•101 to grants of the fee, and permissive occupations of land become conveyances of it. "It would shock that sense of right," Chief Justice Marshall said in Kirk v. Smith ex dem. Penn, 9 Wheat, 286, 6 L. ed. 91, "which must be felt equally by legislators and judges, if a possession which was permissive and entirely consistent with the title of another should silently bar that title." 2. This proposition arises on the following prayer given at the request of the plaintiff: "The jury are instructed that the right to an easement of common and public highway, acquired by a prescriptive use or long use of the road, is confined to the lines and width of the road as actually used for and at the end of the period of twenty years, and does not extend to a greater width beyond the width of the road so actually used, and in this connection the jury are further instructed that the planting or placing of the boundary stones mentioned in the evidence, if the same occurred within twenty years before the acts complained of, which are in evidence, would not extend such easement by prescription beyond the lines and width of such actual use." The same reason and principle applies to this as to the preceding proposition. Relying for right of way on use, the right could not extend beyond the use. Or, as it has been expressed, "if the right to the way depends solely upon user, then the width of the way and the extent of the servitude is measured by the character of the user, for the easement cannot be broader than the user." 1 Elliott, Roads & Streets [2d ed.] § 174, and cases cited. the presumptions which attend and support the acts of public officers. One of the defenses made by the District was that the road had become a highway under and by virtue of the acts of Congress heretofore referred to. As a condition of this defense it was necessary to establish that the road had been surveyed, platted, and recorded by the levy court, and it was the effect of the prayer which was requested that the performance of that duty would be presumed by the law from the fact that the road had been worked and kept in repair by the levy court. In other words, such surveying, platting, and recording would be presumed because it was the duty of the levy court to have done them under the acts of Congress. Undoubtedly the law indulges presumptions of the performance of their duty by public officers, and presumptions of the existence of circumstances which gener ally precede or accompany acts testified to and which are necessary to their validity, but such presumptions are in aid of the evidence. They are not independent of the evidence, nor raised against it. The record shows that the plaintiffs' testimony tended to establish "that the road was never surveyed, platted, or recorded as a public road, as required by law." The testimony on the part of the District was that the secretary to the governor of the District in 1871 obtained from the former secretary of the levy court what were supposed to be all of the records of the court, and turned them over to the treasurer of the board of public works, and that those records may be among the old records of the District, but witness did not 3. This proposition is based upon the mod-know; nor did he know what was among ifications by the court of the twelfth prayer requested by the District. It was as follows: "[The levy court of the District of Columbia was a corporation. Its duty, among other things, was to supervise and keep in repair the public roads of the county of Washington, and to plat, record, and mark with boundary stones such roads.] "If the jury find from the evidence that boundary stones were placed along Harewood road and at the point of the alleged trespass by the surveyor of the levy court in 1865 or thereabouts, and that thereafter said levy court worked and kept said road in repair, then [in the absence of evidence to the contrary the presumption is that] it is a question for the jury to determine whether said levy court caused said road to be surveyed, platted, and recorded as a public highway in accordance with the act of Congress [requiring the same to be done, and such presumption is not overcome by the fact that the record of the survey and plat of said road is lost or cannot be found ], and it will be competent for them to so find if all the evidence establishes the fact to their satisfaction, although no record of a survey and plat of said road has been given in evidence." The objection to the action of the court is that the District was thereby deprived of them, and had no distinct recollection of any map of the road. Another witness, who was road supervisor from 1869 to 1871, testified that he saw the map of Harewood road and other roads among the records of the old levy court of the District, in its room in the city. He did not know, however, when the map several roads; it was a map of the District was prepared or by whom; that it embraced of Columbia and the roads in it. Another witness (William T. Richardson), a civil of the commissioners of the District he found engineer, testified that under the direction records and maps of the levy court relating to Harewood road; that he found some maps, one made in 1873, in Governor Shepherd's time, and also a copy of the levy court map; that the maps and records were found in the vault of the old District building on First street; that he found no other maps or records relating to the levy court or Harewood road; that the map found was a copy of the original map showing the roads of the District, signed by a president of the levy court and clerk; that the first map was in pen work, and was an original made in 1873 under authority of an act of the late legislative assembly of the District. There was another map professing to have been made in 1857 by Mr. Boscke, while he was an employee of the District. The accuracy of the Boscke map was testified to, and it and the other maps were put in evidence. *102 *104 *103 The evidence therefore showed what the "If the evidence shows to the satisfaction levy court did as to surveying, platting, and of the jury that said grading or the removal recording the road, and the effect of it could of said gravel was done under the supervi not be taken from the jury and a presump- sion of the officers and by the employees of tion substituted for it. Such presumption said defendant, it will be competent for the might have been given to the jury as an ele-jury to presume from this fact that it was ment of decision in connection with the evi- authorized and directed by the joint action dence, and might have been so given by the of the commissioners of the defendant, uncourt if asked. less there be evidence that satisfies them that the contrary is the fact." reason. The prayer was objectionable for another It assumed that a record of the sur- It is objected that the prayer submitted vey and plat of the road was made and lost. to the jury a pure question of law; to wit, This was a fact in issue, and could not be as-whether the gravel was taken as an incident sumed. The court left the fact to be deduced from the evidence, telling the jury, however, that they could infer it, although there was no direct evidence of it. 4. The eighth prayer given at the request of the plaintiff was as follows: to the legal exercise of the power to grade. But a definition accompanied the question. The jury was told that what was meant by the legal power to grade was a power exercised by the Commissioners jointly, and the court carefully added that such legal power could be presumed from the supervi sion of the grading by the officers and employees of the District. The prayer is not amenable to the objection made. 6. The twelfth prayer requested by defendants in error, and given by the trial court with the modifications expressed in italics, was as follows: "If the jury believe from the evidence that at the time of doing the acts complained, which are in evidence, there was a right of common and public highway in the defendant to a road of only about 25 feet or less in width over the land of the plaintiffs' testator, and that an excavation in excess of the defendant's right of highway and of about 33 feet in width was made by the defendant "If the jury believe from the evidence upon the land of plaintiffs' testator, and be- that there was a lane or road over the land lieve from the evidence that the defendant of the plaintiffs' testator, yet if from the eviso exceeded its right of highway and excavat-dence the jury believe that travel over said ed gravel on the land of the plaintiffs' tes-lane or road originated for the accommodatator, and removed and used the same beyond the limits of said land to repair or improve other public highways in the District of Columbia, without making just compensation to the owner of the soil, or having any condemnation procedings, or exercising its lawful powers according to law, then the jury are instructed that the defendant would be liable as a trespasser for so doing, and that the jury must find for the plaintiff and assess such damages as the evidence shows would make them whole." The italics are ours, and they indicate the words upon which the District especially bases its objection. That objection is that a pure question of law was submitted to the jury. The objection is very general, and hardly attains to such specification of an error as can be noticed. However, we have examined the charge of the court, and think what was meant by the words objected to was sufficiently explained. tion of some prior owner or owners of that tract and the adjoining tract, or either of said tracts, and of those deriving title from or under such owner or owners of either or of both of said tracts, and believe that said lane or road was never surveyed, platted, or recorded as a public road or highway, as required by law, and believe that the various owners of said tract of land by mesne conveyances conveyed the same from one to the other, with covenants of warranty, without showing, mentioning, or excepting any lane or road over the same, either in the body of any of these deeds or in plats annexed to any of them; and believe that the location of said lane or road or part thereof over the land of the plaintiffs' testator was changed by Mr. John Agg, a prior owner of said land, for the reason that he wished it further from his house, and that he employed and paid the hands who made this change; and believe that from about 1843 to about the time of the conveyance of May 15, 1857, to the plaintiffs' testator gates were maintained across "The burden of proof is upon the defend- said lane or road by the owner or owners of ant to satisfy the jury that the gravel was said tract or their tenants, and that the gate obtained incident to the legal exercise of the posts of such gates continued to stand for power to grade. Such power, to be lawful, some time after the gates themselves wore must have been exercised by the commis-out or disappeared, and stood there until sioners jointly. It could not be exercised by any one of the said commissioners, as the power could not in law be delegated. If the gravel obtained and used *was not the incident to the exercise of the power to grade, but was obtained without the lawful exercise of the power to grade, then the use of the said gravel, as well as the said excavation, was unlawful, and the defendant has not maintained its plea of justification. 5. The eleventh prayer asked by the plaintiff was as follows: some time in 1861, after the late war had commenced; and believe that taxes were assessed by the public authorities upon and paid by the owners of said land or their tenants upon said tract of land, as a whole, including land within the limits of said lane or road; and believe that acts of ownership over the land within the limits of said lane or road were exercised by the plaintiffs' testator; and believe that said lane or road was *106 tiffs are bound by the answer of the commissioners and the District of Columbia to the bill of complaint of their testator [No. 7959, equity, Supreme Court, District of Columbia] offered in evidence by them, and so far as said answer is responsive to the allegations of said bill it is the evidence of the plaintiffs themselves, and the jury are not at liberty to ignore it or find the facts otherwise than in said answer set forth." not repaired by the public authorities until after the late civil war, or recognized by the public authorities as a public road until after the late civil war; or if the jury believe any of these facts, then the jury are instructed that these facts, or any of them which the jury may believe, would tend to prove that said lane or road was not a cominon or public highway, and would tend to rebut any presumption of its being a common or public highway; and any and all such facts, if believed by the jury, are to be considered in connection with the other evidence in the case; and if the jury upon the whole evidence believe that said lane or road was not such a highway at the time of the acts complained of which have been given in evidence, and was not a highway by dedication, then they should find the issue joined upon the defendant's third additional plea of high-commissioners to the bill of discovery filed way in favor of the plaintiffs." The objection that this prayer left to the jury to decide the law and the facts of the case is not justified, nor that it was held that, if any one of the enumerated facts was proved, the Harewood road was not a public way. The prayer summarized the facts in evidence, but did not express an opinion as to their probative force, whether collectively or separately considered. Each fact had some probative quality and value, and it was proper for the court to say so, "and that any and all such facts," as the court remarked, "if believed by the jury, were to be considered in connection with the other evidence in the case." And the court further said: "If the jury upon the whole evidence believe [not upon any one fact believe] that the said lane or road was not such highway at the time of the facts complained of, and was not a highway by dedication," then they should find that the gravel was not removed from a public highway, which was the defense made in the third additional plea of the District. 7. The testator of defendants in error filed a bill for discovery in 1882, on the equity side of the supreme court of the District of Columbia, against the District, its commissioners, and two assistants of the engineer commissioner. The bill alleged that he intended to bring an action against the defendants in said bill for the trespasses which constitute the matter of the present controversy, and, after stating with particularity the grounds of discovery, submitted interrogatories to be answered by the defendants, as to the time the acts were done which were complained of as trespasses, by whom done, under whose superintendency, by whom paid and out of what fund the work was paid for, the amount of gravel or earth dug and where taken, if taken from the limits where dug, and if any books, accounts, documents, or papers were kept recording or evidencing the facts. Certain of the defendants made answer under oath to the interrogatories. As to the probative force of the answers the District at the trial of the case at bar asked the court to instruct the jury as follows: "The jury are instructed that the plain The prayer was refused. Upon what ground, however, does not appear. It might have been refused, and could have been, even if it contained a correct declaration of law, on account of its general character. It is attempted here to be particularized. The specification of error is that the court, by refusing the prayer, held "that the defendants in error were not bound by the answer of the by the testator of the defendants in error respecting the bona fides of the action of said Commissioners in respect of the alteration of Harewood road and the purpose of such alteration." Whether the trial court would have given the prayer if it had been limited to the good faith of the District commissioners we cannot know. Presumably not, if it made their answer in the discovery suit conclusive proof, as claimed in the prayer which was refused. The greatest strength of proof attributable to an answer under oath in a suit in equity is that it cannot be overcome by a single witness unaccompanied by some corroborating circumstance. That it has even that strength in a common-law court we are not called upon to decide. It certainly has not conclusive strength. Lyon v. Miller, 6 Gratt. 438, 439, 52 Am. Dec. 129; 1 Pom. Eq. Jur. § 208. The prayer requested was therefore properly refused. 8. At the request of the plaintiff the court instructed the jury as follows: "If the issues joined upon both of the defendant's pleas, which issues are submitted to the jury, are found by them in favor of the plaintiffs, then they are instructed that they may assess such damages in favor of the plaintiffs as they believe from the evidence would make the plaintiffs whole, and may [include] enhance the damages by any sum not greater than the interest on the amount from August 28, 1882, when this action was brought, to the time of this trial [as part of to include such interest as damages, and may the plaintiffs' damages], if the jury [see fit consider the time during which the plaintiffs and their testator were kept out of their money between those dates] shall find from the evidence that such allowance would be reasonable and just." The objection is to the interest. It is not claimed that in cases of tort interest may not be allowed in the discretion of the jury. It is asserted that under the circumstances of the case the court should not have submitted the claim of interest to the jury. But it was the plaintiffs' right to have invoked the exercise of the discretion of the jury, and the circumstances of the case were to be considered by it in exercising such discretion, and presumably were considered. .109 9. One of the issues in the case was whether the gravel was taken as an incident to grading the road or for use on certain streets in the District. There was also an issue as to the width of the road and the right to take gravel outside of that width. Prayers were asked on those issues. The ninth prayer of the District was modified by the court and given as modified as follows (the additions of the court are in italics) : the confirmation of a grant from the Mexlcan government by the board of land commissioners under the act of Congress of 1851 (9 Stat. at L. 631, chap. 41) giving the board jurisdiction over claims "by virtue of any right or title derived from the Spanish or Mexican government," cannot be attacked collaterally on the ground that the grant was invalid and that the board had no Jurisdiction to confirm an invalid claim, since the board is given jurisdiction to consider whatever is necessary to the validity of the claim, including the question of the fact of a grant or the power to grant. [No. 87.] Decided January 7, 1901. "[Unless] If the jury shall believe from the evidence that Harewood road at the point of the alleged trespass was a public highway, and that the gravel was taken in pursuance of the power to grade, and not for the sole purpose of obtaining gravel for use Argued and Submitted November 8, 1909. elsewhere, then if they find for the plaintiffs in this case they are instructed that the the value to the plainmeasure of damages is travel as is shown by the evidence to have been taken by the defendant from the plaintiffs' testator's land exterior to the lines of Harewood road, and such damages, if any, to the residue of the land as was occasioned by the removal of the gravel exterior to the boundaries of the road." The criticism of the court's action is that it allowed the jury to consider the motive of the District in grading the road. We think counsel misapprehended the purpose of the modifications of the prayer. It did not question the motives of the District authorities, nor did it assume anything that was not within the issues of the case. The right to take gravel within the limits of the road which might be established by the evidence, and in the exercise of grading, was conceded. The right to take gravel outside the limits of the road, or not for the purpose of grading it, was denied, and properly denied. It was an easement in the land, not the fee to the land, which the public acquired by the road, and the measure of the easement was the width of the road. The right to grade and improve was incident to the easement, but the easement gave no other right in the soil or to the soil. The right to remove soil from one part of a road to another part may be conceded. And it has been decided such right extends to other streets forming parts of the same system. Of this, however, we are not required to express an opinion, as it is not involved in the prayer. N ERROR to the Supreme Court State of California to review a decision affirming a judgment in favor of plaintiff in an action for lands. Affirmed. See same case below, 117 Cal. 594, 49 Pac. 714. The facts are stated in the opinion. Messrs. Harvey M. Friend and Z. Montgomery for plaintiffs in error. Messrs. Stephen M. White and James H. Shankland submitted the case for defendant in error. Mr. Justice McKenna delivered the opinion of the court: This is an action of ejectment in which defendant in error was plaintiff in the court below, and the plaintiffs in error were defendants. It was brought in the superior court of Los Angeles county, state of California. Besides a prayer for the recovery of the land asked in controversy an injunction was against the commission or repetition of certain described trespasses. The land sued for was the south half of the Rancho ex-Mission de San Fernando, with certain exceptions. The defendant in error relied for title upon a patent of the United States to Eulogio de Celis, dated January 8, 1875, which recited that it was based upon the confirmation of his title as one derived from the Mexican government through a deed of grant made the 17th day of June, 1846, by Pio Pico, the then constitutional governor of the depart ment of the Californias. The grantor of de fendant in error purchased an undivided half of the rancho in 1869, and became the owner severalty of the tract sued for by parti tion proceedings. Finding no error in the record, the judg-in ment is affirmed. One of the defenses of the action, and the Mr. Justice Gray took no part in the de only one we are concerned with on this writ cision. LOS ANGELES FARMING & MILLING COMPANY. of error, was the invalidity of the patent based on the invalidity of the grant from the Mexican government, and its confirmation by the board of land commissioners. The answer sets out the proceedings before the board, its decision and decree, and the deed of Pio Pico. As much of the deed as is necessary to quote is as follows: "The undersigned, constitutional governor of the department of the Californias, in virMexican grant-patent on confirmation of tue of the powers vested unto him by the su collateral attack. preme government of the nation, and in vir A patent from the United States, based upon tue of a decree of the honorable departmen21 S. C.-19. use. "Said Mission of San Fernando was leased by the government of Mexico to Andres Pico in December, 1845, for the term of years, which lessee has been in the occupancy of the said property up to the present date. "Claimant further avers that he knows of no other claim to the aforesaid Mission, and he relies on the documents above referred to and witnesses he shall produce to substantiate his claim." "The material part of the decision was as follows: tal assembly of April 3d of the present year, to | imbursed to him by the Mexican government, raise means for the purpose of maintaining or by any person whatsoever. the integrity of the territory of this department, for the sum of $14,000 which he receives, sells unto Don Eulogio de Celis and his heirs, ex-Mission of San Fernando with all its properties, estates, lands, and movables, with the exception of the church and all its appurtenances, which remains for public Said purchaser obligating himself to maintain on their lands the old Indians on the premises during their lifetime, with the right to make their crops, with the only condition that they shall not have the right to sell the lands they cultivate and any other which they possess without anterior title from the departmental government, for all of which the aforesaid Senor Celis shall be acknowledged as the legitimate owner of the aforesaid ex-Mission of San Fernando, to use the same as to him shall seem best, guar-structions of his government for the purpose anteeing unto him, as this government does guarantee, that he is well possessed of the aforesaid estate with all the prerogatives granted by law to purchasers, with the only condition that the above-mentioned purchaser shall not take possession within the space of eight months from the date hereof, within which delay the government shall have the right to annul this contract by reimburs-ly established, and the circumstances under ing to the aforesaid Senor Celis the sum of $14,000 with interest at the current commercial rates; but if this reimbursement is not operated within the aforesaid eight months, this sale shall be valid." The petition to the board was as follows: "The grant purports to have been made in consideration of the payment of the sum of $14,000 in money. Pio Pico testifies that he exccuted the grant at the date that the same bears, and that it was made under special in of raising the necessary funds to enable the department to prepare for a defense against the attack of the Americans, and that the sum of $14,000 was actually received by him from the grantee in consideration thereof, and that the funds were used by him for the benefit of the nation in the defense of the same. The genuineness of the grant is clear which it was made so clearly explained as to leave no doubt but it was done in good faith." A decree was entered confirming the grant. The title based on the proceedings before the commissioners is alleged in the several answers to be invalid for the following reasons: "I. Because, as appears on its face, it was a deed of sale whereby said Pio Pico, governor of California, attempted, for the consideration of $14,000, to grant the lands therein mentioned to said Eulogio de Celis, which act was ultra vires, unauthorized by and in violation of the laws of the Republic of Mexico. "Eulogio de Celis gives notice that he claims a tract of land situated in the present county of Los Angeles, known by the name of Mission of San Fernando, bounded as follows: On the north by the rancho of San Francisco, on the west by the mountains of Santa Susanna, on the east by the rancho of Miguel Triumfo, and on the south by the "II. Because the lands so attempted to be mountains of Portesuelo, which tract is sup-granted were lands embraced within and beposed to contain 14 square leagues. "Said land was sold to said Celis by a deed of grant dated the 17th day of June of the year 1846, by Pio Pico, constitutional governor of the Californias, thereto duly authorized by the supreme government of the nation and by a decree of the departmental assembly of April 3d, 1846; said sale was made for the sum of $14,000, which was paid by the said Celis to the said Pio Pico, who acknowledged the receipt thereof, as will more fully appear by reference to the aforesaid deed of grant, copy whereof marked A is hereto annexed. longing to the Mission of San Fernando, and not legally subject to the granting power of said governor. "This defendant further says in this behalf that said 'commissioners to ascertain and settle the private land claims in the state of California' never had any jurisdiction over the subject-matter of said claim of said Eulogio de Celis, otherwise called Eulogio Celis, because he says that it was set out and appeared on the face of the notice and petition of said Eulogio Celis and accompanying documents, to wit, the alleged grant itself, that at the time of the making of said alleged grant the lands embraced therein were mission lands, and also that said so-called grant was in the nature of a sale for money, and that said grant was therefore without authority of law, and void, and did not constitute a claim by virtue of any right or title derived from the Spanish or Mexican government. "Claimant avers that the aforesaid deed of sale contains the condition that the government of Mexico shall have the right to annul the contract by reimbursing to this claimant the aforesaid sum of $14,000, with the current rates of interest, and in case said sum is not reimbursed within said eight months, said Mission of San Fernando shall be his in full property. And this claimant "And defendant says that, because of the avers that said sum of $14,000 was never re-facts so set out and shown in said notice and |