Court meets at Sacramento on Monday, fault of bail.”

November 11th.

The calendar of the November Term will be made up on October 19th, and will consist of cases from the counties of Sacramento, Yolo, El Dorado, Alpine, Amador, Placer, Nevada, Yuba, Sierra, Sutter, Tehama, Colusa, Butte, Plumas, Shasta, Siskiyou, Mcdoc, Lassen, and Trinity.

Cases from other counties may be placed on the calendar by stipulation; said stipulation to be filed with the Clerk at his office in San Francisco on or before October 19th.

“Important Land Decision.”—We publish this week, by earnest suggestion and request, an exceedingly important decision by Judge Field, rendered some time ago, but bearing most pertinently in several points upon some recent weighty cases; and we think it will be regarded with interest.

By Mr. Rolfe-Several articles on the
brief outline: The Supreme Court to consist
Judicial Department, of which we give a
of a Chief Justice and five associates, the
one having the shortest term to serve to be
their offices for twelve years; to be divided
Chief Justice; to be elected and to hold
into two divisions of three members each by
mutual agreement among themselves; one to
be the "Equity Division," and one the "Law
four to constitute its quorum, while two
Division." All to sit as a full bench, and
shall be a quorum in either division, etc.

By Mr. Stedman-To dispense with Grand
Juries.

By Mr. Tuttle-Fixing the Grand Jury at
thirteen members.

By Mr. Van Dyke-That a trial jury may contain less than twelve members, and a verdict be rendered by less than the whole number. Also dispensing with a jury in civil actions in certain cases.

By Mr. Lorne-To cause Grand Jurors to be selected from the taxpayers of the county, and hold office for one year.

October 11th, eleventh day. By Mr. Barney-Limiting the Governor's pardoning power to cases of misdeameanor, and distributing other cases between the Supreme Court, Attorney-General, and Legislature.

By Mr. Fawcett-Vesting the pardoning power in the Governor; to be exercised only upon newly discovered evidence after judg

CONSTITUTIONAL CONVENTION:-NOTES OF AMENDMENTS PROPOSED.-On October 10th the Convention, on its 10th day, became sufficiently organized to entertain propositions of amendments, and a large number were offered, from among which we select a By Mr. Hale-Changing the number of few bearing more especially upon the Judi-jurors, and that three-quarters of a jury shall render a verdict. ciary:

By Mr. Edgerton-"All terms of the Supreme Court shall be held at the seat of government, but the times of holding such terms shall be provided for by law."

By Mr. Freeman-"To permit two-thirds of the trial jurors in any case to render a verdict," and "to authorize the Legislature

ment.

By Mr. Caples-Prohibiting excessive bail, excessive fines, and the unreasonable detention of witnesses.

By Mr. Cross, and also Mr. Dean-Plans reorganizing the judiciary system.

By Mr. Smith, of Kern-An entire change in the judicial department of the State.

H

This decision is rendered upon a rehearing, granted since the first decision of the case, on March 26, 1878, (reported in Legal Record No. 2.) That decision, based upon the findings of the

court below, affirmed its judgment on the ground

of "adverse possession," in which case it was held an action for Trespass could not be maintained.

Action first commenced on January 22, 1877, in which plaintiff claimed that, being owner in fee of a certain 160 acres of agricultural land in El Dorado County, by purchase from the United States, in 1871, the defendants who were working a mining claim, called the "Northern Light mining claim," on an adjoining section, had run their tunnel into and under one of his forties. towards and near to a spring of water, which he had procured by making a tunnel of 60

answer, including the averment of verbal agreement, which was overruled, and final judgment given for defendants.

Plaintiff appealed, with a bill of exceptions, from the judgment and orders, and motions, but the judgment was affirmed.

A re-hearing was asked for by plaintiff on the ground that it should have been decided on the pleadings instead of the findings, and the demurrer sustained. That a verbal contract concerning real estate is within the Statute of Frands, and invalid; (Civil Code, sections 1624 and 1741; and C. C. P. section 1792 ;) and there was no adverse possession, but defendant's plea was of possession by agreement with plaintiff, and in subordination to it.

Respondents claiming that the action was for trespass merely and not for recovery of possession.

Charles F. Irwin, attorney for plaintiff and appellant. George B. Blanchard, attorney for defendants and respondents.

BY THE COURT.

That portion of the answer which was demurred

to, presents no defence to the action. The argreement therein set up, was in violation of the pre

emption laws of the United States, and was there

fore illegal and void. The demurrer ought to have been sustained.

Judgment reversed and cause remanded with an order to the court below to sustain the demurrer.

[Filed October 9, 1878.]

BOARD OF EDUCATION, Pl'ff and App't,"

VS.

PATRICK DONAHUE, and CHAS. E. KRAUS, No. 6083.
Dft's and Respt's.

feet at much expense, and decreasing its flow, Appeal from the Nineteenth District Court, San

and endangering its continuance, and he claimed damages$300.

Francisco.

E. D. WHEELER, Judge.

CJECTMENT FROM SCHOOL LOT.-Twenty-eight lots of 137% feet square each were selected and reserved for school lots,-and the map accompanying the report of the Commissionors who selected them, shows twenty-eight colored spaces marked 37.6(the general color of the map being white)-Held, that these in connection sufficiently indicate and identity the said lots, and of which the lot in dispute is one:-That the sai i map is the official map showing such reserved lots for public uses;-and that the Board of Education may maintain an action to recover possession of a school lot.

Defendants claim a prior mining right on the land dating back over 10 years, as a continuation of their mining claim, and that the plaintiff desiring to pre-empt the certain 40 acres, with other lands, made a verbal agreement with. them that if they would not oppose him in the pre-emption, he would, upon securing a patent thereto, at once convey to them all the gravel on the bed rock of the claim; and they, acting in good faith, did not oppose his pre-emption, and have since run their tunnel as heretofore, and with his full knowledge and consent till May 1876, for 498 feet through the bed rock at an expense of over $3,000. Had been in such adverse possession for over five years, and now pray for judgment that plaintiff be required to convey to Defendants answer by general denial, and cause them that part of the claim within the 40 acres tried without jury, and the findings are that at in question. commencement of the action plaintiff was not in Plaintiff demurred to certain portions of the possession of the land, nor so entitled ; but defend

STATEMENT OF FACTS.

Action commenced November 8, 1872, for ejectment of defendants from a school lot in Mission Block No. 21, on Mission street, corner Hermann, demanding restitution and $500 damages.

ant was in possession and had never ousted or
ejected plaintiff therefrom, or wrongfully with-
held the same. Judgment given for defendants
and against the Board on April 1, 1878.

sioners had adopted the plan or map which accompanied the report, "showing the streets so laid out, and the lots and squares selected for the above public purposes," and Motion by plaintiff for a new trial, on a state- recommending its adoption as the official map of ment which showed that this lot was in the city that portion of the city. The ordinance of the charter line of 1851, and by the provisions of ordi- Justices of the Peace, acting as a Board of Sunance 822, certain lots were selected by commis-pervisors, adopted the plan or map reported by sioners for public purposes, (among which were 28 the Commissioners and declared it to be for school uses-137% feet square each) most of "the plan of the city, in respect to the the owners of which would deed the lots to the location and establishment of streets and avecity provided the city would deed to them the bal-nues and the reservation of squares and lots for ance of their claim. public purposes" in that portion of the city.

The original map accompanying their report was also offered in evidence.

New trial denied, April 12, 1878, and plaintiff appealed from the judgment and the order,—an undertaking being woved by defendants.

John J. Williams, attorney for plaintiff and appellant. Jarboe & Harrison, attorneys for defendants and respondents.

BY THE COURT.

The action is ejectment for a lot in the Mission Addition of the city of San Francisco, and is included in the territory embraced by the Van Ness Ordinance, so-called. The defendant was in possession at the commencement of the actlon, but at the trial showed no title or right to the possession, except such as is to be inferred from the fact of possession. Judgment was entered for the defendant, and the plaintiff moved for a new trial, on the ground, amongst others, that the judgment and decision of the Court were not justified by the evidence. The motion was denied and the plaintiff appeals.

At the trial the original plan or map was produced, and on inspection there did not appear on the face of it any explicit indication in terms of the lots reserved for school purposes, or as sites for engine houses. But there appeared certain spaces marked as puolic parks or squares, with the name of each written on the face of it, and another space with the words "Hospital Lot" written upon it. There also appeared a large number of other spaces enclosed with rectangular lines, between the streets, with the figures "137-6" so placed on the map, as to indicate clearly that these figures were intended to apply to each side of these rectangular spaces. The lot in controversy appears on the map, inclosed in rectangular lines with the figures "137-6" marked on the lines. That portion of the territory included in the map, which the Commissioners, in their report, refer to as the "Potrero" is not designated on the face of the map as the "Potrero," but there appears on the face of it south of Market street, certain spaces inclosed in rec"100"200" tangular lines, with the figures marked on the lines respectively, and certain other spaces similary inclosed, with the figures"30"" 137" or "30" "100" also marked on their respective lines.

In deraigning its title the plaintiff relied upon Ordinance 822 of the Common Council of the city of San Francisco (the Van Ness Ordinance), upon Ordinance 845 of said Council, upon the order of said Council appointing Commissioners to make a plan of that portion of When the map was delivered by the Commis the city showing the streets and the lots re- sioners to the Common Council with the report, served for public use, and to select lots as there was upon it a certificate or inscription, sites for school-houses, fire engine houses, subscribed by the Commissioners, as follows: public parks, etc., also upon the "City of San Francisco, for the location and alreport of said Commissioners, the map mensions of the streets be laid out within the city or plan reported by them, the ordinance or or- limits west of Larkin and southwest of Johnson der of the Justices of the Peace exercising the streets, with the lots or grounds selected and set powers of a Board of Supervisors; adop ́ing, ap- apart for the several public uses as hereon desigproving and accepting the plan or map reported nated, made, selected and presected for the apby the Commissioners, and upon the act of the proval of the Common Council by the unLegislature of March 11, 1858, ratifying dersigned City Survey or and Commissionsaid ordinances. The Commissioners re- ers, under and in pursuance of the proported that they had selected twenty-eight lots visions of an ordinance of the Common as sites for school-houses, and that the lots so Council of the city of San Francisco, entitled, selected were 137% feet square, except those on "An ordinance for the settlement and quieting of the Potrero, which were 100 feet by 200 feet in land titles in the city of San Francisco," approved Size; and that as sites for engine-houses, they June 20, 1855; and also an Ordinance prohad selected twenty-five lots, each 30x137% feet, viding for selec ing and designating pubexcept those on the Potrero, which were 30x100 lic squares and reservations for hospitals, feet. The report also states that the Commis- are engine and school-houses, and other public

purposes, and for adopting the plan of the stree's in the western and southwestern portions of the city, according to the provisions of ordinance No. 822, and confirmatory of said ordinance No. 822, approved September 27, 1855."

At the trial the draughtsman who made the man, under the directions of the Commissioners, was called as a witness, and testified that by the direction of the Commissioners be colored certain spaces inclosed in rectangular lines with brown, and other smaller spaces, similarly irclosed, with red; that on those colored brown some of them had the figures 100," "20)” inscribed on the lines which enclosed then, while all the others had the figures "137-6 " either inscribed on the lines, or the figures 137-6" were applicable to them, as apoeired by the arrangement or plan of the map; that the lot in controversy is one of those which was colored brown, and on the lines inclosing it the figures "137-6" were inscribed and now appear on the map; that the spaces marked as public parks or squares were colored buff, and a number of smaller spaces, erclosed in rectangular lines, were colored red; that the map was made on white paper, and was not colored in any part of it, except as above described. The witness pointed out on the map twenty-eight squares enclosed in rectangular lines, and with the figures applicable to or inscribed on the lines as above stated, which were colored brown; and he also pointed out, twenty tive smaller squares enclosed in rectangular lines, which he restined were colored red. There was no contradictory evidence. On the contrary, the testimony of this witness, in its material parts, was corroborated by tuas of one of the Commissioners. These being the facts, the question to be determined is, whether they established prima facie the identity of the lots reserved for school purposes.

It is clear beyond controversy that the Commissioners selected twenty-eight lots for school purposes, all of which were iutended and were supposed to be 137 feet square, except those on the Potrero, which were intended and supposed to be 100x200 feet, and that they also selected 25 lots for the uses of the Fire Department, which were intended and supposed to be in size 30x137% feet, except those on the Potrero, which were intended and supposed to be 30x100 feet in size. We are to read the map as though it was now in the same condition as when it was delivered to the Common Council, and the evidence shows that the paper on which the map was made was then perfectly white, with certain spaces inclosed in rectangular lines, which were colored brown, and certain other smaller spaces similarly inclosed, which were colored red; that the spaces colored brown were twentyeight in number, and the smaller spaces colored red, were twenty-five in number; that all the spaces colored brown, either had the figures

"137-6" inscribed on the lines, or by the general
plan and arrangement of the map, these figures
wer applicable to the lines, except in respect to
several spaces so colored, which were situe south
of Market street, on which the figures "100," "200"
were inscribed on the lines of each respectively.
Of the smaller spaces colored red, situate north of
Market street, there are no figures on the map to
indicate the size of them; but on the lines of
those south of Market street, the figures “3)"
"137-6" are inscribed on the lines respectively,
except that several of them have the figures
"30" "100" luscribed on he line. At
tbe trial, evidence was offered by the
platatꞌff to snow what the figures in-
diced; but it was excluded by toe Court.
But, cons aered in the light of the Commissioners'
repor, there is no difficulty in reaching the con-
clusion that the figures were intended to repre-
sent feet and incbes. They report that the school
lots were 137 feet square, except those on the
Potrero, which were 100x200 feet, and when we
find those figures inscribed on the lines of 28 lots,
or applicable to them by the general plan of the
map, the presumption is that the figures were
intended to desiguate the quantity by reet and
inches. We leave out of view the notorious fact
that the greater portion of the city was laid
out into lots 137% feet square. We find, then,
first, that the general color of the mao was
white; second, that 'he Commissioners reported
that they had selected Twenty-eight lots
for school purp ses, and their certificate on
the map states that said lots are
set apart for public use as hereon designated ;"
third, there were found on the map twenty-
eight lots colored brown, with figures indicating
the size, corresponding both in numbers and size,
with the lots stated in the report to have
been selected for school purposes; fourth,
the coloring of the spaces on the map,
thus distinguishing them from the body of
the map, must have been done for some purpose;
and when considered in connection with the re-
port, it becomes apparent that the pur-
pose was to indicate that the lots so col-
ored brown were reserved as school lors.

In reaching this conclusion we imoute no force to the oral testimony admitted at the trial, except in so far as it showed that when the map was delivered to the Common Council, the map was on white paper, with 28 spaces colored brown and 25 smaller spices colored red, which spaces as it now appears on The face of the map were inclosed in rectangular lines, with figures indicating the sizes of the lots as herein before explained. Reading the map as it then was, and construing the map with the certificate thereon, in connection with the report, we are of opinion that the repert and map of themselves sufficiently identify the lots reserved for school purposes.

Nor can it be seriously questioned, we think,

Appeal from Nineteenth District Court, San Fran- three of the Commissioners; all moneys collected by