Harrison J.
The plaintiff is the owner of a tract of land in Merced county, lying to the east of the Snelling road, and bounding upon Bear creek at the south. The defendant was the road overseer of road district Ho. 1 of Merced county, and on the 17th of January, 1889, destroyed and removed about 60 feet of a fence which extended from Bear creek northerly between the Snelling road and the plaintiff’s land, under the claim that it was an obstruction to a public road along the northerly bank of Bear creek. The plaintiff brought this action for damages for the alleged trespass, and to enjoin the defendant from further interfering with the fence. Judgment was rendered in his favor, and the defendant has appealed.
The title of the plaintiff to the land was not questioned at the trial, and the finding of the court that the land had been, for a period of more than ten years prior to January, 1889, inclosed along the Snelling road with a good and substantial fence is not excepted to. The defendant, however, sought to show that the public had traveled over this strip of land and used the same as a public highway for a continuous period of more than five years since the 10th of January, 1873, and claimed that by reason of such user it had become a public high[29] way. In this connection he stated that he did not expect to prove that the owner had shown any intention to dedicate the land as a public highway, except by showing such use, and it was admitted that no compensation had been paid to the plaintiff. Upon the objection of the plaintiff this evidence was excluded, and this ruling is now assigned as error.
The Political Code went into effect January 1, 1873, and section 2619 thereof provided that: “Hoads laid out and recorded as highways by order of the board of supervisors, and all roads used as such for a period of five years are highways.” In 1874 this section was amended by striking out the words “and all roads used as such for a period of five years,” and the section as thus amended was in force upon that subject until the entire chapter upon the subject was repealed in 1883, and a new chapter substituted in its place, by which it is declared in section 2618: “ In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges laid out or erected as such by the public, or, if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.”
As there is no claim that the road in question has been laid out as such by the public, it cannot be held to be a public highway by virtue of this section, unless it is shown to have been “ dedicated or abandoned to the public” by the owner of the land. The finding that the premises had been inclosed for a period of more than ten years prior to the alleged trespasses is inconsistent with an abandonment of them to the public, and shows that the road had not been laid out or erected over them, and it was stated by the defendant at the trial that he did not expect to prove any intention on the part of the owner to dedicate the land as a public highway, except by proving its use by the public. Unless, therefore, the road in question had become a public highway prior to 1883, the offer of proof on the part of the defendant was insufficient to establish its existence as a highway, [30] and was properly excluded. Dedication must be made by the owner of the land, and exists only when he has manifested some intention to make the dedication. “It is never to be presumed without evidence of unequivocal intention on the part of the owner.” (Quinn v. Anderson, 70 Cal. 456.)
The fact that the land had been inclosed by a fence would show that any use of it by the public was only permissive, and “ has always been considered as strong evidence in support of a mere license to the public to pass over the designated way, and in rebuttal of a dedication to public use.” (Quinn v. Anderson, 70 Cal. 456.) Private property cannot be taken for public use without compensation, either by direct proceedings for that purpose, or by a mere user on the part of the public, unless the use has been so adverse as to prevent the owner from asserting title thereto, and for this purpose it must be shown that the user was adverse. “ Where the dedication as a highway is sought to be established by user, it must appear that such user was with the knowledge of the owner, and with his consent, or without objection on his part.” (Hope v. Barnett, 78 Cal. 14.)
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Harrison J.
The plaintiff is the owner of a tract of land in Merced county, lying to the east of the Snelling road, and bounding upon Bear creek at the south. The defendant was the road overseer of road district Ho. 1 of Merced county, and on the 17th of January, 1889, destroyed and removed about 60 feet of a fence which extended from Bear creek northerly between the Snelling road and the plaintiff’s land, under the claim that it was an obstruction to a public road along the northerly bank of Bear creek. The plaintiff brought this action for damages for the alleged trespass, and to enjoin the defendant from further interfering with the fence. Judgment was rendered in his favor, and the defendant has appealed.
The title of the plaintiff to the land was not questioned at the trial, and the finding of the court that the land had been, for a period of more than ten years prior to January, 1889, inclosed along the Snelling road with a good and substantial fence is not excepted to. The defendant, however, sought to show that the public had traveled over this strip of land and used the same as a public highway for a continuous period of more than five years since the 10th of January, 1873, and claimed that by reason of such user it had become a public high[29] way. In this connection he stated that he did not expect to prove that the owner had shown any intention to dedicate the land as a public highway, except by showing such use, and it was admitted that no compensation had been paid to the plaintiff. Upon the objection of the plaintiff this evidence was excluded, and this ruling is now assigned as error.
The Political Code went into effect January 1, 1873, and section 2619 thereof provided that: “Hoads laid out and recorded as highways by order of the board of supervisors, and all roads used as such for a period of five years are highways.” In 1874 this section was amended by striking out the words “and all roads used as such for a period of five years,” and the section as thus amended was in force upon that subject until the entire chapter upon the subject was repealed in 1883, and a new chapter substituted in its place, by which it is declared in section 2618: “ In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges laid out or erected as such by the public, or, if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.”
As there is no claim that the road in question has been laid out as such by the public, it cannot be held to be a public highway by virtue of this section, unless it is shown to have been “ dedicated or abandoned to the public” by the owner of the land. The finding that the premises had been inclosed for a period of more than ten years prior to the alleged trespasses is inconsistent with an abandonment of them to the public, and shows that the road had not been laid out or erected over them, and it was stated by the defendant at the trial that he did not expect to prove any intention on the part of the owner to dedicate the land as a public highway, except by proving its use by the public. Unless, therefore, the road in question had become a public highway prior to 1883, the offer of proof on the part of the defendant was insufficient to establish its existence as a highway, [30] and was properly excluded. Dedication must be made by the owner of the land, and exists only when he has manifested some intention to make the dedication. “It is never to be presumed without evidence of unequivocal intention on the part of the owner.” (Quinn v. Anderson, 70 Cal. 456.)
The fact that the land had been inclosed by a fence would show that any use of it by the public was only permissive, and “ has always been considered as strong evidence in support of a mere license to the public to pass over the designated way, and in rebuttal of a dedication to public use.” (Quinn v. Anderson, 70 Cal. 456.) Private property cannot be taken for public use without compensation, either by direct proceedings for that purpose, or by a mere user on the part of the public, unless the use has been so adverse as to prevent the owner from asserting title thereto, and for this purpose it must be shown that the user was adverse. “ Where the dedication as a highway is sought to be established by user, it must appear that such user was with the knowledge of the owner, and with his consent, or without objection on his part.” (Hope v. Barnett, 78 Cal. 14.)
The provision in section 2619 of the code, as it was originally enacted, declaring that all roads used as such for a period of five years are highways, having been superseded by the amendment of that section in 1874, cannot be invoked as an authority for the creation of a highway by mere user. By the amendment of the section its provisions, as originally enacted, were obliterated from the statutes of the state, and the amended section was thereafter the only statutory provision upon that subject. The amendment was made by an act passed March 30, 1874 (Am. to Codes, 1873-74, p. 116), in which several other sections in relation to highways were amended, of which section 38 provides that: “ This act shall apply only to the following named counties (designating them.)” This limitation of the-section to certain enumerated counties did not, however, [31] have the effect of retaining the original section in force upon the statute book. By its amendment it was repealed, and the effect of section 38 was to limit the statutory provisions of the" amended sections to the enumerated counties, and leave the remaining counties of the state unaffected by the provisions of the Civil Code upon the subjects embraced in those sections. The constitution, article IV, section 24, declares that: “Ho law shall be revised or amended by reference to its title; but in such cases the act revised or section amended shall be re-enacted and published at length as revised or amended.” It was held in Billings v. Harvey, 6 Cal. 381, that under this provision of the constitution, “ If a statute or section of a statute is re-enacted, it is totally inconsistent with the idea that the old statute or section still remains in force, or has vitality for any purpose whatever. The re-enactment creates anew the rule of action, and, even if there was not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law, and the former stands to all intents as if absolutely and expressly repealed.” This rule of construction was afterwards reaffirmed by the court in Billings v. Hall, 7 Cal. 3; Morton v. Folger, 15 Cal. 284; Clarke v. Huber, 25 Cal. 594; Bensley v. Ellis, 39 Cal. 313; People v. Tisdale, 57 Cal. 104. When section 2619 was, in 1874, “ amended to read as follows,” the section, as it had previously stood upon the statute book, ceased to have any statutory force, and was no longer a portion of the laws of the state. The provision of section 38 of the act by which the amendment was made limited the effect of the amended section to certain enumerated counties, but did not have the effect of continuing the original section in force in the other counties. The section as amended is to be construed as if the designated counties had been specified in the section itself, and as if it had been amended to read: “In the counties of [designating them], roads laid out and recorded as highways, by order of the board of supervisors, are highways.” If the sec[32] tion had been amended in this form there would be no room for construction, or, if the amendatory act bad provided that the sections, as originally enacted, should remain in force in the remaining counties in the state the legislative will would have been manifest and upheld, since the constitution in force at that time did not prohibit local legislation. In the absence of such saving clause, however, the effect of the amendment was to make the section local in its application, and to leave the other counties of the state without any provisions in the code upon the subject. We are not unmindful of the fact that in Gloster v. Wade, 78 Cal. 407, it was held that the effect of section 38 in the amendatory act of 1874 was to leave the provisions of section 2619, as originally enacted, in force in all the counties, except those enumerated in said section 38, and to cause the provisions of the amended section to be applicable only to the designated counties, thus in effect leaving section 2619, as originally enacted, in force after it had been superseded by its amendment. This construction is, however, at variance with the provisions of the constitution, as expounded in the foregoing cases, and we must regard the constitution as of higher authority than the decision in that case, and, therefore, decline to follow it as an authority.
The suggestion that this construction of the effect of the act of 1874 would destroy the existence of a road law in most of the counties of the state, from 1874 to 1883, and invalidate all action that had been taken in those counties, loses its force upon a consideration of the Civil Code in connection with the law on this subject as it existed prior to 1873. It is well known that, prior to the adoption of the codes, it was customary for the legislature to enact special road laws for individual counties in the state, adapting the provisions of those laws to the needs of the respective counties. This mode of legislation began as early as 1858, the legislature having in that year enacted road laws for seven different counties in the state; and the general road law which [33] was adopted in 1861 excepted a large number of counties from its operation. In 1872, at the same session of the legislature in which the codes were adopted, special road laws were enacted for fifteen different counties in the state, and acts amending the existing road laws for thirteen other counties.
When the compilers of the codes made their report to the legislature they recognized the existence of these various laws, and proposed two alternative chapters upon the subject of highways, one substantially in the form as it was enacted, and another declaring that none of the provisions of the codes should affect any of the provisions of these laws, but that they should be continued in force notwithstanding the provisions of the Political Code. The legislature, however, instead of adopting either of these chapters by itself, combined the two, and added to the chapter on highways section 2757 of the Political Code, as follows: “Nothing in this chapter affects the provisions of any statute in relation to roads and highways now in force, and made applicable to one or more counties by name; but whenever any such statute is repealed, then the provisions of this chapter are applicable to the county named in the statute repealed.” When the amendments of 1874 were adopted, this section, with several others of the chapter, were retained, so that the provisions contained in these laws continued in force until 1883, when the entire chapter was revised and all special laws relating to roads were repealed. At the session in 1874, when these amendments were adopted, the special laws' applicable to the greater portion of the counties enumerated in section 38 of the amendatory act were repealed, and at subsequent sessions statutes were enacted providing special road laws for some of the same counties— Contra Costa, Sacramento, Fresno, Butte, and others. In 1876 a special road law was enacted for Lassen county (Stats. 1876, p. 539), in which “all the provisions of the Political Code in relation to highways” were made applicable to that county. Similar provisions [34] have been made in road laws enacted for other counties since 1874, San Bernardino (Stats. 1876, p. 57); Butte (Stats. 1856, p. 72); Fresno (Stats. 1878, p. 859), and others. From these facts it is apparent that it could not have been the understanding of the legislature that those provisions of the Political Code, as they were originally adopted, and as found in the sections enumerated in the amendatory act of 1874, were both in force, and unless it be held that by the amending of the sections the original ones were repealed, there would be in some of these acts contradictory and irreconcilable provisions. Under these provisions of the code it ought to be assumed that if any roads were established or improved in any of these counties during this period the work was done under the provisions of these special acts rather than under a law which was inapplicable to those counties.
The judgment is affirmed.
De Haven, J., Paterson, J., Garoutte, J., and McFarland, concurred.