not be said to be any substantial conflict in the testimony. It shows that the block of Vallejo Street between Battery and Sansome varies in places from the official grade; that it is generally upon or very near such grade, but that, at one point, it is one foot nine inches above grade, at sundry points a few inches above, and at one or two points a trifle below grade. The highest point above grade, judging from its position on the diagram presented, must be under or at the edge of the sidewalk, if such there be. When we take into account that this street was graded some twenty years since, that, so far as appears, it has never been paved, that at the date of the trial it had been in use as a public street more than fifteen years, that the rock cutting was in some places hard and at others soft, that it had been worn out in places and filled in by the deposit of material for that purpose, and that most of the inequalities may be accounted for from this cause, coupled with the fact that it is so nearly accurate, we are of opinion the street was substantially graded, and that the court below should have so found. A moment's reflection must teach us two things: 1. That, were it so graded, the use in a great city for a number of years, without being paved, must inevitably produce inequalities of surface. This result is as certain as the laws of nature, of which it is a sequence. There is a presumption "that official duty has been regulary performed." (Code Civ. Proc., sec. 1963, subd. 15.) The proper officers, in the discharge of their official duty, decided that this portion of Vallejo Street had been graded. This presumption is open to rebuttal; but when the witnesses who were expressly employed to find departures from the official grade find no wider departure than that described in the evidence, we are of opinion the presumption should still remain, and that the finding of fact should have been that Vallejo Street, for the block from Sansome to Battery Street, had been graded prior to October 16, 1876.

We entertain some doubt as to the correctness of the · ruling of the court below in excluding the testimony of the witness Fanning. His opinion as an expert was not admissible, but it may well be that he possessed knowledge of facts which were proper and within the purview of the questions propounded. If so, he should have been heard. We should not reverse the judgment for this cause alone, for the reason that counsel for defendant should have so narrowed his question as to eliminate from it the idea that he was calling for the mere opinion of the witness. Upon the whole record we think the order appealed from should be reversed, and a new trial had.

Ordered accordingly.

MCKINSTRY, J., and PATERSON, J., concurred.

[No. 9980. Department Two.-May 15. 1888.] 1. H. THOMPSON ET AL., RESPONDENTS, v. FRANK

WILLIAMS ET AL., APPELLANTS..

CORPORATION MEETINGS OF DIRECTORS-ADJOURNED MEETING WHEN SPECIAL NOTICE OF MEETING-INVALID ASSESSMENT.-Where a regular meeting of the directors of a corporation, from which some of the members are absent, is adjourned to a future day, the hour of which is not fixed, the meeting held on the day to which the adjournment was had is a special meeting, of which notice is required to be given to the absentees at the regular meeting. If no such notice be given, an assessment levied at the adjourned meeting, in the absence of the former absentees, is invalid.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The action was brought by the plaintiffs, stockholders in the People's Ice Company, a corporation organized and existing under the laws of California, to restrain the defendants, who were directors of the corporation, from

selling certain shares of the capital stock of the corporation belonging to the plaintiffs, under an alleged levy of an assessment claimed to have been made on the 9th of October, 1883. On and prior to the eighth day of October, 1883, the corporation had its office and place of business at No. 414 O'Farrell Street, in the city and county of San Francisco. Its by-laws provided, inter alia, that regular meetings of the directors, of whom there were five, should be held on the second Monday of October of each year, without notice. On the 8th of October, 1883, the second Monday of the month, three of the directors, the defendants in this action, met at the office of the company, and resolved the removal of the company's office from 414 O'Farrell Street to 314 Mission Street, in said city and county, and adjourned to meet at that place on the 9th of October, 1883. They did so, and at the meeting so held levied the assessment in question. Two of the directors of the corporation were not at either meeting, and no notice of the adjourned meeting was given to them. Judgment was rendered in favor of the plaintiff, enjoining the sale of the stock, from which the defendants appealed. The fur ther facts are stated in the opinion of the court.

Estee & Wilson, and James Wheeler, for Appellants.

Cowdery & McCutchen, for Respondents.

THORNTON, J.-Each director must have special notice of the regular meetings of the board of directors of the corporation defendant, unless provision is made in the by-laws for such meetings. (Civ. Code, sec. 320.) Conceding that the provision in the by-laws was suificient to give notice to the directors of the regular meeting of the 8th of October at 414 O'Farrell Street, and that the removal of the office resolved at that meeting to 314 Mission Street was valid, still, as it does not appear that the hour of the day on the 9th of October on

An

which the adjourned meeting was to be held on the lastnamed day was fixed at the meeting of the 8th, and no notice of such adjourned meeting was given the directors Allen and Thompson, who were not at the meeting on the 8th, we must hold the assessment levied at the meeting on the 9th was levied substantially without notice and without authority. To hold that the adjourned meeting of the 9th, the hour of which was not fixed or declared by the meeting of the 8th of October, was a part of the meeting of the board of the 8th, and therefore no further notice of it was required, would be to sanction an evasion of the law in regard to notice to the directors of the meeting of the board. inspection of the minutes of the meeting of the 8th would give no information to the directors not attending that meeting of the time to which that meeting had been adjourned. In fact, it does not appear that the board. as a board ever did fix the hour on the 9th at which the adjourned meeting was to be held; and as it does not so appear, we must, in construing the facts as found, hold that the board on the 8th did not fix the hour at all. Under these circumstances, we cannot hold that the meeting on the 9th, at which the assessment was levied, was anything more than a special meeting, of the calling of which the non-attending directors, Allen and Thompson, had no notice or knowledge of any kind. The assessment was therefore levied without authority, and was a nullity. (See Manufacturing Co. v. Vassault, 50 Cal 534.) The judgment must be affirmed.

So ordered.

MCFARLAND, J., and SHARPSTEIN, J., concurred

[No. 9738. Department One.-May 16, 1888.]

THE PEOPLE EX REL. J. BRITTON, APPELLANT, v. PARK AND OCEAN RAILROAD COMPANY ET AL., RESPONDENTS.

PURPRESTURE-DEFINITION OF.-A Purpresture exists where one incloses or makes several to himself that which ought to be common to many. GOLDEN GATE PARK-LEGAL TITLE IN SAN FRANCISCO IN TRUST FOR PUBLIC.-The title to the Golden Gate Park, under the acts of Congress and of the state cited in the opinion, is in the city and county of San Francisco, in trust for the use of the public. ID.-RAILROAD IN PARK-WHEN NOT A NUISANCE.-A railroad unlawfully constructed in the park is a purpresture, and if it unlawfully obstructs the free passage or use in the customary manner of such park by the public, it is a nuisance, and may be abated as such by a court of equity. If it is not a nuisance, the remedy is not by the people are not injured, but by the holder of the legal title.

ID. NUISANCE A QUESTION OF FACT.-Whether or not an encroachment upon a public or private right is a nuisance, is a question of fact to to be determined by the jury or by the court sitting as such.

ID. DEFENDANT'S ROAD NOT A NUISANCE.-The road of the defendant, being constructed and operated so as not be obstruct the free and comfortable use in the customary manner of the park by the public, held, not a nuisance.

APPEAL from a judgment of the Superior Court of the city and County of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Attorney-General Marshall, Taylor & Haight, and P. F. C. Sander, for Appellant.

Unlawful encroachments upon the park, such as the ones in question, are nuisances per se, and injunction will lie to retrain their creation or continuance. (Wood on Nuisances, 2d ed., secs. 248 et seq.; 2 Dillon on Municipal Corporations, 3d ed., sec. 660; Angell on Highways, secs. 223-226; People v. Rich, 54 Cal. 74; Omnibus R. R. Co. v. Baldwin, 57 Cal. 164; Davis v. Mayor, 14 N. Y. 506; Commonwealth v. E. & R. R. Co., 27 Pa. St. 356; Dickey