Colton v. Rossi. by means of the acts of the trustees or of their commissioners for the reasons: 1. That if the law under which they are alleged to have been incorporated was that of the 11th of March, 1850, then no such officers as trustees are recognized, but it provides expressly that "for the government of every city incorporated under this act there shall be a mayor, recorder, and common council to assist, etc." The provision is for councilmen and not for trustees. Compiled Laws, 102, § 7. 2. If the incorporation was sought under the act of the 27th of March, 1850, then under the act they had no power to do the acts in question. Compiled Laws, 115, § 6. 3. Had these trustees been duly incorporated under a constitutional law, they could only have appropriated the private prop erty of the respondents to the public use according to the directions and requirements of such law. They could not themselves appoint the appraisers of the property which they had determined to take, for this would be to a great extent the trying of their own case; but they should have applied to the County Court, which could, under the terms of the law, make the appointments. Compiled Laws, 104, §§ 14-18. So that even according to the statute, the whole proceeding was extra official and void. 4. The act itself, as already determined by this Court, is wholly unconstitutional. The power to create such a corporation is legislative, and can not be conferred upon the County Court. The People v. Nevada, 6 Cal. R., 143. There was no divestiture of the respondents' title. The proceedings had all been irregular, and there had been no acceptance of the proffered compensation. If the proceedings had been merely voidable, instead of absolutely void, there was no act, on the part of the respondents, to satisfy them. Within two months after the appropriation of the land by the trustees, the respondents brought an action, in the nature of trespass, against them, in which they recovered damages and costs for about thirteen hundred dollars, of which only about two hundred and seventy dollars were ever paid. Instead of receiving compensation for their land, the respondents have been denied all but a small part of the damages thus actually adjudged to them. If the damages in that action were excessive, or if at the trial there occurred any error, there was a remedy by direct appeal, and by that only. If that action was against a supposed corporation, which in fact has no existence, as is in fact most manifest, then the whole, judgment and all, was an entire nullity, and can have no effect whatsoever upon this, or any other proceeding. There was no corporation either to give compensation or to take the land—and all is null and void. The compensation must Colton v. Rossi. have been made upon a proceeding in the regular course of law, before the appropriation to the use of the public. Com. Laws, 105, §§ 17-18; San Francisco r. Scott, 4 Cal. R., 111; McCann v. Sierra County, 7 Cal. R., 121. And the compensation must be in money; any other equivalent will be insufficient. Commonwealth v. Peters, 2 Mass. R., 125. There is no pretence of any grant from the respondents; and if there had been one, in all respects regular in form and manner of execution, still there was none to take; for it was no corporation. The last hope of a reversal of this judgment, then, rests in the assumption that there was a dedication by the respondents to public uses-and if such dedication is sustained, it must be by the express fact set forth in the case that the appropriation and use of the land by the public was without the consent of the respondents. There can be no dedication presumed against the express dissent of the owner of the land. Chancellor Kent, after a review of the cases, concluded thus: "The true principle to be deduced from the authorities, I apprehend to be, that if there be no other evidence of the grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner, in the free use and enjoyment of the way as a public road, the period of twenty years, applicable to incorporeal rights, would be required, as being the usual period of limitation. But if there were clear, unequivocal, and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandonment and dedication of the land, those acts would be sufficient to establish the dedication within any intermediate period, and without any deed or other writing." 3 Kent's Comm., 451. There can here be presumption of a grant, or dedication from the lapse of time or continuous user. The remaining question, then, is: are there any acts of the respondents evidencing a clear, unequivocal, decisive and explicit intention of permanent abandonment and dedication of the land? A negative answer is enforced by every fact in the case. The respondents almost immediately sued for the trespass-and the statement, as before mentioned, shows that the appropriation and user was against their consent. There can be no room for a presumption of consent where there is affirmatively shown to have been an express dissent. In Massachusetts it has been held that "A town may acquire a right of way by grant; and exclusive, uninterrupted user by the inhabitants for twenty years, unexplained, is evidence of a grant, but such way will be a private way, and a nuisance on it will not be indictable. A public townway can be established only in the mode prescribed by statute; and a record of the establishment of such a way can not be presumed from any user or length of time." Commonwealth v. Low, 8 Pick. R., 402. In that State, the Courts were long reluctant to recognize the Colton v. Rossi. doctrine of a dedication of a right of way in any manner. Hinkley v. Hastings, 2 Pick. R., 162. Although the English cases are more favorable to the presumption of such dedications than those of Massachusetts, yet they are more than abundantly sufficient to exclude such a presumption here. Moody v. Hayden, 1 Eng. Com. L. R., 74; The King v. The Inhabitants of St. Benedict, 6 do., 158; Wood v. Veal, 7 do., 158. The principal authorities, English and American, are collected and reviewed in 2 Smith's Leading Cases, 176, 180. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring. The town of Yreka was incorporated on the fifth of May, 1854, under the act of the Legislature of March 27, 1850. On the fourteenth of June, 1854, the board of trustees passed an ordinance for the opening of a street through the premises of defendants. The board appointed appraisers, who estimated the value at $750. This sum was tendered to defendants, but the same was refused. The defendants afterwards brought suit against the corporation to recover the damages occasioned by the appropriation of their property, in which they obtained judgment for $1050. An order was drawn upon the treasury of the town for the whole amount, including the costs; and the sum of $270 was paid, and endorsed upon the order as a payment. The remainder not having been paid, the defendants took possession of the street. This suit was brought by the plaintiffs, who owned property upon the street, to restrain defendants from erecting buildings, which would close up the street and obstruct the approach to plaintiffs' house of business. Upon this state of the case, the Court below decided that the plaintiffs were not entitled to any relief, and the plaintiffs appealed. In the case of McCann v. The County of Sierra, (7 Cal. R., 121,) we held "that compensation must be made in advance, or a fund must be provided, out of which compensation must be made so soon as the amount can be determined. The property of the citizen can not be taken from him without ample means of remuneration are provided." The compensation in this case was not made in advance, and there was no fund provided out of which the same could be paid when the amount was determined. The town was incorporated under an act decided by this Court to be unconstitutional; and the incorporation was void. (The People v. The Town of Nevada, 6 Cal. R., 143.) The defendants had no power to obtain payment, as their judgment against a supposed corporation, having no legal existence, was a mere nullity. The fund supposed to be provided, had no legal existence, as the authority creating it McGee v. Stone. had none. The only thing the defendants could do was to take MCGEE et al. v. STONE et al. Where two several mining companies agree upon a boundary-line between the claims of the two companies, and, subsequently, other parties purchase the several interests of the two companies, with a knowledge of the boundary-line so fixed, both parties are concluded by it, and are estopped from denying the line. The fact that such line was fixed by a mistake as to the true boundaries and corners, makes no difference, as the subsequent purchasers purchased with a view to this line. APPEAL from the District Court of the Fourteenth Judicial District, County of Sierra. A statement of the facts appears in the opinion of the Court. William Stewart and A. Platt for Appellants. The evidence shows that the stake was stuck at "B," after due deliberation, and was afterwards recognized by a long series of acts; that both parties had equal means of information, and that all of the present members of the Star Point Company have purchased in good faith, with a stake standing at "B," written upon, in the handwriting of Delancy, to the effect that it was on the dividing line. The learned commentator, Judge Story, says, that "where the means of information are open to both parties, and where each is presumed to exercise his own skill, diligence, and judg ment in regard to all extrinsic circumstances, in such cases equity will not relieve." Story's Equity, 149. The same author, in another place, holds the following language: "It is not sufficient, in all cases, to give the party relief, that the fact is material, but it must be such as he could not, by reasonable diligence, get knowledge of; for, if by such reasonable diligence, he could have obtained knowledge of the fact, equity will not relieve him." 1 Story's Equity, 146. The defendants, so far from being allowed to excuse their conduct by mistakes, ought to be estopped from denying "AB" to be the true line. They have induced us to purchase on the faith of their acts and declarations, and they ought to be allowed to contend that they have acted falsely from the beginning. Hastler v. Hays, 3 Cal., 306. In the last-named case, the Court says, that "The sense of estoppel is, that a man, for the sake of good faith and fair deal McGee v. Stone. ing, ought to be estopped from saying that to be false, which, by his means has become accredited for truth, and by his representations has led others to act." And upon this point, Professor Greenleaf lays down the following rule: "Admissions, whether of law or of fact, which have been acted upon by others, are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from the open or general conduct of the party. For in the latter case, the implied declaration may be considered as addressed to every one in particular who may have occasion to act upon it. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations." 1 Greenleaf on Evidence, § 207. "It makes no difference in the operation of this rule whether the thing admitted was true or false, it being the fact that it has been acted upon that renders it conclusive." Ibid., § 208. See, also, 2 Cowen & Hill's Notes to Phillipps on Evidence, 202, et seq.; 3 Selden, 218. In Rockwell v. Adams, 7 Cowen, 761, the Court hold that a practical location by a party, or his recognition of a line giving him less land than the actual courses and distances in his deed, may be valid, though he does not know at the time that it will have such an effect. To bind him, there need not be an express agreement. Acquiescence for a length of time, is evidence of such agreement; and where the lines are acquiesced in for a number of years by all interested, it is conclusive evidence of an agreement to the line. In The Same v. The Same, reported in 6 Wend., 467, the Court holds that the acts and declarations of parties, as to the location of lands, may control the courses and distances in their deeds; and to give operation to such acts and declarations, it is not necessary that their effect should be known to the parties. See, also, Jackson v. Jackson, 4 Cowen, 450. In the case at bar, the defendants established their line, and marked it in a distinct and conspicuous manner, and after nearly two years, which is longer, comparatively, in a mining locality, than twenty years is among farmers, where innocent parties had purchased and discovered gold, changed their lines so as to include the lead, and now say that they were mistaken. Jackson v. McConnell, 12 Wend., 421, is also in point. In that case, the Court say that the charge of "the (Circuit) Judge was not altogether accurate. It was calculated to impress upon the jury, that the rule of law was, that the plaintiff was not bound by the location, if it was erroneous in any respect, unless he knew of the error at the time, and expressly agreed to be bound |