Schwerdtle v. County of Placer

Citations

• 108 Cal. 589
• 41 P. 448
• 1895 Cal. LEXIS 895

Syllabus

<p>Appeal—Opinion—Record.—The opinion of the judge of the trial court forms no part of the record on appeal from the judgment.</p> <p>Ptrono Highways—Public Domain—Judicial Notice.—Courts will take judicial notice of section 2477 of the Revised Statutes of the United States, granting the right to lay out public highways over its lands, and of a state statute declaring all roads in use in a particular county public highways, and accepting them as such, but cannot take judicial notice that any particular land at a specified date was a part of the public domain.</p> <p>Id.—Dedication—Adverse User.—In the absence of any statute the common-law rule as to the presumption of a dedication of land as a public highway by adverse user applies in this state.</p> <p>Id.—Consent and Acquiescence oe Owner.—Where a dedication is sought to be established by a use which has continued for a time not long enough to perfect the rights of the public under the rules of prescription, then the actual consent or acquiescence of the owner is essential, since without it no dedication could be proved and none would be presumed; but where this actual consent and acquiescence can be proved, then the length of time of the public use becomes nonessential, because the offer to dedicate and the acceptance by use, both being shown, the rights of the public have immediately vested.</p> <p>Id.—Adverse Possession—Presumption op-Consent.—But where the claim of the public rests upon long-continued adverse use, that use for the period of time for the acquisition of title to land by adverse possession establishes against the owner the conclusive presumption of consent, and so of dedication. It affords the conclusive presumption of knowledge and acquiescence, and, at the same time, negatives the idea of a mere license.</p> <p>Id.—Erection oe Gates—Payment oe Taxes.—The right of the public in a highway is not lost by the act of the owner of the land in placing gates across it, after asking permission so to do