in this action. Nor does the record on this appeal raise any question as to whether the resolution or ordinance of the board is conclusive evidence of the necessity for taking or damaging appellants' lands, since it does not appear that any evidence upon this issue was offered by appellants, or rejected by the court; and, since it is not claimed nor specified that the evidence was insufficient to justify the verdict in any particular, it cannot be presumed that the bill of exceptions contains the evidence applicable to this issue.

5. It is contended that the court erred in excluding proffered evidence of damage to the business of three of the appellants,Reilly, Matthai, and Collins,-which had already accrued, and which would still further accrue, "by reason of said proposed widening;" it appearing that Reilly kept a saloon, Matthai, a blacksmith shop, and Collins, a bakery, "on the line of the proposed improvement.' The offer to prove such damage was as general as above stated. It did not specify the nature of the alleged damages. Nor does it appear that such business was done on the land taken, or on the land damaged, for which compensation was awarded by the jury. The general rule is that, in actions to condemn land for public use, no damages can be allowed for injury to business caused merely by the improvement, and not by the taking of property. Lewis, Em. Dom. 487. If there is any exception to this general rule, it must depend upon the specific nature of the injury, which should have been stated, in order to enable the court to determine whether it was within the exception. All that was stated was that the damage was such as had accrued, and would accrue, to particular kinds of business carried on somewhere on the line of the improvement, not by reason of the taking of appellants' lands, but "by reason of the said proposed widening." To say the least, the record does not show that the proffered testimony was competent, and therefore does not show that the court erred

PER CURIAM. The alternative writ of prohibition heretofore issued in this case is discharged, and the application to make the same perpetual is denied, upon the authority of City and County of San Francisco v. Kiernan, 33 Pac. Rep. 720, (No. 15,014, this day decided.)

(98 Cal. 633) GRAY v. GALPIN et al. (No. 15,028.) (Supreme Court of California. July 10, 1893.) FRAUDULENT CONVEYANCES-EVIDENCE.

1. The mere fact that the person to whom an assignee of a mortgage assigned it was the father of the mortgagee is no evidence that he was not a bona fide purchaser, but was partic ipating in a fraud, by which the property should be gotten out of the reach of the mortgagee's creditors.

2. The father paid his assignor for the mortgage a certain amount in cash, giving his notes for the balance. To raise the money, he gave a mortgage on his homestead. When this became due, he was unable to pay it, for the reason that the notes and mortgage assigned him had not been paid. Held, that the fact that the father's assignor paid the mortgage on the homestead, and took an assignment thereof to himself, was not evidence that the assignment of the other mortgage to the father had been fraudulent.

Department 1. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by Sheldon Gray against Philip G. Galpin, executor of Helen F. Gleason, deceased, and others, to foreclose a chattel mortgage. From a judgment for defendants, and an order denying a new trial, plaintiff appeals. Reversed.

P. Reddy and W. H. Metson, for appellant. W. E. Zeigler, J. B. Casserly, and H. Eickhoff, (Philip G. Galpin, of counsel,) for respondents.

PATERSON, J. This is an action to foreclose a chattel mortgage on the furniture of a lodging house in the city of San Francisco. On the 19th of May, 1886, Mrs. Laura Brotherton was the owner of the property, and on that day sold it to Helen F. Gleason for the sum of $5,500, $2,500 of which was paid in cash, and the balance in three promissory notes for $1,000 each, and payable,

ment should be affirmed.

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

HEFFERNAN et al. v. SUPERIOR COURT

OF CITY AND COUNTY OF SAN FRANCISCO et al. (No. 15,144.)

(Supreme Court of California. June 13, 1893.)

In bank. Original petition by Michael Heffernan and others for a writ of prohibition to the superior court of the city and county of San Francisco and A. A. Sanderson, judge of such court. Writ denied.

Henry E. Highton, for petitioners. John H. Durst, for respondents.

after date. On May 19, 1886, the mortgage and notes were transferred to C. K. Goodwin, and on July 3, 1886, he transferred the same to the plaintiff, Gray, for the consideration of $2,800, $1,300 of which was paid in cash, and the balance in three notes for $500 each, payable one year after date. The defendant Helm is an attaching and judgment creditor of Mrs. Brotherton, his attachment having been levied on June 4th, and judgment entered December 6, 1886. Mrs. Brotherton filed her petition of insolvency on January 3, 1887, and on February 7th the defendant Seligman was elected an assignee of her estate. The court foundthe facts being within the issues raised by the answers-that Mrs. Brotherton "did not indorse or deliver the notes hereinabove set forth, or either or any of them, to C. K.

Goodwin, for a good, valuable, or other or ¦ any valid, consideration, and that the C. K. Goodwin aforesaid did not indorse or deliver the same to the plaintiff herein for a good, valuable, or any valid, consideration; * * * and the indorsement of said notes by her to said Goodwin, and by said Goodwin to said plaintiff, was sham and fraudulent, not made bona fide, but made for the purpose of defeating defendant Gleason's cause of action, by reason of her counterclaim set forth in said answer. * * Said transfer was made by said C. K. Goodwin, and received by said plaintiff, for the purpose and with the intent, by each of them, of thereby hindering, delaying, and defrauding defendant J. H. Helm, and the sundry other creditors of said Laura Brotherton aforesaid, and the transfer last aforesaid was made by the parties thereto collusively, for the purpose of placing the said notes and mortgage beyond the reach of the aforesaid creditors of said Laura Brotherton."

So far as these facts connect the plaintiff with any bad faith or fraudulent purpose in the transaction, they are utterly unsupported by the evidence. There is no circumstance shown in the evidence upon which a suspicion of fraud can be founded, unless it be the fact that the plaintiff is the father of Mrs. Brotherton, and that the latter and Goodwin were visiting the former when the assignment was made to the plaintiff, but the mere fact of relationship cannot be resorted to as a badge of fraud. Fraud must be specifically charged. It cannot be presumed, and the burden of proof is upon him who alleges it. The conduct of the plaintiff was in all respects entirely consistent with fairness and honesty. The evidence shows, without contradiction, that the plaintiff purchased the notes and mortgage before maturity for a valuable consideration, and that the same were immediately delivered to him. He paid to Goodwin $1,300 in coin, and gave him three notes of $500 each, payable in one year, and no part of this consideration has ever been returned to him. In order to raise the $1,800 cash which he paid to Goodwin, he mortgaged his homestead to Mr. Crew, cashier of the Bank of Chico. When this mortgage became due, the plaintiff was unable to pay it, for the reason that Mrs. Gleason had not paid the notes and mortgage which had been assigned to him. Thereupon, Goodwin -to protect himself, doubtless-paid Crew the amount of the debt, and took an assignment of the note and mortgage. We see no evidence of fraud in this. It was a simple business transaction, by which Goodwin protected himself, in preventing a foreclosure sale of his debtor's property. The order appealed from is reversed, and the cause is remanded for a new trial.

Mr.

We concur: HARRISON, J.; GAROUTTE, J.

(98 Cal. 654)

In re LEVINSON'S ESTATE. (No. 15,200.) (Supreme Court of California. July 13, 1893.) EXECUTORS AND ADMINISTRATORS - DISTRIBUTION -PETITION-BONDS.

1. Testator gave his interest in a firm to one of the partners in trust, to retain half the profits for his services, and to pay $200 per month to his mother; the trust to continue for the life of his mother, or, if she died before he did, for five years; $3,000 to be paid S. on the death of the mother, and the balance to be then paid his sisters. The partners having refused to allow testator's capital to remain in the firm, and the trust having been renounced, testator's mother and sisters petitioned for a partial distribution, stipulating that $3,000 should be paid S., and the balance distributed equally among them. Held that, having thereby obtained an order of distribution, neither they nor the executor could object to the payment of the $3,000 to S. on the ground that she was not entitled to the income thereof during the life of the mother, or for five years after testator's death.

2. Such distribution to S. will not be denied on the possibility that testator's sisters may have issue who may become entitled to the income.

3. The petition for distribution stated that a year had elapsed from the issue of letters testamentary; that notice had been given creditors; that the time for presenting claims had expired; that all claims had been paid: that testator had bequeathed to petitioner $3,000; that the other legatees had agreed to a distribution by which this amount should be paid petitioner, and that the legacy could be paid without loss to the creditors or any person interested in the estate. Held, that this was sufficient, as the court could properly take judicial notice of other matters.

4. Whether a bond shall be required of any of the parties to a partial distribution is a question for the court making the distribution. from Department 1. Appeal superior court, city and county of San Francisco; J. V. Coffey, Judge.

Sallie Levinstone petitioned for partial distribution of the estate of John Levinson, deceased. From an order granting the petition, James W. Goodwin, administrator with the will annexed, appeals. Affirmed.

Horace W. Philbrook, for appellant. A. H. Loughborough, for respondent.

PATERSON, J. This is an appeal by the administrator with the will annexed from an order of partial distribution requiring the appellant to pay to Sallie Levinstone the sum of $3,000. By the terms of the will of the decedent his interest in the copartnership of Newman & Levinson was given to Benjamin Newman, one of his copartners, in trust, to retain one-half of the annual profits for his services during the life of the testator's mother, and out of the other half of the profits to pay her $200 per month, and the surplus of the profits, if there should be any, to be left in the business of the firm as a portion of his share of the capital. The testator directed that upon the death of his mother there should be paid to Sallie Levinstone $3,000 out of the copartnership interest, and that the remainder should be paid over to his sisters, Julia and Ada. Newman

renounced the trust on July 10, 1890. The inventory filed July 16, 1890, shows that the estate consisted of wearing apparel of the decedent, gold watch and chain, diamond ring, and the interest of the testator in the partnership of Newman & Levinson. It was shown that the surviving partners refused to allow the capital of the testator to remain in the firm. On September 18, 1891, Fannie, (the mother,) Julia, and Ada Levinson applied for an order of partial distribution to them upon the stipulation made between themselves. This stipulation recited the fact that the provision of the will was based upon an expectation that the interest of the testator in the firm would continue, and that the profits coming to the estate from his interest in the firm would be sufficient to pay the annuity given to his mother, but that such expectation had not been realized. The petitioners had therefore agreed that the estate might be distributed as follows: First, to Sallie Levinstone, $3,000, and the diamond ring; second, the residue of the estate to Fannie, Julia, and Ada Levinson in equal shares. The court found that the facts stated in the petition were true. It further found that, after reserving sufficient money to pay Sallie Levinstone and the executor's commissions, and a sum sufficient to cover all future expenses, there remained in the hands of the executor $9,000, which could be distributed without injury to the petitioners. An order was made distributing $9,000 to the petitioners without bonds. The final account of the executor was filed December 22, 1891, showing that he had received $20,965.78, and, after paying $9,000, distributed to the mother and sisters of the testator, he had in his hands the sum of $5,523.80. Sallie Levinstone did not join in the petition of Fannie, Julia, and Ada Levinson, but after the settlement of the executor's account she made an application for distribution to her in accordance with the agreement made by the other legatees.

It is claimed that by the terms of the will the $3,000 should not be given to Sallie Levinstone until after the death of Fannie Levinson; that until that time the income thereof is to go to other persons, some of whom may be born hereafter. We think this contention is unsound. Neither the mother nor the sisters certainly could raise such an objection after having procured an order of distribution upon the faith of their consent to an immediate distribution of the legacy of this respondent, and certainly the executor stands in no better position than they would under the same circumstances. supposition that the sister may marry, and die, leaving issue entitled to the income, is a contingency too remote to be considered. Furthermore, the contention assumes that under no circumstances can there be any payinent of the $3,000 legacy until after the expiration of five years. It is true the testator contemplated the continuance of the

The

trust for the term of five years, expecting that the trustee would carry out his wishes. This expectation has not been fulfilled; the trust cannot be executed. A fair construction of the various provisions of the will we think supports the view taken by the court below. The testator's chief concern was for the care and support of his mother during her lifetime. If she did not survive him, it was provided that the one-half of the profits set aside for her should go to his sisters "during the continuance of this trust." It is expressly provided that "upon the termination of said trust said Benjamin Newman shall transfer * * the sum of three thousand dollars to Miss Sallie Levinstone,

* the rest and residue of said partnership interest and share to be transferred

* and paid over to * * * Julia and Ada Levinson." There being no trust to carry out, time does not enter into the question to be considered, except for the protection of the mother. So long as she is willing to accept a sum certain, instead of a monthly allowance of $200, and the other legatees are willing that she should be paid that amount, there is no ground of complaint.

The objections to the sufficiency of the petition for distribution are not well taken. It shows that a year had elapsed from the date of the letters; that due notice to creditors had been published; that the time for presenting claims had expired; that all claims had been paid; that the testator had bequeathed to the petitioner the sum of $3,000; that Fannie, Julia, and Ada had agreed to a distribution as above stated, and that the legacy could be paid over to petitioner without loss to the creditors or any person interested in the estate. Other matters the court properly took judicial notice of.

The question whether a bond should be given by any of the parties to a partial distribution is one entirely within the discretion of the court below. The order appealed from is affirmed.

EXCELSIOR PAV. CO. v. PIERCE. (No. 19,163.)

(Supreme Court of California. July 25, 1893.) STREET-PAVING CONTRACT-PROVISION FOR REPAIRS BY CONTRACTOR.

1: A requirement in a street-paving contract that a contractor shall keep the street in repair for five years imposes an additional burden on the property owners, and therefore vitiates the assessment made under it, unless such requirement is authorized by the statute providing for the letting of contracts for street improvements.

2. The objection as to the additional burden is not removed by testimony of the contractor that the requirement did not enhance the amount of his bid, as others might have bid a less sum if the contract had not contained such requirement.

Brown v. Jenks, 32 Pac. Rep. 701, followed.

BROWN v. WINSHIP et al. (No. 19,171.) (Supreme Court of California. July 25, 1893.) Department 1. Appeal from superior court, San Diego county.

Action by one Brown against one Winship and others. Plaintiff had judgment, and defendants appeal. Reversed.

Oscar A. Trippet and Trippet, Boone & Neale, for appellants. C. T. H. Palmer and Shaw & Holland, for respondent.

PER CURIAM. Upon the authority of Brown v. Jenks, (opinion filed March 27, 1893,) 32 Pac. Rep. 701, the judgment herein is reversed.

(98 Cal. 665)

PEOPLE ex rel. FIELD v. EEL RIVER & E. R. CO. (No. 14,977.) (Supreme Court of California. July 13, 1893.) HIGHWAY DEDICATION OF LAND BY RAILROAD COMPANY-WHEN ULTRA VIRES-Evidence. 1. Where the owner of land opens a road thereon, and the public use it uninterruptedly for some five years, the placing of a gate across it at one end, which is left open during the day and closed only at night, and which was placed there to prevent injury to those using the road, or to prevent the public from driving on the owner's wharf, is not inconsistent with an intention to dedicate the road to public use.

2. Where such owner is a corporation it is not necessary that its intention to dedicate the road to public use should be shown by the records of its proceedings, but such intention may be shown by its acts and the testimony of its directors.

3. The dedication by a railrcad company of

a portion of its land as a public highway is nət ultra vires.

4. The fact that in the resolution of such company authorizing the purchase of such land no authority was given its representatives to agree that it should be used as a highway, does not render inadmissible evidence that its representatives made such agreement, where there is evidence that such agreement was afterwards ratified.

5. Nor is such evidence inadmissible on the ground that it is contradictory of the instru ment of conveyance, where it is not offered for such purpose, but to show the intention of the company to dedicate the road to the public.

Department 1. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Action by the people of the state of California by George A. Johnson, attorney general, on the relation of Waterman Field, against the Eel River & Eureka Railroad Company to obtain a judgment declaring a certain strip of land to be a public highway, and to compel the removal of certain obstructions therefrom. From a judgment for plaintiff, defendant appeals. Affirmed.

Horace L. Smith, for appellant. W. H. H Hart, Atty. Gen., and J. F. Coonan, Chamberlin & Wheeler, and D. Sevier, for respondent.

HARRISON, J. Plaintiff seeks by this action a judgment that a certain strip of land 60 feet in width by 1,500 feet in length, extending from the defendant's station at Field's Landing, in Humboldt county, to the county road, is a public highway, and to compel the removal of certain obstructions thereon. Judgment was rendered in its favor, and the defendant has appealed.

In November, 1882, the land in question was owned by one Waterman Field, and was by him conveyed to the defendant. Field was also the owner of a tract of land which the defendant purchased from him for its use as a station, and this strip of land, extending from the main tract of land to the county road, was included in the same conveyance. In the early part of 1883 the defendant constructed a road over this strip of land, opening fnto the county road at one extremity, and connecting at the other extremity with the other tract of land, and this road was thereafter used by the public as a highway without interruption until 1887, when the defendant erected a gate near the western end of the road, to prevent driving onto its wharf in the night. This gate was left open during the daytime, but was closed at night. In 1890 the defendant built a warehouse directly across the road near its station, and placed a permanent gate at the extremity, near the county road, which it kept securely locked, and thereupon this action was brought. The court found that in July, 1883, the defendant dedicated this strip of land for the use of the public as a public highway, and that the public accepted such dedication by user, and had used the same as a highway continuously from that time until its obstruction by the defendant in 1890. There is ample evidence in the record in

support of these findings, and, although there is also much contrary evidence, yet, as it was the function of the trial court to determine what consideration it should receive both in weight and character, we must accept its conclusion as determinative of the issue. That the road had been used by the public without interruption from the time of its construction in 1883 until the gate was erected in 1887 was not seriously controverted by the defendant, and there was testimony before the court to the effect that this gate was not placed there to prevent the public from using the road as a highway, but as a protection against danger in its use. While the placing of a gate across a road may be evidence of an intention not to dedicate the road to public use, yet it is not conclusive, and the act itself is consistent with an intention to dedicate the road as a public highway. The fact that the gate was left open during the day, and only closed at night for the purpose of preventing injury to those who use it, or of preventing the public from driving upon the defendant's wharf, is not inconsistent with its dedication to the public. So, too, the inference that the placing of the gates across the road evidenced a permissive user is impaired by the fact that such use had been uninterrupted for several years prior thereto. If the road was dedicated when it was first opened in 1883, such dedlcation could not be revoked in 1887 by placing gates across it. It was also shown by the testimony of persons who were the directors of the defendant, and acting in its behalf at the time the road was constructed, that it was the intention of the company to make it a public road, and that the land was purchased from Field for that purpose. This testimony was competent in support of the proposition that it was the intention of the defendant to dedicate the land as a highway when it constructed the same. It was not necessary that a formal resolution of its intention should be entered upon its records. A corporation as well as an individual may dedicate a portion of its land as a highway by its acts, and it is no more necessary that it should have a formal resolution of dedication upon its records than that an individual should execute a written declaration of his purpose to make a dedication. The objection that it is ultra vires for a railroad corporation to dedicate a portion of its land as a highway for the public is not tenable. Green v. Town of Canaan, 29 Conn. 166. See Los Angeles Cemetery Ass'n v. City of Los Angeles, (Cal.) 30 Pac. Rep. 523.

The defendant objected to the introduction of certain evidence on the part of the plaintiff, to the effect that when its representatives were negotiating with Field for the purchase it was agreed between them that it should be used for a public highway. The reasons presented in support of this objection are that in the resolution of the defendant authorizing the purchase, no author

ity was given to make such an agreement; and also that all the negotiations respecting the purchase were merged in the instrument of conveyance. The fact that the resolution under which the defendant's agents acted only authorized them to purchase the land does not of itself impair any agreement that might have been made with Field if the defendant subsequently approved such agreement and ratified their action. It was competent for the defendant to ratify the act of any one of its directors without having given him previous authority by a resolution in writing, and it was equally competent for it to ratify any act that the director might have done in excess of the authority conferred by resolution. The evidence referred to was not offered for the purpose of varying or contradicting the terms of the instrument by which the land was conveyed to the defendant. It was, however, admissible for the purpose of showing the intention of the defendant to dedicate the road which it should construct upon the land conveyed. Upon the issue whether the road that it constructed was intended to be a private or a public road, evidence that at the time it purchased the land declarations were made on its behalf that it intended to construct a public highway would be relevant and pertinent. If such an agreement had been made there would be an inference that its subsequent act in constructing the road was in pursuance thereof, and would corroborate the testimony of those who declared that at the time of its construction it was intended for a public highway.

There are other assignments of error in the admission of certain evidence, but none of them need any special attention.

The judgment and order are affirmed.

We concur: PATERSON, J.; GAROUTTE, J.

(98 Cal. 422) McKISSICK v. ASHBY. (No. 18,069.) (Supreme Court of California. June 3, 1893.) LANDLORD AND TENANT- UNLAWFUL DETAINEREJECTMENT-PLEADING-EVIDENCE.

1. Code Civil Proc. § 1161, provides that a tenant of real estate for a term less than life is guilty of unlawful detainer where he remains in possession after the expiration of his term without permission, but in the case of tenancy at will it must first be terminated by notice. Held that, where a tenant from year to year is notified before the termination of his lease that it will not be renewed, an action for possession can be maintained without previous notice or demand.

2. A complaint in ejectment alleging the leasing of the premises to defendant; that the lease had expired; and that defendant refused to vacate the premises, and "has withheld, and still withholds, the possession thereof from the plaintiff,"-sufficiently avers that defendant is in possession.

3. Though a tenant remained in possession without renewing his lease, he cannot deny his landlord's title without first surrendering to him the possession.