Until an entry on behalf of the inhabitants of the town of Red Bluff is made, or a patent of the General Government is issued for the benefit of such inhabitants, the defen[423] dants will not be in a position even to contest the efficacy of the patent to Doll. As we said in Doll v. Meador, 16 Cal. 331, "until some one appears prepared to trace title to himself from a common or paramount source, parties who are clothed with the solemn evidence of title furnished by the patent of the State may rest in security, without fear of any successful disturbance in the enjoyment of the property held by them, whether that property be a portion of the school lands or swamp lands granted to the State by the General Government."

As appears from the report of the case from which this citation is made, the time within which, under the Act of Congress of May 23d, 1844, an entry could be made for the benefit of the inhabitants of the town of Red Bluff, had expired years before the patent to Doll was issued.

The difficulty, however, with the present case is that no appeal lies from the order of the Court. It is not an injunction against parties in another action; it is a simple order staying proceedings in the same action. The remedy of the plaintiff is not by appeal, but by application for a mandamus to compel the Court to proceed.

Appeal dismissed.

HESTRES, ADMINISTRATOR, v. BRANNAN et al.

EJECTMENT-PROOF OF PRIOR POSSESSION.-In an action of ejectment where the plaintiff relied upon prior possession, his proof showed that several years before defendant's entry he inclosed the premises with a fence, and afterwards, and until the adverse entry, cultivated the inclosure by raising and gathering crops thereon: but there was no direct proof of the character of the fence or its efficiency: Held,

Cited as authoriiy in Polack v. McGrath, 32 Cal. 20; and see Wolf v. Baldwin, 19 Cal. 315; Hutton v. Schumaker, post 453; Davis v. Perley, 30 Cal. 638; Brummagim v. Bradshaw, 39 Cal. 44; Walsh v. Hill, July T. 1871 (not reported.)

that the possession was sufficiently proved; that the use of the property for a series of years, for purposes requiring an inclosure, was enough to show that the inclosure was a suitable one for those purposes, and sufficiently substantial to protect the premises.

APPEAL from the Fifth Judicial District.

The facts are sufficiently stated in the opinion of the Court.

Brown & Graves, for Appellants.

*Where a title to land rests in acts in pais, one of [424] which is a substantial inclosure, the party, to make out his title, is required to show affirmatively the character of his inclosure, in order that the Court may see whether or not it is substantial and therefore sufficient (Wolf v. Baldwin, 19 Cal. 306; Plume v. Seward, 4 Id. 96; Murphy v. Wallingford, 6 Id. 649; Humphreys v. McCall, 9 Id. 64; Wright v. Whitesides, 15 Id. 47; Garrison v. Sampson, Id. 95; Corryell v. Cain, 16 Id. 572; Preston v. Kehoe, 15 Id. 318.)

John B. Hall, for Respondent.

COPE, J. delivered the opinion of the Court-NORTON, J. concurring.

This is an action brought by the plaintiff's intestate, Comstock, to recover a tract of land in the county of San Joaquin. A judgment was recovered by Comstock, who died soon afterwards, and Hestres, the administrator of his estate, was substituted as plaintiff. On the trial Comstock relied upon prior possession, and the defendants contend that the evidence upon the subject was not sufficient to entitle him to recover. The land includes several hundred acres, and was used by Comstock for agricultural purposes. It was proved that he inclosed it in 1856, but the character of the inclosure was not shown, except that there was a fence. The land was cultivated prior to and in 1858, and volunteer crops were gathered from it in 1859 and 1860. In the fall of 1860 Comstock removed to Nevada Territory, employing persons to take charge of the property, and keep the fence in repair. The defendants took possession in 1861, and deny the right to possession asserted by Comstock.

The point made is that there was a failure of evidence in

regard to the inclosure. The witnesses who testified to the fence expressed themselves in general terms, stating merely that there was one, without describing it. There was no direct evidence as to its efficiency in any respect, and it is contended that in the absence of such evidence there was nothing for the jury to act upon. The argument is that

it was necessary to show an actual bona fide pos[425] *session, and that this could only be done by showing

a substantial inclosure, and a meritorious use of the property. Admitting the correctness of the argument, however, it does not follow that the evidence was insufficient, for the character of the inclosure was indicated by the nature and circumstances of the use. The use of the property for a series of years, for purposes requiring an inclosure, was enough to show that the inclosure was a suitable one for these purposes, and sufficiently substantial to protect the possession. We are of opinion, therefore, that there was sufficient evidence to establish the fact of possession; and the record discloses no error for which the verdict should be set aside.

Judgment affirmed.

HESTRES, ADMINISTRATOR, v. CLEMENTS et al.*

DEMURRER TO BE DISPOSED OF BEFORE ENTRY OF JUDGMENT.-It is irregular to enter judgment against a defendant, on whose behalf a demurrer is on file, without disposing of the demurrer, and a judgment so entered will be reversed on appeal. DEFAULT HOW WAIVED.-An acceptance by plaintiff's attorney of service of a demurrer, filed by a defendant after his default has been entered, is a waiver of the default.

APPEAL from the Fifth Judicial District.

Ejectment by Emile Hestres, administrator of Comstock against Thomas Brannan, Charles L. Clements, Andrew Har

*Referred to in Calderwood v. Tevis, 23 Cal. 335

ris, and profits.

Hopkins, to recover a tract of land and mesne

The complaint was filed and a summons issued April 7th, 1862, and on the same day the Sheriff delivered to Clements & Harris each a copy of the summons, but without a copy of the complaint. On the 24th of April a like service was made on Hopkins, and Brannan was served with copy of summons and copy of complaint, all in San Joaquin County. April 26th, the Clerk entered a defanlt against Clements & Harris, and, May 8th, against Brannan. May 5th, (the 4th being Sunday,) Clements and Hopkins each filed a demurrer, on each of which was indorsed an acceptance of service as follows: "Service of the within accepted May 5th, 1862. Terry & Bradford, attorneys for plaintiffs." On the eighth of *May, the Court overruled the demurrer of [426] Hopkins, and premising that it appeared that the other defendants had made default, entered judgment against all for possession of the premises and $2,500 damages. On the next day, the attorney for Clements and Hopkins moved, on affidavit, that the judgment be vacated, and that these defendants have leave to answer, which motion was denied, and from this order the appeal is taken.

G. W. Tyler, for Appellants.

Terry & Bradford, for Respondents.

COPE, J. delivered the opinion of the Court-NORTON, J. concurring.

The judgment in this case must be reversed for irregularity in the proceedings. When the judgment was entered, there was a demurrer on file which had not been disposed of. Two of the defendants demurred separately, and the record shows that but one of the demurrers was acted upon. The other was filed after a default had been taken, but the attorneys for the plaintiffs accepted service of it, thereby waiving the default.

Judgment reversed, and cause remanded.

HUFFMAN v. SAN JOAQUIN COUNTY.

'COUNTY LIABILITY IN DAMAGES.-A county is not liable in damages at the suit of an individual for injuries sustained by him in consequence of the want of proper repairs to a bridge on a public highway of the county.

INJURIES RESULTING FROM NEGLIGENCE.-The statute devolves upon Boards of Supervisors the management and control of bridges in their respective counties, and upon Road Overseers of the county the duty of keeping bridges on public highways in repair; and if any remedy exist for injuries resulting from neglect to keep such bridges in repair, it must be sought against the Road Overseers or Supervisors personally,

APPEAL from the Fifth Judicial District.

The facts appear in the opinion of the Court.

H. Amyx and Budd & Laspeyre, for Appellant.

[427] *I. An indictment lies at common law against a county for the non-repair of a bridge, a part of a public highway. This was so held by Lord Ellenborough, with the concurrence of all the other Judges, in the case of The King v. West Riding, Yorkshire, 2 East. 341; and he cites Lord Coke (2 Inst. 700, 701) as authority for the doctrine. (See also Glasburne Bridge case, 5 Burrows, 2594; The King v. County of Glamorgan, 2 East, 356; note to Rex v. Bucks, 12 Id. 192; Grant on Corporations, 500; 7 Q. B. 594; Ventr. 256; Rex v. Mayor, etc., of Warwick, 2 Show. 201.)

II. If a corporation be indictable at common law for the non-performance of a public duty, an action will lie at the suit of an individual sustaining special damage thereby. (See the case of The Mayor, etc., of Lyme v. Henly, finally decided in the House of Lords on writ of error; see 1 Bingh. New Cases, 222.) That case was first heard in the Court of Common Pleas, (5 Bingh. 91,) then on writ of error in King's Bench, (see 3 Barr. & Ald. 77,) and finally in the House of Lords. Before the decision in the House of Lords, certain questions were submitted to the Judges, and Park, Judge, in answering the question for the rest of the Judges, uses this strong language: "It is clear and undoubted law that when

Cited as authority in Crowell v. Sonoma County, 25 Cal. 315; and see Sherbourne v. Yuba County, ante 113; Winbigler v. Los Angeles, 45 Cal. 38; Barnett v. Contra Costa Co., 67 Cal. 78. See 54 Wis. 532.