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in such cases is not bound to prove the same title as he alleges, for the disturbance is the gist of the action.”

6. We see no error in the construction given to the patent by the court below with respect to the boundary lines of the ranch. We think, under the description given in the patent, Kings River is one of the boundaries of the lands described in the complaint.

7. There was evidence to sustain the findings of the court with respect to the amount of damages sustained by plaintiffs. The court evidently believed from the evidence before it that the amount of water diverted by the defendant, if it had been permitted to flow in the channel of the river, would have furnished the plaintiffs’ cattle with sufficient water to drink, and that plaintiffs’ stock died by reason of the diversion of the water by defendant. The court excluded evidence offered on behalf of defendant to show that other parties were diverting water at different points on the river above the ranch of the plaintiffs. In this we think the defendant was not prejudiced. It does not appear whether the diversions referred to were lawful or unlawful, --with or without the consent of the plaintiff. If the acts of the owners of other ditches were joined with the acts of the defendant, thiet defendant cannot shield itself with evidence of such other diversions.

8. We think that the findings cover all the material issues raised by the pleadings. The court found, upon the questions of ownership of plaintiffs and their predecessors, their possession, and the use of the range for stock purposes; that Kings River flows through the lands; that Cole Slough is a natural watercourse, and a branch of Kings River; that plaintiffs have been damaged by the defendant's diversion of the waters therefrom; and that the cause of action is not barred by the statute of limitations. These are all the material matters in issue,

LXXVI. CAL-2

We see no errors in the rulings of the court in admitting or excluding evidence which operate to the prejudice of defendant's substantial rights. Some of the rulings respecting the notoriety of the diversions and the means of knowledge possessed by the plaintiffs appear at first sight to have been erroneous, but an examination of all the testimony shows that they were made upon the ground that the evidence of notoriety and knowledge was incompetent, because it did not relate to diversions made by the defendant, but to diversions of water from Kings River generally, and at a point many miles above the lands of the plaintiffs. The only purpose which could have been subserved by the evidence was to show that the defendant's diversion of water by means of its ditch was not clandestine.

Judgment and order affirmed.
Rehearing denied.

[No. 9934. In Bank.-April 28, 1888.) CITY AND COUNTY OF SAN FRANCISCO, APPEL

LANT, v. SAMUEL W. HOLLADAY ET AL., RESPON

DENTS.

SAN FRANCISCO-LAFAYETTE PARK— DEDICATION TO PUBLIC USE-ACT

OF JULY 1. 1861-JUDGMENT AS BAR.-The action was brought by the city and county of San Francisco to recover the possession of certain land, forming part of what is known as Lafayette Park. The plaintiff claimed that the land had been dedicated as a public square, and that it held the legal title in trust for such purpose, under the act of Congress of July 1, 1864, and the act of the legislature of March 11, 1858. The defendants pleaded in bar of the action a judgment rendered in favor of Holladay, in an action brought by him against the city and county, on the 17th of December, 1864, to quiet bis title, in which it was decided that the land never had been dedicated as a park, and that the city and county had no title thereto. Held, that the action having been brought subsequent to the passage of the act of July 1, 1861, the judgment rendered therein was a bar

to the present action. ID.—QUIETING TITLE AGAINST CITY AND COUNTY.-Under the provisions

of the consolidation act of 1850, the city and county of San Francisco could properly be made a party defendant in an action to quiet title at the instance of a private person.

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

The action was brought to recover possession of certain land in the city and county of San Francisco, forming part of Lafayette Park. The plaintiff claimed to hold the legal title to the land in trust for the people, under the act of Congress of July 1, 1864, and the act of the legislature of March 11, 1868. The defendants claimed to be entitled to the land, under the provisions of the Van Ness Ordinance, and pleaded certain judgments in bar of the action. The provisions of the ordinance under which the defendants claimed title are set out at length in the case of Hoadley v. San Francisco, 50 Cal. 266. Judgment was rendered in favor of the defendants. The appeal was taken from an order refusing the plaintiff a new trial. The further facts are stated in the opinion of the court.

William Matthews, Craig & Meredith, and John L. Love, for Appellant.

The judgment in Holladay v. San Francisco is not a bar, as the action was unauthorized. (Sharp v. Contra Costa County, 34 Cal. 290; People v. Doe, 36 Cal. 220; Branham v. San Jose, 24 Cal. 585; Leet v. Rider, 48 Cal. 623; Polack v. San Francisco Orphan Asylum, 48 Cal. 490; Meriwether v. Garrett, 102 U. S. 511; Carr v. United States, 98 U. S. 433; King v. Lagrange, 61 Cal. 221; United States v. Lee, 106 U. S. 196.)

S. W. & E. B. Holladay, R. C. Harrison, W. C. Belcher, E. B. Mastick, and R. H. Lloyd, for Respondents.

The judgment in Holladay v. San Francisco is a bar to the present action. (Outram v. Morewood, 3 East, 354; Caperton v. Schmidt, 26 Cal. 513; Miles v. Caldwell, 2 Wall. 39; Henderson v. Henderson, 3 Hare, 100; Cromwell v. County of Sac. 94 U, S, 353.)

PATERSON, J.-This is an action of ejectment brought by plaintiff to recover of the defendants two parcels of land in the city and county of San Francisco, forming a part of what is known as Lafayette Park. The plaintiff claims that it is seised in fee of the land in trust for the people of the state; that the lands were dedicated to the public; that the defendants are trespassers and intruders thereon. Plaintiff claims title under section 5 of the act of Congress of July 1, 1864 (13 Stats. at large, 333), and an act of the legislature of California, passed March 11, 1858 (Stats. 1858, p. 52).

A digest of the provisions of the Van Ness ordinance and other ordinances of the city, mentioned in the act of the legislature referred to, is given in the report of Hoadley v. San Francisco, 50 Cal. 206, and shows the basis of plaintiff's claim to the lands in controversy in this

case.

In defense of the action, the defendants made a general denial, and pleaded in bar three final judgments entered before the commencement of the present action.

The court below found that all the matters and issues in this action, and all the questions of title and of dedication involved herein, had been, prior to the commencement of this action, heard, tried, and finally adjudicated and determined in favor of S. W. Holladay, one of the defendants herein, and against the plaintiff herein, in an action commenced November 16, 1863, in the fourth district court, wherein the people of the state were plaintiffs and S. W. Holladay was defendant; that the same land was the subject-matter of controversy in that action as in this, and that the same title and the same question of dedication to public use and acceptance by the public were litigated and adjudicated in that action as in this action; that said former action was commenced at the instance of plaintiff herein, and the trial thereof was managed and conducted in the interests of the plaintiffs by its attorneys and officers acting on its behalf.

The court further found that all the matters in issue in this action, including the title and question of dedication, were finally adjudged and determined in favor of Holladay, one of the defendants herein, and against the plaintiff herein, in an action commenced December 17, 1864, in said fourth district court, wherein Holladay was plaintiff and the city and county of San Francisco was defendant; that the same land was the subject-matter of that action as in the present action.

Upon these findings the court rendered judgment for the defendants.

The third action referred to was an action commenced by the people of the state, on the relation of Mayor Bryant, against the present defendants, wherein it was alleged by plaintiff that the land in controversy was a portion of a public square dedicated to public ustes. In the lower court said action was decided in favor of these defendants. Plaintiff's motion for a new trial was denied, an appeal was taken to this court, and the appeal was pending at the time the case at bar was decided. The decision of this court in that case is reported in 68 Cal. 439, and it was there held that the title which passed to the city and county of San Francisco by the act of July 1, 1864, was unaffected by the judgment in the case of People v. Holladay, commenced November 16, 1863, because it was acquired long after issue was joined in the action in which the judgment pleaded in bar was rendered, and because the attorney-general of the state had no power to submit the title of the government of the United States for adjudication.

The court below, therefore, erred in holding that said judgment, the first judgment pleaded in bar of this action, estopped the plaintiff from questioning the defendants' title to the lands in controversy.

The third judgment pleaded as an estoppel by the defendants in this action was reversed by this court in the People v. Holladay, supra, and of course is no defense

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