40-odd years. It bounded the lands of plaintiffs on the west. Along the dividing line between their lands and beginning at this Santa Rosa and Petaluma highway the strip of land referred to in the pleadings was used as a roadway and was traveled by the public before the land was inclosed. This travel at the beginning was not confined to the strip definitely, but in a general way followed it. About 40 years ago the strip of land was fenced by plaintiffs' predecessors defining the road as it now exists, thus separating the lands of plaintiff Barnes from the lands of plaintiff Roberts. This road connected with the public highway leading from Petaluma to Santa Rosa and ran east for half a mile, and not far from the east end of the roadway were the residences of plaintiffs. At the east end of this roadway was a gate which was placed there when the road was fenced and has ever since remained, requiring users of the road to open it in order to pass to and from the neighborhood further east. The west end of the road was left open. This roadway furnished a convenient means for the public to pass from the dedicated highway before mentioned to other public highways traversing other parts of the county further east. It connected at this gate with the roadway used by the public in order to reach the other public highways, with one of which, the Bennett Valley highway, this continuation of the roadway in question connected about half a mile from the gate mentioned. The public traveled over this route continuously, using the road in question in both directions for all purposes, and there was cumulative evidence that it has been so used by the public with the knowledge and consent of the owners of the Barnes and Roberts lands and without objection from them for about 40 years as found by the court. There has been a schoolhouse for many years situated not far from the gate mentioned, to reach which some of the children in attendance had to

pass over the road in question. The use of this road was general by all classes of persons and for all kinds of purposes, and at all hours of the day, not only those traveling for pleasure, but by farmers and teamsters hauling the products of the farm to market and freights coming out of the mountains east of the Petaluma and Santa Rosa highway. There was no direct evidence of any open assertion that this use by the public was of right during these many years, nor was there direct evidence that this use was adverse to the owners of the land. There seemed to have been no occasion for such assertion or claim, as the use was never called in question or forbidden or interfered with by the owners of the land in any way. The owners did most of what work was done to keep the road in repair, but there was evidence that the neighbors did some of this work.

The position of appellants is stated as follows: "We contend that the use of the highway, no matter how long, does not even tend to prove that the highway is a public highway, unless such use is shown to have been under some claim of right and adverse to the owner, or under some claim of right with the knowledge and acquiescence of the owner; and in the case at bar, while we freely admit that the road in question has been shown to have been used by all persons who wished to travel the same for 30 or 40 years, yet we still insist that the evidence does not show that such use was adverse to the owner of the land, or that the said road was used under a claim of right by any person or persons whatsoever." We do not feel called upon to review the numerous cases decided by our Supreme Court where the questions here presented were under consideration. Certain principles have been clearly established which we think decisive of this case. There are presumptions arising from certain facts which are conclusive and obviate the necessity for direct evidence to the point. It is not always necessary for the public in using a roadway to make proclamation that they are using it under a claim of right where the right is asserted as flowing from long usage with the the knowledge and acquiescence of the owner of the land; nor is it always necessary to show some aggressively hostile act by the public that such use was intended to be adverse to the owner. The claim of right, the adverse character of the use, and the knowledge and acquiscence of the owner of the land may be presumed from the facts and circumstances attending the use. It was said in Schwerdtle v. County of Placer, 108 Cal. 589, 41 Pac. 448: "Where the claim of the public rests upon long continued adverse use, that use establishes against the owner the conclusive presumption of consent, and so of dedication. It affords the conclusive and Indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license." In speaking of adverse possession where prescriptive

title to land is claimed, it has been said that the hostile possession must be open and notorious, and with intent to usurp the place of the true owner and put him out of possession (Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100); but the rule as to highways requires only such adverse use and occupation as is inconsistent with the owner's right to claim the exclusive use of the land; i. e., such adverse use as carries with it the assertion of an equal right by the public to use the highway. The general and indiscriminate and daily use of the road by the public, as in this case, with the knowledge and acquiescence of the owners, was evidence of its use adverse to any claim of the owners to the exclusive use of the land. Speaking of the rule, under facts not greatly variant from the facts here, the court said, in Hartley v. Vermillion, 141 Cal. 339, 74 Pac. 987: "When, as in this case, the public, or such portion of the public as had occasion to use the road, traveled over the same, with full knowledge of the landowners interested, without asking or receiving any permission and without objection from any one, for a period of time beyond that required by law to bar a right of action, a right in the public to the use of the road arises by prescription or implied dedication." In the recent case of Fleming v. Howard et al., 150 Cal. 28, 87 Pac. 908, it appeared that "there was an open, visible, continuous, and unmolested use of the way for more than 30 years prior to the beginning of the action." The court said, speaking through Mr. Justice Shaw: "Under these circumstances, it will be presumed that the use was under a claim of right, and adverse, and a prima facie title by prescription is thereby established," citing Washburn on Easements (4th Ed.) 156; 14 Cyc. 1147; Kripp v. Curtis, 71 Cal. 66, 11 Pac. 879; Franz v. Mendonca, 131 Cal. 209, 63 Pac. 361. Mr. Jones says: "A presumption that the use was under a claim of right and adverse arises from an undisputed use of an easement for the established period of prescription; and the burden is upon the party alleging that the use has been by virtue of a license or permission to prove that fact by affirmative evidence, otherwise the presumption stands

*

*

as sufficient proof and establishes the right." Jones on Easements, § 186. This burden was not seriously assumed by plaintiffs, much less sustained, to rebut the thoroughly well-established presumption, adverse to their contention. In Washburn on Easements and Servitudes (4th Ed.) p. 156, it is said: "And. if there has been the use of an easement for 20 years unexplained, it will be presumed to be under a claim of right, and adverse, and be sufficient to establish a title by prescription, and to authorize the presumption of a grant unless contradicted or explained." The rule to some extent was discussed in a recent case in this court, where it was said: "No particular act or series of acts is necessary to be done in order that the possession

may be notorious, but any visible act which clearly demonstrates an intention to claim ownership and possession will be sufficient to establish claim of adverse possession. [Citing cases.] Such claim may be made out by visible acts, without any assertions by word of mouth. When the use is not secret or clandestine, but open, visible, and notorious, the presumption of knowledge follows. [Citing cases.]" Guernsey v. Antelope Creek & R. B, Water Co. (Cal. App.) 92 Pac. 326.

Respondent contends that this strip of land became a public highway by operation of section 2619, Pol. Code 1872, as it was originally enacted, which declared that "all roads used as such for a period of five years are highways"-citing Bolger v. Foss, 65 Cal. 250, 3 Pac. 871. See, also, Southern Pacific Co. v. City of Pomona, 144 Cal. 345, 77 Pac. 929. The evidence in the case makes the section of the Code applicable as it read when first in effect January 1, 1873, for the road had then been traveled by the public for 20 years, and had been fenced as an open lane as it now is for at least 12 years. Respondent's point seems well taken, but we do not think it necessary to decide it. We are clearly of the opinion that the road became a public highway both by dedication and prescription under the rules of law hereinabove pointed out.

Error is claimed in admitting and excluding certain testimony. We have examined these assignments, and find no erroneous ruling of sufficient importance to justify a reversal.

The judgment and order are affirmed.

We concur: HART, J.; BURNETT, J.

(77 Kan. 450)

GIBSON v. FREELAND. (Supreme Court of Kansas. March 7, 1908.) 1. TAXATIONS-TAX DEEDS QUIETING TITLE -LIMITATIONS.

Where an action to quiet title is begun against several defendants less than five years after a certain tax deed thereon has been recorded, and the holder of such tax deed is not made a defendant in the action, or brought into court, until more than five years after the recording of his deed has elapsed, the action will be deemed to be commenced as to him when he was brought into court, and he will then be entitled to avail himself of the protection and presumptions which the lapse of the statutory limitation gives to a tax deed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1593-1596.]

2. SAME-TAX DEED-VALIDITY.

A tax deed executed under the compromise provision (Laws 1893, c. 110, § 4), and in substantial compliance with the requirements of that provision, and which is attacked more than five years after it was recorded, is not void on its face because the granting clause of the deed does not specify the particular years for the taxes of which the land was conveyed.

[Ed. Note. For cases in point. see Cent. Dig. vol. 45, Taxation, §§ 1507, 1508.]

(Syllabus by the Court.)

Error from District Court, Scott County; Charles E. Lobdell, Judge.

Action by Lizzie Welch against W. J. Pottorf and others. Judgment for plaintiff. Charles E. Gibson moved to vacate the judgment on the ground that Alonzo Whitcomb, defendant, was dead. Gibson was substituted for said Whitcomb, and R. M. Freeland, who claimed an interest, was made defendant. From the judgment, Gibson brings error. Affirmed.

W. H. Russell, for plaintiff in error. J. S. Simmons, for defendant in error.

JOHNSTON, C. J. This case turns upon the validity of a tax deed. Originally Lizzie Welch brought an action against W. J. Pottorf, the Anthony Loan & Trust Company, and Alonzo Whitcomb to quiet her title in a quarter section of land as against the defendants. On a publication notice to defendants, judgment was rendered in favor of the plaintiff on April 25, 1904. In April, 1906, Charles E. Gibson, who claimed to have acquired the mortgage and interest formerly held by Whitcomb, moved the court to vacate the judgment quieting title, on the ground that Whitcomb was dead when the action was brought and that no notice was given to the administrator of his estate. On this motion the judgment was vacated, and Gibson, being substituted for Whitcomb, set up the mortgage which he held, and asked for a foreclosure, and also asked that R. M. Freeland, who claimed an interest in the land, should be made a defendant. Freeland was brought in on June 10, 1906, and later he set up a tax deed issued January 10, 1901, and recorded May 4, 1901. The trial court, holding that the tax deed was valid on its face and had been of record for more than five years, gave judgment in favor of Freeland. The disposition of the case, therefore, depends upon the validity of the tax deed.

An attack is made on the deed on the ground that the granting clause does not state that the consideration named therein was for the taxes for specific years. It is argued that the form outlined in the statute contemplates that the granting clause of a tax deed shall recite that the land was conveyed for the taxes of certain named years. The statutory form referred to is intended for the ordinary tax deed, and does not fit a conveyance for taxes upon a compromise made with the county commissioners under section 4, c. 110, p. 195, Laws 1893 (Gen. St. 1905, § 8404). The deed in question is based upon a compromise sale, and the granting clause recites: "Now, therefore, I, W. S. Manker, county clerk of the county aforesaid, for and in consideration of the sum of forty-six dollars, so paid to the treasurer of said county, as aforesaid, and in pursuance of the said resolution of said board, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by