with the constitutional right to carry on a lawful business, to make contracts, or to use and enjoy property." [4] In the case now under consideration, it is plainly manifest that the attempted regulation of the business conducted by the petitioner has no relation to the ends for which the police power exists, namely to protect the public health, comfort, safety or welfare. An ordinance which prevents the operation of a stone crusher in a sparsely settled territory of 2163 acres, 500 of which are undeveloped and practically uninhabited and allows its operation in a small area of 11.65 acres in the center of a city surrounded by "poorer classes of residences" does not subserve the ends for which the police power exists. The ordinances which the petitioner is charged with having violated being void and his arrest being illegal, it is ordered that he be discharged. We concur: LORIGAN, J. SLOSS, J. HENSHAW, J. MELVIN, J. SULLIVAN, C. J. Crim. No. 1902. In Bank. January 4, 1915. In re GAMBETTA, on Habeas Corpus. [1] CRIMINAL LAW-FATHER OF ILLEGITIMATE CHILDREN-PROSECUTION FOR NON-SUPPORT CONSTRUCTION OF CODE.-Section 270 of the Penal Code, as originally adopted, has no application to the father of illegitimate children, and section 196a of the Civil Code does not change the application of that section in any way. Application for a writ of habeas corpus, prayed to be directed against Fred Eggers, Sheriff of the City and County of San Francisco. For Petitioner-J. A. Gendotti and C. J. Houston. For Respondent-Geo. L. Bell. FROM THE BENCH. [1] The Chief Justice: The court is unanimously of the opinion that section 270 of the Penal Code, as originally adopted, has no application to the father of illegitimate children, and that section 196a of the Civil Code, relied on, does not change the application of that section in any way. The prisoner will be discharged from custody. Sac. No. 2124. Department One. January 5, 1915. MAX STRAUSS, Plaintiff and Respondent, v. D. J. CANTY, Defendant and Appellant. [1] QUIET TITLE-CLAIM UNDER TAX DEED-VALIDITY OF SALE MAILING OF NOTICE TO PARTY LAST ASSESSED-BURDEN OF PROOF.-Where in an action to quiet title the defendant claims under a tax deed, the burden of proof is upon him to show that the tax collector complied with the provision of section 3897 of the Political Code requiring that a copy of the notice of the sale be mailed to the party to whom the land was last assessed at his last known post-office address, and where he fails to sustain such burden, and the deed does not recite such fact, he fails to acquire title by virtue of the tax proceedings. [2] ID. CLAIM OF TITLE BY PRESCRIPTION-INSUFFICIENCY OF PROOF. It is held herein that the defendant failed to prove an exclusive and continuous possession sufficient to support his claim of title by prescription. Appeal from the Superior Court of Kings County-John G. Covert, Judge. For Appellant-Royle A. Carter. Fer Respondent-Samuel M. Samter, Frank Kauke. The defendant appeals from a judgment quieting plaintiff's title to a tract of land in Kings county. He also appeals from an order denying his motion for a new trial. The plaintiff claims as successor in interest of Arney L. Weddle, to whom the land was granted by a United States patent on March 7, 1892. The defendant claims under a tax deed, and also relies upon a title by prescription and the statute of limitations. The plaintiff showed a good deraignment of title from Weddle. The record contains reference to a deed from Lucinda E. Weddle (wife of Arney L.) to Arna L. Weddle. The deed was intended to convey any possible interest of the wife to the husband. Waiving the question of the effect of the mistake in the grantee's name, there is nothing to show that the wife had any interest, and, so far as the proof goes, Arney L. Weddle was the sole owner of the land. Even if it was community property, he had the right to convey it for a valuable consideration. He did convey it to Frederick in 1907 by a deed reciting such consideration. Thereafter the plaintiff obtained a money judgment against Frederick, had execution levied, and purchased the property at the execution sale. The sheriff's deed was executed to the plaintiff on December 12, 1909. The evidence offered by plaintiff in this behalf consisted of the judgment against Frederick, the execution, with the sheriff's return showing the sale and the affidavit showing due publication of notice of sale, and the sheriff's deed in proper form. These papers were sufficient to show the acquisition by plaintiff of Frederick's title. (Blood v. Light, 38 Cal. 649; Hihn v. Peck, 30 Cal. 280; Peterson v. Weissbein, 75 Cal. 174.) [1] The land was sold to the state for non-payment of taxes in 1895. The tax collector made his deed to the state in 1900. The property was offered for sale and sold to the defendant on May 5, 1905, and a deed was thereafter executed. At the time of the sale section 3897 of the Political Code had been amended by adding certain requirements regarding the notice of sale by the state of property which had been sold to it for non-payment of taxes. One of these requirements was that a copy of the notice should be mailed to the party to whom the land was last assessed at his last-known postoffice address. By the terms of section 3898 the deed of the tax collector was required to "recite the fact necessary to authorize such sale and conveyance". This requirement of mailing notice applied to sales had after the amended section went into effect, even though, as here, the publication of notice had been commenced before such mailing was essential. (Buck v. Canty, 162 Cal. 226.) Such mailing was one of the facts necessary to authorize the tax collector to make the sale. (Smith v. Furlong, 160 Cal. 522.) The deed in this case did not recite the mailing of notice. It was not, therefore, the deed provided for by section 3898. (Canty v. Staley, 162 Cal. 379.) But, if compliance with the requirement of mailing could be shown, although not recited, the burden of proof is on the party claiming under the deed (Buck v. Canty, 162 Cal. 226; Krotzer v. Douglas, 163 Cal. 49; Davis v. Peck, 165 Cal. 353), and, as this burden was not sustained by the defendant, the court rightly ruled that he had not acquired title by virtue of the tax proceedings. [2] The questions arising on the pleas of the statute of limitations and of prescriptive title may be considered together. Plaintiff having shown title in himself, he was presumed to have been in possession within the time required by law, and the presumption could be overcome only by proof that the property had been held and possessed adversely to the legal title for five years before the commencement of the action. (Code Civ. Proc., sec. 321; Nathan v. Dierssen, 146 Cal. 62.) The plea of the statute of limitations would, therefore, not be sustained unless the defendant showed adverse possession for the same period necessary to the acquisition of a prescriptive title. The court found against defendant's allegations in this regard. We think this finding is amply supported by the evidence. The defendant testified that in May, 1905, he went on the land, measured it off, and placed stakes at the corners. He was on the land at that time during parts of two days. In the fall of 1905 he rented it for the purpose of feeding sheep. He rented it similarly during the succeeding years up to 1912, receiving a total rental of about $50 for five years. He saw sheep feeding on the land several times. His testimony was somewhat qualified by the later statement that he gave no written lease, but merely charged and collected money "for the feed of the sheep on the land". The first transaction of this kind was between September and November, 1905. The action was commenced in August, 1910. The court was entirely justified in concluding that the defendant had not proven an exclusive and continuous possession sufficient to satisfy the statute. While possession may be maintained by using the land for pasture during the grazing season (Webber v. Clarke, 74 Cal. 11) even though there be no enclosure (Bullock v. Rouse, 81 Cal. 595) the possession must be of an exclusive character. The proof here was silent on the question of occupancy by others and was entirely consistent with the view that the possession of those holding under Canty was casual and intermittent. Besides, this possession, such as it was, began in the fall of 1905, less than five years before the commencement of the action. It was not unreasonable for the court to conIclude that the formal act of marking corners in May, 1905, if it was a taking of possession, was not connected with the later renting of the feeding rights so as to make the possession continuous between May, 1905, and the autumn of the same year. The judgment and the order denying a new trial are affirmed. SLOSS, J. We concur: ANGELLOTTI, C. J. L. A. No. 3431. Department One. January 5, 1915. C. A. COOK, Plaintiff and Appellant, v. LOS ANGELES RAILWAY CORPORATION, Defendant and Respondent. [1] ACTION FOR DAMAGES-PERSONAL INJURIES-NEGLIGENCE FAILURE TO INTRODUCE PRIVILEGED TESTIMONY-PRESUMPTION OF ADVERSE CHARACTER-ERRONEOUS BUT NOT PREJUDICIAL INSTRUCTION— TESTIMONY AS TO UNDISPUTED FACT.-An instruction to the jury in an action for damages for personal injuries which, after stating that by reason of the privilege defined in section 1881 of the Code of Civil Procedure, the physicians who had attended the plaintiff could not testify without his consent, charged them that if plaintiff had failed to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him, is erroneous, but not prejudicially so. where it is undisputed that the plaintiff suffered some injuries, and the verdict in favor of the defendant could have been reached only upon a finding that, by reason of plaintiff's own negligence, or the defendant's want of negligence, there was no liability for the injuries. [2] ID.-ID.-ID.-COLLISION BETWEEN AUTOMOBILE AND ELECTRIC CAR-SPEED OF CAR-ABSENCE OF ORDINANCE-RATE NOT INCONSISTENT WITH ORDINARY CARE-PROPER INSTRUCTION.-An instruction to the jury in such an action for injuries sustained as the result of a collision between an automobile driven by the plaintiff and an electric street car of the defendant that in the absence of anv allegation or evidence of any ordinance limiting the rate of speed at which defendant might propel its cars at the place where the collision occurred. it "had a right to drive or propel its said car at any rate which it saw fit which was not consistent with the exercise of ordinary care", is a correct statement of the obligation of the defendant as to the speed of the car. Appeal from the Superior Court of Los Angeles County-N. P. Conrey, Judge. For Appellant-E. B. Drake. For Respondent-Gibson, Dunn & Crutcher, by Norman Sterry. The plaintiff appeals from an order denying his motion for The action was brought to recover damages for a new trial. personal injuries sustained by plaintiff as the result of a collision between an automobile driven by him and an electric street car of the defendant. There was a jury trial and a verdict and judgment in favor of the defendant. The testimony on the issues of defendant's negligence and plaintiff's contributory negligence was sharply conflicting, and no question is made of the sufficiency of the evidence to support the verdict. While it was shown without contradiction that the plaintiff had suffered some physical injuries, there was a good deal of controversy over the extent of these injuries, the defendant claiming that plaintiff was greatly exaggerating their severity. After the accident, the plaintiff was taken to a hospital. There he was attended by two physicians. He also had the care of a nurse. None of these three persons was produced as a witness. [1] The court gave an instruction in which, after stating that, by reason of the privilege defined in section 1881 of the Code of Civil Procedure, the physicians who had attended plaintiff could not testify without his consent, it charged that if plaintiff had failed to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him. A like presumption was declared to arise from the unexplained failure to call the nurse. These instructions are assigned as error. So far, at least, as the physicians are concerned, the instruction given is in conflict with the views expressed in Thomas v. Gates, 126 Cal. 1, where it is said, in effect, that the raising of a presumption against a party for the failure to introduce or to permit the introduction of testimony which he had the right to exclude as privileged, would go far toward destroying the value of the privilege. But of this instruction, as well as the one relating to the nurse, it is sufficient to say that, if they were erroneous, they were not prejudicial. They dealt with witnesses who could have testified on no subject other than that of the extent of the plaintiff's injuries. As has been said, the fact that he had suffered some injuries was undisputed. The verdict in favor of defendant could, therefore, have been reached only upon a finding that, by reason of plaintiff's own negligence or the defendant's want of negligence, there was no liability for the injuries, whatever their extent. In this state of the record, errors in instructions bearing solely on the amount of damage could not have influenced the verdict, and present no ground for reversal. (Wilhelm v. Donegan, 143 Cal. 50.) [2] Only one other point is made. It is claimed that the court erred in instructing the jury that there was no allegation or evidence of any ordinance limiting the rate of speed at which defendant might propel its cars at the place where the collision occurred, "and defendant had a right to drive or propel its said car at any rate which it saw fit which was not inconsistent with the exercise of ordinary care". The complaint charged that the car was being negligently driven at a rate of speed of about thirty miles an hour. Whether the speed was in excess of a |