ment land in Escondido Canyon, which lies approximately half way between Lechuza Canyon and Malibu Canyon, owned by Schumacher, Mellus, Gillis, and Diss, and that they have done some work constructing a private road from their claims to the beach road. No one of these presented himself as a witness in the case. It appears, then, that even before the commencement of this action Decker and Drake were the only two persons who had any use for the beach road, and the contention of appellant is that the use which they have made and are making of it is precisely the use which they have made and are making of the private road from their claims to the beach road-a permissive use for a private way under the sanction of the owners of the ranch.

Appellants further rely upon the failure of the county of Los Angeles ever to declare this road a public highway, or ever to exercise any dominion or control over it, or ever to expend any money in its maintenance, care, or betterment. It was not declared a public highway by the court of sessions under the statutes of 1850 (Stats. 1849-50, p. 200). It did not become a public highway under the provisions of the act of 1855 (Stats. 1855, p. 192), which declares public highways to be those so designated by the court of sessions or board of supervisors, or which may be hereafter so declared by the board of supervisors. Nor yet did it become a public highway by virtue of the provisions of sections 2618 and 2619 of the Political Code as they read when that code took effect in January, 1873. Nor, finally, did it become a highway by virtue of the special road laws applicable to the county of Los Angeles, found in the statutes of 1877-78 (Stats. 1877-78, pp. 6 to 17), both of which acts contemplate that the supervisors, before any such road shall be or be decreed to be a public highway shall "cause said road to be properly located and declared as a public or county road," and in this connection reference also is made to section 2621 of the Political Code, which declares that "no route of travel used by one or more persons over another's land, shall hereafter become a public road or by-way by use, or until so declared by the board of supervisors or by dedication by the owner of the land affected."

The testimony of the settlers, whose occupancy of the government lands began about 1884, is to the general effect that

CLXXIV Cal.-48

they were not disturbed by the owners of the Malibu ranch in their use of the beach road; that in many places it was, of course, no road at all. The settlers themselves, for their own convenience, made improvements in the natural conditions where it was necessary to leave the beach. The mesas were not cultivated and one could drive over them at pleasure. "In the early years there was nothing but a bridle trail. We drove where we pleased. There was no injury done. We first found a road or way marked by wagon tracks west of Encinal Canyon about 1888 or 1889. During the early years we traveled practically all the way from Malibu to Ramirez on the beach. Whatever patches of road there are which are not in hard sand have been built since that time. There were miles of the way along the Malibu ranch where, during the time we lived there, the only convenient way to travel was where the sand was made hard by the water." Such, and much more to like effect, is the concurrent evidence of plaintiff and defendants. It is to be noted that all such parts of the road as ran along the beach between high and low tideand this was much the greater part of it was not on the ranch at all. It was on tide-lands owned by the state. These natural conditions, with the slight improvement which the settlers made in them for their own convenience, continued. until after Mr. Rindge acquired title to the ranch and in 1894 erected gates-one at the easterly entrance to the ranch, the other at Malibu Canyon. From the first Mr. Rindge insisted that there was no public way upon the ranch; that the road was only a private road, permission to use which had been accorded to the settlers. He gave to them keys to the locked gates. They, or some of them, insisted that the road was a public highway, and being advised by their attorneys that the acceptance and use of keys might militate against this position, they caused Mr. Rindge to be cited before the board of supervisors for obstructing a public highway, the citation being that Mr. Rindge show cause "why a certain gate described in said summons should not be removed from an alleged public highway." Mr. Rindge at this time had spent large sums of money in building a road from the eastern boundary of his ranch to Malibu Canyon. He made answer that the gate which he was maintaining was on this privately constructed and privately owned road. He conceded the existence of the

beach road as a public highway from the eastern boundary of the ranch "to a point on the beach opposite the Malibu Lagoon." He declared that none of the neighbors "had ever been hindered or their friends from passing through, and many privileges had been given them." The result of the hearing under this citation was most inconclusive and unsatisfactory. No official action was taken by the supervisors other than an indefinite continuance. It is asserted by plaintiff that this indefinite continuance was the result of a compromise agreement by which, in effect, Mr. Rindge admitted the road through the ranch to be a public highway. On behalf of the defendants it was stoutly insisted that his admission went only to the road from the easterly line to Malibu Canyon, and that under this admission he ceased to lock the gate at the entrance to the ranch, but maintained a locked gate at Malibu Canyon. He persisted in this for some time, and the settlers, upon the other hand, broke the lock and frequently destroyed the gates. He posted signs and warnings at and near the gates. He published similar warnings in the newspapers. The form of such signs and notice was, "No passing through the Malibu Ranch is allowed. No camping thereon under penalty of the law. Shooting and hunting forbidden." Mr. Rindge, and Mrs. Rindge after him, continued these interruptions and protests with pertinacity until finally this action was brought.

It is manifest that if a public highway exists at all, it exists by prescriptive user and not by official acceptance of an offer of dedication, nor by any official recognition of the existence of the highway. Indeed it is quite plain that any county would be extremely slow to take into its charge and burden itself with the care of such a strip of ocean beach, which from the very nature of the country would have slight use and less value. In opening the waterfront of their ranch to the travel of foot and horse men the owners were but following the custom of the country. When that travel of necessity sought the mesa uplands it would have been unneighborly to the last degree to have checked it or turned it back, and the owner's failure to do so no more established an intent to dedicate a public highway than would his reception and entertainment of such a traveler overnight have established his intent that he should take up a permanent residence with him. Dedica

tion under such conditions is not to be lightly inferred. (Harding v. Jasper, 14 Cal. 642; Cerf v. Pfleging, 94 Cal. 131, [29 Pac. 417]; Niles v. City of Los Angeles, 125 Cal. 572, [58 Pac. 190].) It is quite understandable that the settlers upon the one hand, because their passage was not interfered with, may have come to the conclusion that they were traveling as of absolute right over a public way, but their belief is not at all inconsistent with the position and proof of the defendants that throughout the history of this primitive trail it was but a private way, which developed into a more or less efficient road, in the construction of which the public took no part, and the burden of which construction was largely borne by the owners of the ranch-the settlers, for their own manifest advantage, contributing some of their labor.

It follows herefrom that the findings of the court decreeing the existence of a public highway across the Malibu ranch cannot be sustained, and that the order refusing to grant defendants' motion for a new trial must be reversed. In this connection it is to be noted that the Rindges had constructed upon the uplands and away from the tidal beach a new road to Malibu Canyon. Apparently it is conceded that the beach. road as far as Malibu Canyon is or may be regarded as a public highway. But this admission or concession will not justify in and of itself a finding or declaration that the newly constructed private road is a public substitute for the original beach road.

The order denying a new trial is reversed.

Melvin, J., and Lorigan, J., concurred.

[S. F. No. 6904. In Bank.-April 7, 1917.]

DEL MONTE RANCH DAIRY (a Corporation), Appellant, v. J. S. BERNARDO, Respondent.

CONTRACT-SALE AND DELIVERY OF MILK-EVIDENCE-APPEAL.-In an action to recover damages for the breach of an alleged contract for the sale and delivery of milk, where the evidence is conflicting upon the question of the existence of the contract, the finding of the trial court will not be disturbed on appeal.

TD.-MEASURE OF DAMAGES-EXCLUSION OF EVIDENCE WITHOUT ERROR.Where in such an action the nonexistence of the contract is found on conflicting evidence, the exclusion of evidence as to the measure of damages for the alleged breach is without error.

ID. COUNTERCLAIM FOR MILK SOLD-EXISTENCE AT TIME OF ACTION— SUFFICIENCY OF PLEADING.-A counterclaim set up by the defendant in such action for milk sold and delivered is not insufficient by reason of the failure to allege that it existed at the time of the commencement of the action, as required by subdivision 2, section 438, of the Code of Civil Procedure, where it was averred that the milk was furnished within two years last past, the complaint being filed in July, the answer in December, and the transaction occurring in June, and there was no demurrer filed to the answer and the evidence as to the delivery of the milk and the price paid proven by plaintiff's witnesses without objection.

ID. ASSIGNMENT OF CLAIM EMBRACED IN COUNTERCLAIM—EVIDENCE.— In such an action it is reversible error to refuse to allow the plaintiff to show on the cross-examination of the defendant that the claim upon which he relied in his counterclaim had been assigned to a third party, who, subsequent to the commencement of the action, had sued the plaintiff for the amount thereof.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George H. Cabaniss, Judge.

The facts are stated in the opinion of the court.

Robert P. Troy, for Appellant.

Randolph V. Whiting, for Respondent.

LAWLOR, J.-The appeal was ordered to be heard by this court after judgment in favor of the defendant by the dis