author: CURTIS, J.

text:
    [L. A. No. 16472.
    In Bank.
    February 14, 1938.]
    ARLIN E. STOCKBURGER, as Director of Finance, etc., Petitioner, v. FRANK C. JORDAN, as Secretary of State, etc., Respondent. ARLIN E. STOCKBURGER, as Director of Finance, etc., Petitioner, v. HARRY B. RILEY, as State Controller, etc., Respondent.
    [L. A. No. 16473.
    In Bank.
    February 14, 1938.]

      Webb Shadle and Norris J. Burke for Petitioner.
    Olson & Olson, Culbert L. Olson, Newby & Newby and Nathan Newby, as Amici Curiae,, on Behalf of Petitioner.
    U. S. Webb, Attorney-General, and Darwin Bryan, Deputy Attorney-General, for Respondents.
   CURTIS, J.

These two causes were argued and submitted together. As they involve the identical legal question, they will be considered and decided in one opinion. The legal question therein presented is whether chapter 304 of the Statutes of 1937 (Stats. 1937, p. 665) is an urgency measure and, therefore, not subject to referendum petition under the terms of section 1, article IV, of the Constitution.

The title to this act is as follows: “An act relating to certain State lands and the production and disposition of oil, gas and other hydrocarbon substances therefrom, providing for the condemnation of real property, rights of way, easements and other interests therein for the purposes of this act, repealing all acts or parts of acts inconsistent or in conflict therewith, declaring the urgency thereof, and providing that this act shall take effect immediately. ’ ’

As indicated by its title, the act relates to certain lands owned by the state which are capable of producing oil, gas and other hydrocarbon substances. In section 1 of the act, these lands are referred to more definitely as “certain tide and submerged lands at Huntington Beach, Orange County ’ ’, and are described by metes and bounds. By section 2' of the act, it is recited that the oil and gas deposits in said land's are being constantly drained by oil wells drilled in, and operating on, private property situated adjacent thereto, and that the protection of the public interest requires the development of said lands and the production and removal of the oil, gas and other hydrocarbon substances therefrom for the benefit of the state. Section 3 provides that, “The Director of Finance is hereby authorized and directed to secure the development, extraction, removal, and sale of oil, gas and other hydrocarbon substances from said lands for the benefit of the State in the manner hereinafter provided.” Section 5 of the act gives to the director of finance the power and authority to acquire by condemnation, or otherwise, any real property and any right of way necessary or desirable for the convenient access to said' state lands for the purpose of development of the same. Sections 6 to 25, inclusive, of the act, provide for the leasing of said land and lay down a procedure to be followed in the leasing of said land by the director of .finance and those desiring to make leases thereof. All persons desiring to lease any parts of said land may file bids for such leases, and in the event no bid's are received, the director of finance may again call for bids, or with the consent and approval of the governor of the state, may immediately proceed to drill wells on said lands for and on behalf of the state, and to that end may purchase all necessary equipment for the prosecution of said work. The work of drilling and construction work connected therewith, if done by the state, may be performed under contract let to the lowest bidder. All gas, oil, or other hydrocarbon substances from said wells belonging to the state shall be sold by the director of finance. Section 27 provides for the repeal of all acts inconsistent or contrary to the enacted statute. By section 28 of the act it is declared that it is deemed necessary for the immediate preservation of public peace, health, and safety, and that said measure “shall take effect immediately”, and a statement of facts constituting such necessity is set forth in said section of said act.

In the proceeding against the secretary of. state, being L. A. No. 16472, the petitioner alleges the passage and approval of chapter 304 of the Statutes of 1937; that the director of finance has advertised for bids for leasing said lands; that bids have been received by him for leases thereof, and that a time has been fixed for the opening of said bids; that respondent secretary of state has received from the registrars and county clerks of the several counties of the state copies of a purported petition to submit to a vote of the people at the next general election in the state under the referendum provision of the Constitution, said measure, designated as chapter No. 304 of the Statutes of the legislature of 1937; that said respondent has issued his certificate that said referendum petition has qualified as a measure to be submitted to a vote of the people; and that said respondent will, unless otherwise ordered by the court, submit said proposed referendum measure to the electors of the state at the next general election in the state of California. Petitioner asks for a writ of mandate directed to the respondent secretary of state commanding him not to submit said purported measure to a vote of the people of the state.

In the proceeding against the state controller, L. A. No. 16473, petitioner alleges that said chapter 304 was enacted by the 1937 legislature; that in the performance of his duties under said statute he, as director of finance, has purchased certain supplies required by the terms of said statute for which he has filed with said respondent controller a claim against the state of California, and that said controller has refused to audit or allow said claim or any part thereof, and has refused to issue his warrant upon the state treasurer in payment of said claim. In this proceeding, petitioner seeks a writ of mandate commanding the respondent, state controller, to audit and approve said claim and to issue his warrant for the amount thereof upon the state treasurer.

A general demurrer was interposed to the petition in each of said proceedings, and the two causes have been submitted for decision upon briefs filed by the respective parties. In their briefs, the two respondents contend that chapter 304 of the Statutes of 1937 is subject to the referendum provision of the Constitution of this state (see. 1, art. IV), that an adequate and legal petition has been duly filed requiring said act to be submitted to the vote of the people of this state at the next general election for rejection or approval, and that said act does not go into effect until approved by a majority of the electors of the state voting thereon. Petitioner does not question the sufficiency of the said referendum petition, but contends that chapter 304 is not subject to the section of the Constitution providing for the filing of referendum petitions against acts of the legislature, and that chapter 304 became effective at the date of its enactment, as expressly provided therein.

Those portions of article IV, section 1, of the Constitution relative to the issues herein, are as follows:

“The second power reserved to the people shall be known as the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the state, and urgency measures necessary for the immediate preservation of the public peace, health, or safety, passed by a two-third's vote of all the members elected to each house. Whenever it is deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll-call thereon; provided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed by the legislature and declared to be an urgency measure shall go into immediate effect. ’ ’

It is well settled in this state, and in most other jurisdictions where the question has been the subject of judicial consideration, that the determination of the existence of a public necessity for the enactment of an urgency measure rests upon the judgment of the legislature. It is said to be purely a legislative question, the determination of which will not be interfered with by the courts, save in those few exceptional cases where it appears clearly and affirmatively from the legislature’s statement of facts that a public necessity does not exist. (Hollister v. Kingsbury, 129 Cal. App. 420 [18 Pac. (2d) 1006]; In re McDermott, 180 Cal. 783 [183 Pac. 437]; Roy v. Beveridge, 125 Or. 92 [266 Pac. 230]; Arkansas Tax Com. v. Moore, 103 Ark. 48 [145 j3. W. 199]; State v. Carter, 257 Mo. 52 [165 S. W. 773].) The legislature having determined by the declaration contained in said act that the enactment of said statute was necessary for the immediate preservation of the public peace, health and safety, and the determination of the legislature of the existence of such necessity being conclusive upon the courts, we are precluded in these proceedings from further questioning the necessity for such legislation. All parties to these proceedings are in agreement as to this proposition.

While the legislature is given the power to declare when the necessity exists for the enactment of an urgency measure, it is expressly provided in said section of the Constitution that: “No measure creating or abolishing any office, or changing the salary, term or duties of any officer . . . shall be construed to be an urgency measure.” Respondents contend that chapter 304 changes the duties of the director of finance and therefore under the referendum provision of the Constitution said statute “shall not be construed as an urgency measure”. Petitioner in answer to this contention argues that the statute does not change the duties of the director of finance or of any other officer of the state. As the duties of no other officer of the state are affected by this statute, except those of the director of finance, it will only be necessary to consider said act in so far as it affects the duties of such officer.

As indicated by the brief references to the various sections of said statute, the director of finance is given quite extensive powers by the terms of said act. Not only is he made the agent and representative of the state in the leasing of said oil-producing lands and as such given direct charge of all leases under the act, but in case no bids are received for the leasing of said lands, the director of finance, with the consent and approval of the governor, may “proceed immediately with the drilling of wells thereon for and on behalf of the state for the production, removal, and disposal of oil, gas and other hydrocarbon substances therefrom”. This drilling of said lands may be done under contract, or it may be carried on directly by the state. In either of such events, the director of finance represents the state in all such operations, and, furthermore, it is made his duty to sell to the highest bidder all oil, gas, or other hydrocarbon substances produced.

In order to determine whether the duties of the director of finance have been changed by the enactment of chapter 304, it will be necessary to review the history of the legislation creating the office of director of finance and prescribing his duties. The office of director of finance was created in the year 1927. (Sec. 655, Pol. Code; Stats. 1927, chap. 251, p. 449.) Under this act of the legislature (chap. 251), the various duties of this officer were defined. This act added a new article to chapter III of title I of part III of the Political Code, and embraced sections 654 to 685, both inclusive, of said code. Section 657 of the Political Code, as embraced within said act, provided that the director of finance as head of the department of finance should perform all duties, exercise all powers and jurisdiction, assume and discharge all responsibilities and carry out and effect all purposes now or hereafter vested by law in the department of finance, except such duties, powers, jurisdiction, responsibilities and purposes as were by said act specifically vested in the board of control. We do not find that said act vested in the board of control any duties respecting the leasing of land belonging to the state. Section 675 of the Political Code, embraced in said act, gave to the director of finance the power to lease “with the consent of the State Department, board, commission or officer concerned” real or personal property belonging to the state under certain conditions not necessary to here state. Evidently this section of the code thus enacted gave the director of finance no authority to lease oil-bearing or other mineral lands of the state. In 1929 the office of surveyor-general was abolished arid the department of finance succeeded to the duties and powers of that office. (Pol. Code, sec. 690; Stats. 1929, p. 892.) Section 675 of the Political Code was amended in the same year. (Stats. 1929, p. 894.) By the amended section, the director of finance’s power to lease state lands was made more specific but did not include the power to lease oil lands. In 1931 said section 675 was amended by the enactment of two sections, each numbered 675 and published in the Statutes of 1931 as chapters 325 and 326, respectively. (Stats. 1931, pp. 845 and 851.) These amendments were enacted and approved on the same day and accordingly would have gone into effect on the same date unless a referendum petition was filed against one of them. Section 675 as amended by chapter 325 contained ten subdivisions, the first eight of which were practically identical with those contained in section 675 as amended in 1929. The ninth subdivision referred to land of the state abutting on abandoned river channels and is not relevant to any question involved herein. The tenth subdivision of said section gave to the director of finance authority to lease “any land belonging to the state or in which the state has an interest, for the production of minerals, oil, gas or other hydrocarbons”. By chapter 326 of said statutes, section 675 of the Political Code was amended so that it read precisely like said section as amended by chapter 325, except that subdivision 10 contained in chapter 325 was omitted from said section as amended by chapter 326. A petition under the referendum provision of the Constitution was filed asking that chapter 326 be submitted to the vote of the people. At a special election held on May 3, 1932, it received a favorable vote of the people, and accordingly went into effect five days after the date of the official declaration of said vote by the secretary of state. As the effective date of chapter 326 was long subsequent to the effective date of chapter 325 of the laws of 1931, chapter 326 must be held to be the later statute and, therefore, it repealed by implication all provisions of chapter 325 inconsistent with those of chapter 326. We find no authority directly supporting this statement, and none has been called to our attention. On the other hand, we know of no authority holding a contrary view. We think, however, that no other reasonable conclusion can be sustained. The two statutes were enacted on the same day. Chapter 325 went into effect ninety days after the adjournment of the legislature. A referendum petition was filed against chapter 326. The Constitution provides that upon the filing of a referendum petition, “No such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon.” Chapter 326 was ineffective, therefore, until approved by the electors of the state and the official declaration of the result of said vote by the secretary of state. Five days after such declaration the act for the first time became effective. It necessarily, and by all rules of statutory construction, repealed by implication all acts inconsistent with its provision at that date. If the legislature should enact two statutes upon the same subject-matter, the terms of one of which were different and inconsistent with the terms of the other, and one of said statutes became effective ninety days after the adjournment of the legislature, and the other was made effective one year after said date, the first of said statutes would control said subject-matter until the effective date of the second statute when the provisions of the second statute would supersede all provisions of the first statute inconsistent with those of the second. In effect, this is the situation respecting chapter 325 and chapter 326. The latter under the Constitution of this state having been made effective at a date subsequent to the effective date of the former, takes precedence over the former and governs the subject-matter of such legislation. It is to be noted that the only difference in the two enactments was the omission of subdivision 10, found in chapter 325, from chapter 326. Where a statute is revised and some parts omitted, and it is clearly the intention to cover the whole subject by the statute, the omitted parts are considered as repealed or annulled. (Wood v. Roach, 125 Cal. App. 631 [14 Pac. (2d) 170]; Mack v. Jastro, 126 Cal. 130, 131, 133 [58 Pac. 372]; Carter v. Stevens, 208 Cal. 649 [284 Pac. 217].) Both chapter 325 and chapter 326 purport to cover the whole subject of the duties and powers of the director of finance respecting the leasing of land belonging to the state, and when the subsequent act omitted subdivision 10, found in chapter 325, both reason and authority would indicate that it was the intention of the legislature to withdraw from the director of finance those powers granted to him by said subdivision 10 of chapter 325.

Not only did chapter 326 repeal and supersede chapter 325, but also, being a special act fixing the duties of the director of finance, it superseded the general duties imposed upon that officer by section 657 of the Political Code which, as we have seen, was enacted in 1927, and gave to the director of finance all the powers and duties vested in the department of finance. (23 Cal. Jur., p. 708.)

It might be well to make further reference to certain legislation respecting the leasing of tide and overflowed lands belonging to the state. The Mineral Land Act of 1921, section 8 (Stats. 1921, p. 408) gave to the surveyor-general the authority to lease such lands on a royalty basis. The director of finance subsequently succeeded to these powers. But by subsequent legislation these powers were suspended and the surveyor-general was deprived of all such powers and authority. (Stats. 1929, p. 11; also, p. 945.) By section 24 of this later act, the legislature in express terms deprived every state officer of any and all power to lease any tide or submerged lands for the drilling of oil and gas. These statutes were in force up to the date of the enactment of chapter 304.

That chapter 304 made a material and substantial addition to the duties of the director of finance over those existing and conferred upon him prior to the enactment of said statute cannot, we think, be successfully challenged. Prior to that date he had no duty to perform in reference to the leasing of the lands of the state for the production of oil, gas, or other hydrocarbon substances. In fact, he and all other officers of the state were prohibited from leasing any of the tide or submerged lands of the state for the drilling of oil and gas. By chapter 304 he is given extensive powers and corresponding duties not only in the leasing of the lands described in the act, but under certain conditions it is made his duty to proceed with the drilling of wells on said lands for and on behalf of the state for the production of oil and gas therefrom.

The word “change” has various shades of meaning depending upon the subject-matter to which it is applied. Petitioner contends that the mere addition of duties to those already imposed upon an officer is not a change in his duties. He cites the definition of the verb “to change”, as given in Webster’s New International Dictionary as follows: “to alter by substituting something else for; or by giving up for something else; to put or take another or others in place of; to make substitution of, for, or among”. As an illustration of this meaning we might refer to the use of the word “change” in the well-known legal term “change of venue”, which implies the substitution of another place of trial for the place of trial in which the action is pending. Other standard works are cited by petitioner giving to the word “change” the same meaning as given by Webster. Petitioner also cites authorities showing that the word “change” is frequently used as meaning “substitution”, “exchange”, or “to put one thing in place of another”. It is in this sense petitioner contends that the word “changing” is used in the section of the Constitution in which the people of the state reserved to themselves the power to refer acts of the legislature to a vote of the electors of the state. It is argued, therefore, that a statute which merely imposes additional duties upon an officer is not such a change in his duties as to bring the statute within the provision mentioned in sa¿d section of the Constitution.

Another meaning of the verb “to change” given by Webster is “to alter; to make different”. It is in this sense that the word is used when referring to a change in the by-laws or the articles of incorporation of a corporation. As so used, unquestionably any substantial addition to either of these instruments would certainly be deemed to be a change therein, and could only be made by the mode prescribed by law. It is in this sense the respondents contend that the word “changing” is used in said section of the Constitution.

An examination of the language of said section we think shows clearly that it is in this latter sense that the word “changing” is used in said section. The pertinent part of said provision reads as follows: “No measure . . . changing the salary, term or duties of any officer . . . shall be construed to be an urgency measure.” We think it will not be contended that the increase or decrease in the salary of an officer is not a change in his salary. It is equally apparent that any increase or diminution in the term of an officer is a change in his term. As the three words “salary”, “term”, and “duties” not only occur in the same sentence but grammatically are objects of the same participle, “changing” the same meaning must be given to the participle when applied to one of these objects as when applied to the others. It is clear, therefore, that when we look at the text in which this phrase appears, the word “changing”, when considered in its connection with the words “duties of any officer”, must mean any increase or addition to the duties of such officer. In our opinion, no other reasonable construction can be given the word “changing”, as used in said section of the Constitution.

The fact that the legislature has enacted many other statutes which change the duties of an officer and has purported to make such statutes emergency measures, cannot under the rule of legislative construction, avail the petitioner in these proceedings. The provision of the Constitution declaring that no measure changing the salary, term, or duties of any officer shall become an urgency measure is an express limitation upon the legislature in such matters, and we know no rule of law which holds that the repeated violation of a statute, or constitutional provision, by an individual or body, the actions of whom the statute or constitutional provision was designed to curb or limit, would change the meaning of such a statute or place a construction thereon not in fact to be found in the statute or constitutional provision.

We are also unable to agree with the contention of petitioner that a measure which the legislature has declared to be an urgency measure, but which in fact is not, goes into effect immediately upon its enactment and remains effective for all purposes even if a referendum petition is filed against it, until it is rejected by the voters of the state. This contention is against the plain terms of the Constitution which provides that a statute against which a referendum petition is filed, goes into effect upon a favorable vote thereon, five days after official declaration of said vote. Respondents, on the other hand, contend that any act passed by the legislature even though declared to be an urgency measure, and which is in fact such a measure, is subject to the referendum provision of the Constitution that it goes into effect immediately, but upon an adverse vote of the people, after a referendum petition has been filed against it, ceased to be of any effect. It is not necessary for us to pass upon this contention, for we are dealing with a statute which is not an urgency measure, and which, therefore, is subject to the referendum filed against it, and, therefore, is ineffective until there is a favorable vote thereon and a declaration of such vote by the secretary of state.

It is not for us to speculate as to the reason for the insertion in the Constitution of the provision which prohibits the legislature from enacting as an urgency measure a statute changing the salary, term, or duties of any officer. Whether the purpose of the legislature in proposing this section of the Constitution, or of the people who voted for its adoption, was to restrain “a complaisant legislature, subservient to powerful but evil influences”, from awarding “an unfaithful public servant”, or from punishing “one who was inexorably faithful to his trust”, as contended by petitioner, is not within our province to determine. We have nothing to do with the policy of the law as expressed in this section of the Constitution, and can neither approve nor condemn the same. Our duty begins and ends with the interpretation of the language so used in the Constitution, and with ascertaining the meaning thereof. This we have attempted to do, regardless of the reasons which may have prompted those responsible for the enactment of this provision of the Constitution.

Neither can we in placing a construction upon this section of the Constitution consider the result of our decision upon the rights of those concerned in this litigation or upon the interest of the state, however vital those interests may be. The legislature determined, and the petitioner alleges, that owners of land adjacent to those belonging to the state and described in chapter 304 are by means of wells draining valuable oil and gas deposits from the state-owned lands, and that the state for that reason is daily suffering great loss and damage by being deprived of revenues which it would receive if permitted to lease said lands or otherwise develop the same under the provisions of said act of the legislature. We must assume that this determination of the legislature and these allegations of the petitions are true. The delay in the development of the state lands described in the statute and in pursuance thereof may result in daily loss to the state of a considerable proportion of its revenue. These considerations can have no bearing upon the duty of the court which is simply to declare the meaning of a provision of the Constitution regardless of the consequences that may follow. In this connection it might be stated that the power to lease these very lands was in 1929 withdrawn from any and all state officials, and these lands lay idle for eight years before the enactment of chapter 304 of the Statutes of 1937. It may be a source of regret that this condition, by reason of the limitation placed upon the power of the legislature to enact urgency measures, must continue for a few months longer.

Respondents have attacked chapter 304 upon other grounds than that discussed above. Our conclusion that the statute is not an urgency measure renders the discussion of these other grounds unnecessary.

The alternative writ, issued in each of these proceedings, is annulled, and the petitions are, and each of them is, denied.

Langdon, J., Waste, C. J., Shenk, J., and Edmonds, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    [S. F. No. 15917.
    In Bank.
    February 14, 1938.]
    EDWARD B. CLANCY, Petitioner, v. ARLIN E. STOCKBURGER, as Director of Finance, etc., Respondent.
    Finlayson, Bennett & Moncur for Petitioner.
    Webb Shadle and Norris J. Burke for Respondent.
   CURTIS, J.

In this proceeding a writ of mandate is sought against the respondent, Arlin E. Stockburger, as director of finance, commanding him to refrain from receiving any bids, and requiring him to keep sealed and unopened any bids received by him for the leasing of certain lands of the state under the provisions of chapter 304, Statutes of 1937, until said measure has been approved by the voters of the state under the referendum provision of section 1, article IV of the Constitution of this state. It is alleged in the petition herein that within ninety days from the adjournment of the 1937 legislature a referendum petition in due and legal form was signed by the required number of qualified voters of the state asking that said act of the legislature be submitted to the electors of the state for their approval; that within said period of time, said petition was filed in the office of the secretary of state, and said officer has issued his certificate showing that said petition for referendum had qualified as a measure to be submitted to the voters of the state; that notwithstanding the signing and filing of said referendum petition and the issuance of said certificate by the secretary of state that the same was sufficient and had qualified as a referendum petition, the respondent has continued to act under said statute, known as chapter 304, and will open sealed bids for the leasing of said state oil lands and will proceed to execute leases for the same unless restrained by this court. To this petition, the respondent has filed a general demurrer.

The only point involved in this proceeding is whether chapter 304 is an urgency measure and therefore went into effect immediately upon its adoption, or whether it is subject to the referendum provision of the Constitution of the state. This same point was raised and considered in the two proceedings entitled, Stockburger v. Jordan, L. A. No. 16472 and Stockburger v. Riley, L. A. No. 16473 (ante, p. 636 [76 Pac. (2d) 671]), this day decided. In these two proceedings, it was held that chapter 304, Statutes of 1937, was not an urgency measure and, therefore, as a referendum petition, adequate in form and signed by the required number of electors of the state, had been filed against said measure, the same was ineffective until it had been approved by the vote of the/ electors of the state and the result of said election announced by the secretary of state. It follows from the holding in those proceedings that the respondent herein has no authority to proceed under the provisions of chapter 304 until the approval of said measure by a vote of the people of the state and five days after the announcement of the result of said vote by the secretary of state.

Let the peremptory writ issue as prayed for.

Langdon, J., Waste, C. J., Shenk, J., and Edmonds, J., concurred.


author: EDMONDS, J.

text:
    [L. A. No. 15772.
    In Bank.
    February 15, 1938.]
    CITY OF MANHATTAN BEACH (a Municipal Corporation), Appellant, v. JAMES G. CORTELYOU et al., Respondents.

      Clyde Woodworth, City Attorney, and Robert H. Dunlap and George R. Larwill, Special Counsel, for Appellant.
    O'Melveny, Tuller & Myers, Pierce Works, Neil S. McCarthy and Earl L. Banta for Respondents.
   EDMONDS, J.

The City of Manhattan Beach fronts on the Pacific Ocean. Along its westerly boundary lies a strip of sandy beach, about 125 feet wide, which is said to constitute its principal charm and main attraction. By this suit, filed in 1924 but not brought to trial until 1935, the city seeks to quiet title to a public easement over this land which extends from its southerly boundary approximately 3,500 feet to the north. The superior court decided against the city, which appealed from the judgment rejecting its claims.

In 1901 Manhattan Beach Company was the owner of a large tract of land fronting on the Pacific Ocean. This was originally a part of the Rancho Sausal Redondo y Guaspito comprising 22,458 acres and having a westerly boundary which was described in the patent as “following the meanders of the sea beach or easterly shore of shoal water bay at ordinary high water line”. The property of the Manhattan Beach Company was conveyed to it by two deeds in which the westerly boundary was described as “ordinary high water mark” and “along the high water mark” of the ocean. The subdivision of this property, according to two maps filed for record in 1901 and 1902 respectively, occasioned the present controversy. By these maps the city contends the owners dedicated for public use the strip of land in question. It also claims that there was an implied offer of dedication by the public use of the property for recreational purposes with the owner’s encouragement and consent and that both that offer and the express offers made by the recordation of the maps were accepted. Other points urged as grounds for reversal of the judgment concern rulings on evidence offered at the trial.

Some years after the subdivision maps were filed the interest of Manhattan Beach Company passed to James G. Cortelyou and later to Manhattan Beach Development Company who are the defendants in this action and the respondents upon appeal. However, after the suit was filed their interests passed to other owners who have carried on the litigation in the names of these defendants.

Each of the maps recorded by Manhattan Beach Company shows the land then owned by it which comprised a tract extending some 3,500 feet along the Pacific Ocean and upland for an average distance of probably 1400 feet. The map filed for record in 1901 shows the subdivision into lots and blocks of a rectangular-shaped parcel lying in the southwest corner of the tract and extending 2,760 feet along the ocean and about 600 feet upland. On the westerly side of this map there is a meander line without designation indicating the shore of the ocean. To the east of this line and approximately parallel with it there is another meander line marked “High Tide Line”. Farther east and roughly parallel with the two meander lines is a straight dotted line which has no designation. Immediately east of the dotted line a 50-foot right-of-way for an electric railroad is shown. About 100 feet from the northerly boundary of the land outlined for subdivision the dotted line, which south of this point is shown as being west of the westerly boundary of the right-of-way, crosses it and continues northerly within the right-of-way. In other words, for about 100 feet south of the northerly boundary of the property subdivided by this map, the right-of-way encroaches on the land between the dotted line and the meander line marked “High Tide Line”. Between the dotted line and the meander line marked “High Water Line” the words “The Strand” appear twice. To the east of the railroad right-of-way there is a 15-foot space open to the streets which extend in an easterly and westerly direction, and the blocks nearest the ocean front on this space.

On this map under the heading “Description” appears the following: “The land embraced on this Plat of Manhattan Beach is a part of land . . . conveyed to Manhattan Beach Co. . . . more particularly described as follows, to-wit: Beginning at a 4" x 4" stake known as high water mark of Pacific Ocean at the N W Cor. of said land” thence by metes and bounds “to a 3" x 4" stake at high water mark, thence N 22° 09' W 2760.7 ft. to the place of beginning. . . . Other Lots and Blocks designated therein are only proposed allotments for a supplemental map and are only introduced to show the lines of So Oal Ry., [not referring to the right-of-way along the beach] the proposed allotments hereafter intended to be made, surveyors’ marks and other important bearings. Note: Colored portion only dedicated and recorded by this map ’ ’.

The northerly, easterly and southerly boundary of the land described is outlined on the map in red. The closing course of the description, according to the testimony of a surveyor, follows the dotted line exactly. The ends of this line are also colored red; that is to say for a short distance from the point at which the dotted line meets the line shown as the northerly boundary of the proposed subdivision the dotted line is colored and for approximately the same distance from the point at which it meets the line shown as the southerly boundary of the tract it is also colored.

Under the word “Dedication” the following is also shown on the map: ‘ ‘ The Manhattan Beach Company, a corporation, hereby declares that it is the owner of that portion of the lands embraced in the annexed Plot lying within the colored border line thereon, that it has caused the same to be surveyed, platted, and that it does hereby designate as public thoroughfares all of those portions marked thereon as “The Strand, alleys and public grounds not otherwise deeded for street car purposes”. There also appears on the map a certified copy of a resolution of the board of supervisors of Los Angeles County by which it is ordered that all streets and alleys appearing upon the map “and therein offered for dedication be and the same hereby are accepted as public streets and alleys”. The map filed for record in 1902 shows as a subdivision all the property comprising the large parcel which is delineated on the 1901 map lying easterly of the dotted line except the rectangular piece which was there plotted into lots and blocks. This land borders the ocean for 700 feet to the north of the first subdivision, and the lines on the first map, which have been described as dividing what may roughly be termed the beach into several strips running parallel with the ocean, continue through the land to the north. In other words, that portion of the land in the second subdivision which fronts on the ocean is depicted in the same manner as is the land along the beach on the first map, with the exception that the dotted line on this map is marked “High Water Line”.

Under the title “Description” the following appears on the 1902 map: The land embraced in this plat of Manhattan Beach Division No. 2, is a part of a tract of land . . . more particularly described as follows, to-wit: Beginning at a point at high water mark of the Pacific Ocean” thence by metes and bounds to the place of beginning. “Other Lots and Blocks designated are only proposed allotments for a supplemental Map and are only introduced to show the line of So Cal By, the proposed allotments hereafter intended to be made, surveyors marks and other important bearings. Note Colored portion only dedicated and recorded by this Map. ’ ’ The boundaries so described are colored red, this map differing from the first one in that the dotted line which is the westerly course is entirely instead of partly colored. Under the word “Dedication” the map also shows the following : ‘ ‘ The Manhattan Beach Company, a corporation, hereby declares that it is the owner of that portion of the lands embraced in the annexed plat lying within the colored border line thereon; that it has caused the same to be surveyed and platted and that it does hereby dedicate as public thoroughfares all of those portions marked thereon as Streets, the Strand, alleys and public grounds, not heretofore deeded for Street Car purposes. ...”

At the opening of the trial the respondents filed a written disclaimer of any interest in the land which is shown on the 1901 map as lying between the dotted line and the electric railway right-of-way. This is a wedge-shaped strip extending from the southerly boundary of the land originally owned by Manhattan Beach Company, at which point it is about eight feet in width, approximately 1100 feet to the north where the dotted line meets the westerly boundary of the right-of-way. The respondents also disclaimed any interest in a piece of beach land shown on the 1902 map which had been conveyed to the city by deed some years before.

Concerning the claim of the city that the property in controversy had been dedicated to public use by the recordation of the two maps, the trial court found that so much of it as is shown on the 1901 map was “depicted upon said map as lying wholly outside said tract and likewise as being wholly outside the area dedicated and recorded by said map. . . . It was not the intention of said Manhattan Beach Company to include or to show any part of the property in controversy upon the recorded map of such tract, nor did it do so. It was not at any time the intention of said Manhattan Beach Company, either by the filing of such map for record or otherwise, to dedicate or offer to dedicate to or for public use any part of the property now in controversy, nor did it do so. Neither the recordation of said map nor any other act or thing done in connection therewith constituted either a dedication or an offer to dedicate the property in controversy or any part thereof to or for public use.” A finding concerning the map filed in 1902 states the same conclusions in almost identical language.

The appellant challenges the sufficiency of the evidence to support these findings. It contends that the maps are ambiguous and that it is the duty of this court to construe them without reference to the construction placed upon them by the trial court. However, the true rule in this. regard was stated in the case of Kautz v. Zurich General Ins. Co., 212 Cal. 576, 582 [300 Pac. 34, 37], where this court said: “The construction given the instrument by the trial court appears to be consistent with the true intent of the parties and where that is the case the appellate court will not substitute another interpretation although the latter seems equally tenable. ’ ’ But the findings of the trial court in this • case need not be measured by that rule because the record shows that evidence was received concerning the extent of the land locally known as “The Strand” at the time of the recordation of the two maps. Therefore, the findings of the trial court concerning the land offered for dedication by the maps rests in part upon evidence other than what is shown by the maps themselves.

To constitute a dedication of land for public use there must be an offer by the owner to appropriate it for such purpose and the intention so to do must be clearly and unequivocally manifested. This is the vital principle of dedication. It was stated in the early case of Harding v. Jasper, 14 Cal. 642, 648, and has been consistently followed since. {Smith v. San Luis Obispo, 95 Cal. 463 [30 Pac. 591]; Niles v. City of Los Angeles, 125 Cal. 572 [58 Pac. 190].) Therefore, unless the maps recorded by Manhattan Beach Company and the evidence before the trial court in connection therewith show that clear and unequivocal intention on the part of the owner of the property which the law demands, they passed no title to the property in controversy.

The appellant contends that the data on the two maps compel a holding that Manhattan Beach Company clearly intended to dedicate the property in controversy to public use; that each map embraces all land between the line of mean high tide shown thereon and the easterly boundary of the tract owned by the company; that the dotted line extending between the stakes at the southwesterly and northwesterly comers of each subdivision is a transit or meander line and was not intended to indicate any boundary; and that the colored lines imposed upon portions of the dotted line on the 1901 map, even if it be deemed that they were completed, only follow this transit or meander line. The respondents, on the contrary, assert that the maps and the data appearing upon them, together- with the evidence which was received to show the location of “The Strand”, abundantly support the findings of the trial court.

A comparison of the maps shows that they are substantially the same so far as the method of describing the property to be subdivided and the form of the dedication clause is concerned. The description on each is by metes and bounds and includes a statement that “other lots and blocks designated” are shown only as “proposed allotments for a supplemental map ’ ’. Each description is further qualified by the statement that “Colored portion only dedicated and recorded by this map”. The two maps without question were prepared and recorded in order to plat in two subdivisions the entire parcel of land shown on each of them. The same westerly boundary line is described as the boundary for each subdivision and the maps may properly be construed together to determine the intention of the dedicator.

One of the principal grounds urged by the city in support of its claims is the fact that “The Strand” is named in each dedication clause. The respondents’ answer to this contention is that “The Strand” was dedicated only if it lies within land particularly described and bordered as a subdivision. In this connection they claim that the maps and the evidence received in connection with them show that at least a part of “The Strand”, as it was known at the time of the recordation of the maps, was within the described boundaries of the proposed subdivisions, and that the language in the dedication clause referred to that land and not to the part of the beach which is here in controversy.

Although it is true that ordinarily the terms high water line and high water mark are synonymous (F. A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 442 [150 Pac. 62]), in this ease the dedicator used them as referring to two different points on its land and made its maps accordingly. A solid meander line and a dotted straight line are shown on each map. Although the distance between them is not stated in feet it may be estimated by the scale of the map as being 50 feet or more. Obviously the solid line was intended to define the sinuosities of the ocean’s shore. The dotted line is a straight line between surveyor’s marks shown on the map and mentioned in the metes and bounds descriptions. They are given different names, which is some indication that the map-maker considered them as representing different positions on the land. Also, the lines representing the northerly and southerly boundaries of the property owned by the dedicator and shown on each map, extend to the dotted line but not to the meander line. The land shown on each map between the dotted line and the solid line has no indicated northerly or southerly boundary. All of these facts clearly and consistently point to an intention on the part of the dedicator to make the westerly boundary of each subdivision a surveyed line easterly of and at a distance from the high tide line named in the conveyances to it. Although doubts and conflicts appearing upon a map prepared and recorded by the owner of real property for the purpose of creating a subdivision of it are to be construed most strongly against him (Larkey v. City of Los Angeles, 70 Cal. App. 635, 641 [233 Pac. 991]), the law has never allowed private property to be taken for public purposes except upon clear and unequivocal proof of an intention to dedicate it for such use. (Niles v. City of Los Angeles, supra.) “It is not a trivial thing to take another’s land, and for this reason the courts will not lightly declare a dedication to public use.” (San Francisco v. Grote, 120 Cal. 59 [52 Pac. 127, 128, 65 Am. St. Rep. 155, 41 L. R. A. 335].)

The appellant contends that the findings of the trial court ignore the words “The Strand” shown as a legend between the solid and dotted line of each map and included in the dedicatory clauses. However, the evidence received by the court in connection with the maps shows that at the time they were recorded the right-of-way had .been conveyed but the electric railroad had not been built; that “The Strand” was then locally known as the land extending from the westerly tier of lots in each subdivision to the high tide line; that at this time there was a walk adjoining the railroad right-of-way on the east which was signposted “The Strand”, and that this walk has been so designated on maps subsequently prepared by the city. When the maps are read in connection with this evidence, the descriptions of property on each, and the respective dedication clauses, they compel the conclusion that only the portion of “The Strand” lying east of the dotted line was dedicated to public use. Although between the northerly and southerly boundaries of the subdivision created by the 1901 map the dotted line is not colored for its entire distance, this is of no consequence when all the evidence bearing upon the question is considered. None of “the land embraced in this plat of Manhattan Beach” lies westerly of the dotted line, according to the metes and bounds description, and when all the data on the map are considered as a whole, nothing is presented from which an inference may fairly be drawn that the Manhattan Beach Company intended to appropriate the property lying between that surveyed line and the high tide line to the use of the public. Without such an intent there can be no dedication.

The case of City of Los Angeles v. McCollum, 156 Cal. 148 [103 Pac. 914, 23 L. R. A. (N. S.) 378], which is strongly relied upon by the appellant, decides a question dependent upon the intention of the person who recorded the subdivision map construed in that ease, to dedicate for public use a certain piece of land which was not marked as a street. It was 0 there held that the trial court was authorized, if not bound to conclude, from an inspection of the map that this land was intended as a public highway. The same thing may be said of the land shown by the maps in this case as lying between the railway right-of-way and the westerly tier of blocks. But the McCollum case presents neither reason nor authority for a holding that land lying without the limits of a proposed subdivision as shown on a map and also not included within the metes and bounds description of it, is offered for dedication. Likewise, in the case of Gross v. City of San Diego, 125 Cal. App. 238 [13 Pac. (2d) 820], there was no question whether the land there in controversy lay within or without the exterior boundary of the subdivision which was created by recording a map of it. The contentions of the City of Manhattan Beach concern the boundary line of the proposed subdivision. The fact that certain land is unmarked and not within areas shown as private property does not evidence any intention on the part of the landowner to dedicate it for public use where it is not included within that portion of the entire tract which the recorded map, by drawing and description, designates as a subdivision carved out of the larger piece.

As the second ground for the reversal of the judgment, the appellant claims that an implied dedication of the property in controversy was made by the predecessors in title of the defendants. Specifically, it is the contention of the city that the acts of Manhattan Beach Company in the years 1901 to 1904, inclusive, unequivocally manifested an offer to dedicate the beach land to public use for park and playground purposes, and that the finding of the trial court to the contrary is not supported by the evidence. The evidence relied upon by the city to establish such dedication consists principally of representations made by salesmen of Manhattan Beach Company to prospective purchasers of lots in the subdivisions. Certain acts of the subdivider which concern the use of the land are also relied upon in this connection.

Apparently about the time the subdivision maps were recorded the company commenced a campaign to sell its lots. This was before automobiles were in common use and Manhattan Beach, strange as this now seems, was quite inaccessible *to Los Angeles, which had barely started its phenomenal growth. Until 1904, when the Pacific Electric Railroad was completed, the only means of transportation to Manhattan Beach was by the Santa Pe Railroad. Excursion parties were organized for prospective purchasers, and they were taken to the property by train. Maps of the site were distributed on the train, and at the property salesmen pointed out to the excursionists the advantages of the various lots which the company had for sale. Apparently three different maps were used in the sales campaign. One seems to be an exact copy, reduced in size, of the platted area shown on the subdivision map recorded in 1901, but the metes and bounds description, the dedication clause, and the colored boundary do not appear on it. Another is almost the same except that the meander lines along the beach are unmarked and the dotted line is not given. On the back of this map there is a summary of the advantages of the new community, one being "a beach that is unsurpassed for velvety smoothness”. The third map is the same as the one just described, but the advertising on the back is different. On this map the natural conditions surrounding the property are said to include a “wide sandy beach that cannot be equalled for safety and smoothness”.

Several persons who purchased lots in those early years testified that they were shown the map first described, and that certain representations were made to them concerning “the Strand”. According to the testimony of these witnesses, one was told that “the beach would always be for the use of the people of Manhattan”. To another the salesman said that “the Strand was dedicated to the public”. A third witness recalled that the salesman assured him “that there will be no buildings allowed on the Strand, except a bathhouse which the company is going to erect for the benefit of the public and the purchasers of lots”. Another witness declared that he asked the salesman “about dedication of that property from the lots shown on this map fronting what is designated on the map as the Strand. I told him that I would not consider buying any of those lots down there unless that Strand and all the property between those lots I have just referred to and the ocean would be forever open to the public, nothing would be put on them”. According to the witness, the salesman replied that the land “was dedicated from those lots that are shown on this map clear to the water and that nothing would ever be put on there except the railroad” which then had not been built.

In addition to this evidence, the city proved that from at least 1900 the beach has been used by the public generally for bathing, fishing, and general recreation purposes. It was admitted that there were comparatively few people along the beach in those early years, but those who came were never interfered with in any way. As a matter of fact, Mr. Cortelyou testified that they invited people to use the beach, “advertising the invitation extensively”. In 1903 the Manhattan Beach Company constructed a bathhouse on the beach and also built some picnic booths “designed to constitute an invitation to the public to use the beach”. Signs were placed on these structures reading, “Private property; permission to pass over revocable at any time”, but no similar signs were placed elsewhere on the beach, nor was it ever roped or fenced off. Prior to the commencement of this suit the public has roamed over the beach at will.

This evidence, the city contends, should be considered as if no map had ever been recorded and as sufficient in itself to show an offer to dedicate the beach and an acceptance of that offer. However, a clear distinction must be drawn between the effect of representations made to prospective purchasers of lots in the subdivisions and the legal situation resulting from the general use of the property by the public without objection from the owners. Also, it must be remembered that this is an action by the city to establish a dedication of property for public use. The rules concerning dedication and those which define the rights of those who purchase property with representations that certain streets or other areas are or will be assigned for the benefit of the public are quite different. Much of the confusion in the reported cases is due to a .failure to recognize that one who has bought property from a sub divider may have» rights which the courts will enforce although there has been no dedication for the use of the public generally. (County of Inyo v. Given, 183 Cal. 415 [191 Pac. 688]; Eltinge v. Santos, 171 Cal. 278 [152 Pac. 915, Ann. Cas. 1917A, 1143],) Cities or counties seeking to establish a dedication stand in an entirely different position from that of an individual who brings an action to quiet title to a private easement.

The City of Manhattan Beach relies strongly upon the case of Phillips v. Laguna Beach Co., 190 Cal. 180 [211 Pac. 225], but the facts upon which that decision was made are essentially different from those which are here shown. In that case, the defendant created a subdivision by recording a map which showed • certain blocks divided into lots, and other rectangular-shaped areas numbered as blocks but not otherwise marked. Within a few days after this map was recorded, the corporation passed a resolution that within this subdivision certain property which was particularly described “shall be reserved for park purposes”. It also advertised that “the entire ocean frontage” had been reserved for a park. It was held that the land described in the resolution, which did not include all the areas marked only as blocks situated along the ocean frontage, had become a public park upon the ground that the resolution was a present offer to dedicate the land described and that the offer had been accepted by the public. Had the representations of the subdivider been held to have amounted to an offer to dedicate, “the entire ocean frontage” would have been included in the park, which the court limited to the area described in the resolution. There is nothing in this decision to support the claims of City of Manhattan Beach that representations made by a subdivider are sufficient to constitute an offer of dedication. On the contrary, the court came to an exactly opposite conclusion.

A somewhat different situation appears in the case of Venice v. Short Line Beach Land Co., 180 Cal. 447 [181 Pac. 658], There it was shown that the subdivider had made a tentative map upon which the strip of land in dispute was designated as an alley or street. Thereafter, a map was filed upon which it was marked as lot 38. The record showed that in making sales of lots, the subdivider represented to several of the purchasers that this strip would be left open for a public street. Houses were afterward built upon the lots on each side of “lot 38”, several of the owners placing sidewalks on the land which they considered to be a public way, and it was used as such for nine years preceding the trial of the action. The evidence showed that vehicles had no other means of access to the buildings on one side of the land used as a street. ‘ ‘ This evidence, ’ ’ the court said, ‘ sufficiently shows the intention of the owners that this strip of land should be used by the public as a public street or alley for the convenience and benefit of the public and the owners of lots abutting thereon.” But “this evidence” is not limited to the representations of the subdivider. It includes the improvement and use of the street for many years in a manner wholly inconsistent with the retention of private ownership, and the fact that the street provided the only means of access to some of the lots. The decision is, therefore, not controlling upon the issues presented by the City of Manhattan Beach.

Acts of a landowner from which the law implies a dedication of his property for public use as a street do not always lead to the same result where land is used for other purposes. This is very clearly illustrated in the case of F. A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436 [150 Pac. 62], There the city claimed that it had acquired title to a strip of land several hundred feet long adjoining a sand beach extending to the line of ordinary high tide. For many years, that portion of the property in controversy which was situated next to the beach had been used by the public for bathing and general recreation purposes. The other half was in use as a public highway or esplanade, and several years before the city had improved it with pavement.

In this case it was held that the improvements made by the city so changed the character of the land used as a highway as to render it unfit for any other use and that the city had become the owner of at least an easement “coextensive with the use made by it under its authority”. But the evidence concerning the use of the other part of the land required a different conclusion, the court held. This land had not been improved and presented the same appearance as the beach along the high tide line. For many years the public had used it in the same manner as the adjoining beach. The owner never made any objection to this use of its property, and the city enforced ordinances regulating public beaches upon it as well as upon the land closer to the water.

“This evidence”, the court said, “was not sufficient to establish the city’s ownership of a prescriptive right in the land. The use by the public would not vest an interest in the city for the reason, among others, that the use was by the public generally, not merely by the inhabitants of Santa Cruz. The mere fact that the city passed ordinances regulating the use of its public lands and that its officials undertook to enforce those ordinances on private property certainly falls far short of fulfilling the requirements of an adverse possession. . . . But beyond all this, we think the evidence was not such as to support a finding of dedication. In order to constitute a valid dedication, there must be an intention on the part of the owner to devote his property to the public use. (California Nav. Co. v. Union Transp. Co., 126 Cal. 433 [46 L. R A. 825, 58 Pac. 936]; Niles v. Los Angeles, 125 Cal. 572 [58 Pac. 190].) It is true that this intent may be inferred from long acquiescence in a use by the public. (13 Cyc. 455.) But where land is uninclosed and uncultivated, the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on the part of the owner, rather than to his intent to dedicate. (13 Cyc. 484.) This is more particularly true where the use by the public is not over a definite and specified line, but extends over the entire surface of the tract. (13 Cyc. 484.) It will not be presumed, from mere failure to object, that the owner of such land so used intends to create in the public a right which would practically destroy his own right to use any part of the property.”

Application of these principles to the facts presented by the City of Manhattan Beach indicates clearly that the representations of the subdivider did not amount to an offer of dedication, and, in any event, that there was no acceptance of such an offer. The evidence also shows that the deed made by Manhattan Beach Company to each purchaser of property referred to a recorded map; hence the grantee took with notice that the portion of “The Strand” lying westerly of the dotted line shown on that map had not been dedicated. The declarations that are said to have been made to individual buyers of lots conferred no rights upon the public and no dedication resulted from them.

The Manhattan Beach Company claimed title to the strip of beach and exercised acts of dominion over it long after the recording of the two maps and the making of the representations testified to by the several witnesses; this is shown by deeds which were later executed conveying certain portions of, and in one instance, all of the land. In 1907 the company gave the county of Los Angeles a deed to a strip of land- extending 20 feet on each side of the center line of Center Street, the main east and west street of the village, and the prolongation thereof to the Pacific Ocean. In 1909 a small parcel lying at the extreme southerly end of the strip of beach was conveyed to the city of Hermosa Beach. This deed described the property conveyed as being bounded on the west by the Pacific Ocean. In 1912, the corporation conveyed to the respondent Cortelyou a large number of lots in each subdivision and also the strip of beach land, which is described as being bounded on the west by the Pacific Ocean. In the same year Mr. Cortelyou rented to the city a small real estate office which was located at the entrance to the pier and was used by the city manager. In 1915 the city accepted from Mr. Cortelyou a deed to that portion of the beach land extending for 100 feet on each side of the prolongation of Center Street from the railroad right-of-way “to the waters of the Pacific Ocean”. Later title to the property now claimed by the city passed from Mr. Cortelyou to the respondent Manhattan Beach Development Company, and in 1921, the latter made some plans, which were known to the then city attorney, to record a subdivision map of it.

It thus appears that long after the acts which are relied upon to establish dedication, the county of Los Angeles and the appellant accepted deeds to part of the land, and that the city asserted no title to the land which it now claims when it was dealt with by Manhattan Beach Company and its grantees as their own. These acts of the city are entirely inconsistent with its present position. They constitute a recognition of the rights of the respondents and their predecessor at the very time the city now claims it had acquired title by dedication, and are at least an interpretation by conduct of the dedication clauses on the maps. (City of Oakland v. Oakland Water Front Co., 162 Cal. 675 [124 Pac. 251].)

The appellant also claims that each of several rulings of the trial judge upon the admission of evidence is erroneous. First, it contends that it should have been allowed to offer evidence concerning the general reputation that the property had been dedicated. This contention cannot be sustained. “A public highway cannot be proven by showing that it was generally reputed to be a public highway. ’ ’ (Shepherd v. Turner, 129 Cal. 530 [62 Pac. 106].) Its second point concerns the admission of evidence showing the payment of taxes upon the property by the respondents and their predecessors. Such evidence does not raise an estoppel (Lantz v. City of Los Angeles, 185 Cal. 262 [196 Pac. 481]) and is not sufficient to rebut the proof of dedication if the proof is otherwise sufficient (City of Venice v. Short Line Beach Co., supra), but the record shows that it was received for the limited purpose of showing conduct consistent with the ownership of the property. There was no error in that ruling.

The appellant also asserts that the court erred in refusing to receive into evidence the declarations of John A. Merrill, made in 1925, that the Manhattan Beach Company, of which he was president at the time the subdivision maps were filed, had dedicated the land. The corporation did not own the land at the time Mr. Merrill made the proffered statement, which therefore was inadmissible for any purpose. The acts and declarations of a grantor made after he has parted with title are uniformly held to be incompetent (People v. Southern Pac. R. R. Co., 68 Cal. App. 153 [228 Pac. 726]), and a fortiori this principle applies to a former officer of a grantor corporation. (Ferguson v. Basin Consolidated Mines, 152 Cal. 712 [93 Pac. 867]; 10 Cal. Jur. 1092.) This rule is especially applicable when the declaration is made out of the presence of the adverse party. (Rocha v. Rocha, 197 Cal. 396 [240 Pac. 1010].)

The judgment is affirmed.

Curtis, J., Waste, C. J., Langdon, J., and Seawell, J., concurred.


author: SEAWELL, J.

text:
    [L. A. No. 16422.
    In Bank.
    February 16, 1938.]
    UNION FLOWER MARKET, LTD. (a Corporation), Appellant, v. SOUTHERN CALIFORNIA FLOWER MARKET, INC. (a Corporation), et al., Respondents.

      Lorrin Andrews, Fred W. Heath and Montgomery G. Rice for Appellant.
    J. Marion Wright, Biby & Biby and John B. Biby for Respondents.
   SEAWELL, J.

This is an appeal from a judgment on the pleadings in favor of defendants.

The defendants contend that the appeal should be dismissed or the judgment affirmed for failure of appellant to present a proper record on appeal. Section 950, Code of Civil Procedure, provides that on appeal from a final judgment the appellant must furnish the court with a copy of the judgment roll, certified by the clerk or the attorneys (sec. 953, Code Civ. Proc.). By section 670, Code of Civil Procedure, it is provided that the judgment roll includes the pleadings. The answer is not included in the record filed in this court in the instant case. But where judgment has been entered for defendants on the pleadings the sole question is whether the complaint states a cause of action. (Hibernia Sav. & L. Soc. v. Thornton, 117 Cal. 481 [49 Pac. 573]; Shanley v. American Olive Co., 185 Cal. 552 [197 Pac. 793]; Elmore v. Tingley, 78 Cal. App. 460 [248 Pac. 706].) The appeal will not be dismissed for failure to include in the record on appeal a part of the judgment roll not material to determination of the appeal. (Paige v. Roeding, 89 Cal. 69 [26 Pac. 787].)

The judgment for defendants on the pleadings, according to its recitals, was entered upon “the complaint as amended by interlineation”. On the complaint as copied in the record herein the interlineations appear as interlineations, bearing the initials of the trial judge in the margin. The clerk’s certificate, by which the papers constituting the judgment roll or clerk’s transcript are authenticated (sec. 953, Code Civ. Proc.), recites that said transcript contains a full, true and correct copy of the complaint and other instruments contained therein “together with the endorsements on said documents as the same now appear on file and/or of record in this office”. The amendments by interlineation are endorsements on the complaint as originally filed.

It is true that in its notice to the clerk to prepare the transcript the plaintiff asked that there be included in the transcript “plaintiff’s complaint filed herein on April 23, 1934”, without adding the words “as amended by interlineation”. But it affirmatively appears from the record that the complaint included therein is the complaint as thus amended upon which judgment was entered.

The clerk included in his transcript a copy of the minute order granting the defendants’ motion for judgment on the pleadings. This order is not part of the judgment roll as defined by section 670, Code of Civil Procedure, and hence could not be authenticated by the clerk or properly included in the clerk’s transcript (Martin v. Pacific Elec. co., 195 Cal. 544 [234 Pac. 321]; Totten v. Barlow, 165 Cal. 378 [132 Pac. 749].) But since it appears affirmatively from the judgment that said judgment was entered pursuant to the granting of defendants’ motion, it is not necessary that the order itself be included in the record on appeal. (Weeks v. Garibaldi South Gold Min. Co., 73 Cal. 599 [15 Pac. 302].) We conclude that without the minute order plaintiff has presented a sufficient record for determination of the appeal herein as a judgment roll appeal. Furthermore, the clerk’s certificate is followed by a certificate of the trial judge, which authenticated the minute order. (Pierce v. Works, 171 Cal. 684 [154 Pac. 852]; Lake v. Karris, 198 Cal. 85 [243 Pac. 417]; Beck v. Barnes, 129 Cal. App. 187 [18 Pac. (2d) 749].)

The defendants in-this action are Southern California Flower Market, Inc., a corporation, and four individual defendants who are alleged to be directors and executive officers of defendant corporation and to have a large financial interest therein. Defendant corporation and plaintiff corporation are both engaged in the wholesale florist business in the city of Los Angeles. The wholesale flower market in said city is located on Wall Street, between East Seventh and East Eighth Streets. Plaintiff alleges that it is necessary that wholesale florists have their stands in this area to enable them to market their flowers.

Plaintiff was a lessee of the premises known as 743 and 745 Wall Street. Defendant occupied adjoining premises. The charge of fraud against defendant corporation is that, through its officers and directors, it proposed that plaintiff and defendant consolidate, and falsely and fraudulently represented that it was “fully authorized” to “effect a consolidation” with plaintiff. Under said consolidation members of plaintiff corporation would be received as members of defendant, with full rights and privileges, including stalls for exhibition and sale of flowers. Relying on this representation plaintiff disposed of its leases, vacated the premises and secured the consent of its members to consolidation. Plaintiff prays for compensatory damages in the sum of $250,000 and exemplary damages in the sum of $50,000, alleging that it has been forced to rent an inferior place of business outside the above-described flower market area and thereby has lost a number of its members.

It appears from the complaint, however, that plaintiff knew, by reason of representations alleged in the complaint to have been made to it, that defendant corporation was not “fully authorized” to effect a consolidation. It is alleged that defendant officers and directors promised plaintiff that they “would use and exert their utmost efforts to secure the consent of the members of Southern California Flower Market, Inc. [defendant], to the consolidation”. This allegation refers to a consent thereafter to be obtained. It thus appears affirmatively from the complaint that plaintiff corporation was informed that the defendant corporation had not yet secured the consent or authorization of its members to effect a consolidation. The complaint fails to state a cause of action against defendant corporation.

As to the individual defendants a different question is presented. We have referred above to the allegation that defendant officers and directors promised plaintiff that they would use and exert their utmost efforts to secure the consent of the members of defendant to the proposed consolidation. It is alleged that this promise ivas made by the individual defendants “in their individual capacities”, and that it was made without any intention to perform the promise, and for the purpose of destroying plaintiff as a rival in business of defendant. It is also alleged that the individual defendants falsely represented that “there could be no doubt but that Southern California Flower Market, Inc., would so receive said members [i. e. of plaintiff] ”.

After plaintiff, in reliance on said promise and representation, had surrendered its leases and ceased to function as a competitor of defendant corporation, the individual defendants refused to carry out their promises, it is averred. They refused to permit the members of plaintiff to become members of defendant, and “did not use or exert their utmost or any efforts to secure the consent of the members” of defendant to consolidation, “but on the contrary said defendants urged the members of the said Southern California Flower Market, Inc., not to consent to consolidation of said markets and to refuse membership to tire members of Union Flower Market, Ltd. [plaintiff] ”.

A promise made without any intention of performing it constitutes fraud. (See. 1572, subd. 4, Civ. Code; Lawrence v. Gayetty, 78 Cal. 126 [20 Pac. 382, 12 Am. St. Rep. 29]; Lundblade v. Boyes, 101 Cal. App. 741 [282 Pac. 399]; Snyder v. City Bond Finance co., 106 Cal. App. 745 [289 Pac. 859]; Benson v. Hamilton, 126 Cal. App. 331 [14 Pac. (2d) 876]; Wilson v. Rigali, 138 Cal. App. 760 [33 Pac. (2d) 455].)

The allegations as to the promise of the individual defendants herein to exert their utmost efforts to secure consent of the members of defendant corporation to a consolidation, made without any intention of performing it and for the malicious purpose of destroying plaintiff as a business rival, coupled with their alleged false representation that there “could be no doubt but that Southern California Flower Market, Inc., would so receive said members [i. e. of plaintiff] ”, constitutes an averment of actionable fraud on the part of the individual defendants. It is true that this representation was in a sense a statement of opinion. But a false statement of opinion fraudulently made may form the basis of an action, as where the party making it possesses superior knowledge or special information regarding the subject-matter of the representation. (Russell v. Roscoe, 106 Cal. App. 293 [289 Pac. 185]; Sears v. Myerson, 106 Cal. App. 220 [289 Pac. 173]; Eade v. Reich, 120 Cal. App. 32 [7 Pac. (2d) 1043]; Antognini v. Grandi Co., 89 Cal. App. 628, 645 [265 Pac. 378].) In the instant case the individual defendants, as directors, officers and holders of a large financial interest in the corporation, had superior means of ascertaining and influencing the views of the members of the corporation concerning a consolidation.

The judgment on the pleadings in favor of defendants is affirmed as to defendant corporation. As to the individual defendants it is reversed. As to said individual defendants, the nonappealable minute order for judgment on the pleadings in so far as it relates to them will fall Avith the reversal of the judgment entered thereon.

Houser, J., Shenk, J., Waste, C. J., Langdon, J., Edmonds, J., and Curtis, J., concurred.