strued with it. (Babcock v. Welsh, 71 Cal. 402.) It is as follows: "All public highways, once established, shall continue to be public highways until abandoned by order of the board of supervisors of the county in which they are situated, or by operation of law, or judgment of a court of competent jurisdiction." This section adds two additional methods by which an abandonment may be effected, viz., by operation of law, and by a judgment of a court of competent jurisdiction. As the findings show that the use of the strip as a public way was not abandoned by an order of the board of supervisors, it becomes necessary to determine whether the right was extinguished by operation of law; that is to say, by the application of legal rules to the facts appearing in the findings.

An act entitled "An act concerning roads in the county of Butte," approved March 20, 1874 (Stats. 1874, p. 503), provides that all roads used as such in the county of Butte for a period of five years shall be public highways. The public, having used the strip of land in question as a public way for five years prior to the passage of that act, acquired the right to use the same as a public way. (Bolger v. Foss, 65 Cal. 250; Gloster v. Wade, 78 Cal. 407.) "By taking or accepting land for a highway, the public acquire only the right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided." (Pol. Code, sec. 2631.) "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired" (Civ. Code, sec. 806); and is extinguished "when the servitude was acquired by enjoyment, by the disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment." (Pol. Code, sec. 811.) These provisions are part of chapter 3, part 2, title 2, of the Civil Code, which relates to private easements and servitudes; but they are made applicable to a public ease

ment of the character in question by section 2631 of the Political Code, supra. The reason of the law is clearly to protect the public in the use of public highways, by preventing an abandonment of the right to the use being presumed from the cessation of the use for any period less than that by which the right may be acquired. In this respect public highways are placed upon the same plane with private rights of way. The period by which the public acquired the right to the use of the right of way in question was fixed at five years by the act of 1874. This action was brought on February 11, 1888, and the use by the public of the right of way, as such, was not discontinued until 1884; therefore the period of non-user was less than five years, and insufficient to support a presumption of an abandonment by operation of law.

The fact that the land was public land of the United States at the time the right to use it as a public way was acquired, and also at the time the use of it ceased, makes no difference. The act of Congress of 1866 (sec 2477, R. S. U. S.) granted the right of way for the constructoin of highways over public land not reserved for public uses. By the acceptance of the dedication thus made, the public acquired an easement subject to the laws of this state; and the easement not having been extinguished by the operation of such laws, when the defendant acquired the title to the land, she took it subject to the easement. For illustration of the application of this principle, see De Necochea v. Curtis, 80 Cal. 397. We therefore advise that the judgment be affirmed

BELCHER, C. C., and FOOTE, C., concurred.

By COURT.-For the reasons given in the foregoing opinion, the judgment is affirmed.

Rehearing denied.

[No. 13127. In Bank.-October 14, 1889.]

J. C. PENNIE, ADMINISTRATOR, ETC., RESPONDENT, v. LAURA C. HILDRETH, EXECUTRIX, ETC., RESPONDENT, AND THADDEUS HARPER, APPELlant.

QUIETING TITLE-ACTION BY ADMINISTRATOR.-An administrator may bring an action to quiet title to real estate which belonged to his decedent. Such action may be brought by any one who has the right of possession against any one who claims an estate or interest adverse to such right.

ID. REFERENCE IN ONE COUNT OF COMPLAINT TO ANOTHER. It is a slovenly mode of pleading, which should not be tolerated, to aver in subsequent counts that certain paragraphs of the first count are true. Each count of a complaint must state a cause of action, and be complete in itself, without reference to any other count. But if separate counts are not necessary, a cause will not be reversed on this ground.

IL. PLEADING-JOINDER OF CAUSES OF ACTION-QUIETING TITLE TO SEVERAL TRACTS-SEPARATE COUNTS-COSTS.-The rights of the parties in several tracts of land may be properly adjudicated in the same action to quiet title where the adverse claimants are the same to each tract, and ought to be so adjudicated; but they should all be included in one count, and the additional cost caused by pleading them in separate counts so as to make the complaint unnecessarily long should be paid by the plaintiff. ID.-GENERAL DENIAL-DEMURRER TO ANSWER.-A general denial in an answer to an unverified complaint by an administrator in an action to quiet title puts in issue the plaintiff's title and position as administrator, and a demurrer to such answer cannot properly be sustained.

ID. SPECIAL ANSWER-EQUITABLE TITLE OF DEFENDANT DECREEMORTGAGE-DEED OF TRUST.-The defendant in an action to quiet title may specially plead that the plaintiff has only a lien, or any interest less than he claims, and that the defendant has an equitable title or any interest in the land, either paramount or subordinate to that or the plaintiff; and the decree of the court should declare the rights of the parties in the property accordingly. It is immate rial whether plaintiff's title is a mortgage or a deed of trust held as security, as the defendant would in either case have the right to a judgment declaring just what interests in the property were held by each of the parties.

ID. INSUFFICIENT ANSWER-CONTRACT TO CONVEY-DEMURRER.—An answer setting up that the defendant has a contract from the grantee of plaintiff's decedent for the purchase of the land in controversy, upon payment of certain sums of money, which does not allege that the defendant has paid any part of the purchase-money, nor show any excuse for non-payment, nor that upon a settlement of accounts with such grantee he would be entitled to any applica tion of payment upon the land, does not show any equitable title, and a demurrer to such answer is properly sustained.

ID. ANOTHER ACTION PENDING-DISSOLUTION OF PARTNERSHIP.—An allegation in the answer that another action is pending between the parties for dissolution of a copartnership and settlement of accounts is immaterial, and cannot bar the right of plaintiff to have his title or interest in the property in controversy determined in an action to quiet title.

APPEAL from a judgment of the Superior Court of Fresno County.

The facts are stated in the opinion of the court.

J. C. Bates, Henry E. Highton, and Milton E. Babb, for Appellant.

L. D. McKissick, Walter C. Graves, Wilson & Wilson, Joseph Naphtaly, and P. D. Wigginton, for Respondents.

WORKS, J.-The respondent, as administrator with the will annexed of the estate of Charles McLaughlin, brought this action to quiet the title to several tracts of land. Each tract of land in controversy is made the subject of a separate count of the complaint. Each of the counts after the first refers to the first count, and alleges that certain paragraphs therein which are necessary to the sufficiency of each count are true, instead of restating such facts. The complaint was unverified. There was a demurrer to the complaint on several grounds; among others, that the same did not state facts sufficient to constitute a cause of action, and that the several causes of action were improperly joined. The demurrer was overruled. The defendant Harper, who alone appeals, answered by a general denial, and by way of affirmative defense set up that he and the deceased Hildreth entered into a contract of copartnership for the purpose of "buying and selling cattle, and of buying and selling cattle ranches." This contract is set out as a part of the answer, and contains this clause: "The purchase of lands shall be confined to the lands in Fresno County known as the Hildreth and Jones ranches, and

the lands adjacent thereto, of which said lands said copartners have already purchased the E. J. Hildreth rancho, which now stands in the name of Thomas Hildreth, and have contracted to purchase the said Jones rancho; and it is covenanted that one undivided half of said lands now standing in the name of Thomas Hildreth shall, upon the payment to him of one half of the cost price and expenses for the purchase thereof, be conveyed by him to said Harper, on request, by good and sufficient deeds thereof, the said cost price to include interest at the rate of one per cent per month." The Hildreth ranch named in the contract is the lands in controversy in this action. It is further alleged that the plaintiff's decedent had at the time of his death no other or different title or interest in the real estate than such as he obtained by virtue of certain deeds of conveyance from said Hildreth, absolute in form, but which were in fact mortgages to secure the payment of a certain sum of money. It was also averred that an action was pending between said defendant and the defendant Hildreth's executrix for the settlement of said partnership affairs, to which the plaintiff was a party. The plaintiff demurred generally to the first count of the answer, which, as we have said, was a general denial, and also demurred thereto on the special ground that it did not "state facts sufficient to constitute a cause of action in this, that it does not allege or set forth any title or claim in or on behalf of said defendant to the real estate described in the complaint, or any part thereof, nor does the said defendant in his said first defense, as set forth in said. amended answer, disclaim any interest or estate in the property described in the complaint." There was also on the ground

a demurrer to the affirmative answer, on that it did not state facts sufficient, and on the ground. of ambiguity in several particulars specifically stated. There was also a general demurrer to the whole answer. The demurrer to the answer was sustained, and the de

LXXXI. CAL.-9