The facts are stated in the opinion of the court. Lilienthal, McKinstry & Raymond, and Barry Colding, for Petitioners. Christopher M. Bradley, for Respondents. THE COURT.-Petition for writ of review. The applicant, being a night watchman in the employ of the petitioners, received an injury while using a circular saw on the premises of his employers, the use of said saw being occasioned by the desire of said watchman to procure a board of suitable length to barricade an outer door of the premises which he was employed to watch, the lock on said door being defective. He was awarded compensation by the Industrial Accident Commission, and a writ of review is here sought for the purpose of annulling said award upon the ground that there is no evidence to sustain it. Assuming that it was within the scope of the applicant's employment to see that the doors of the premises were properly secured by locking, nevertheless we are of the opinion that his resort to the use of a circular saw for the purpose of making a board that would answer the purpose of extending across the door was entirely beyond the scope of his employment and not in the contemplation of his employers, and was not a resort to reasonable means for the purpose of securing the end intended by him at that time. If we are correct in this conclusion, the award cannot stand; and it is therefore ordered that it be, and it is hereby, annulled. [Civ. No. 2283. First Appellate District.-October 22, 1917.] ALFRED HERTZ, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent. Costs-UNDERTAKING IN ACTIONS BY NONRESIDENTS-POWER TO EXTEND TIME.-Under the provisions of section 1054 of the Code of Civil Procedure, the superior court has power to extend the time in which to file the bond for costs required of nonresidents and foreign corporations under section 1036 of such code, and where the bond is filed within the extended time, the action will not be dismissed. APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the First Appellate District to compel the dismissal of an action. The facts are stated in the opinion of the court. Eric J. Rosenstirn, and Brewton A. Hayne, for Petitioner. Hartley F. Peart, and Gus L. Baraty, for Respondent. THE COURT.-Petition for writ of mandate directed to respondent commanding it to dismiss a certain action pending before it because of the alleged failure to file a good and sufficient bond under the provisions of section 1036 of the Code of Civil Procedure. We are satisfied that the court below was empowered, under the provisions of section 1054 of the Code of Civil Procedure, to extend the time in which the bond in question might be filed; and we think, upon the authority of Sciutti v. Pacific Coal Co., 30 Utah, 462, [8 Ann. Cas. 942, 85 Pac. 1011], and the case of Kissler v. Budge, 24 Idaho, 246, [133 Pac. 125], the court was within the law when it refused to dismiss the cause after a good and sufficient bond had been filed. For that reason the writ is dismissed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 20, 1917. [Civ. No. 1714. Third Appellate District.-October 22, 1917.] EDWARD G. SHERWOOD et al., Respondents, v. GEORGE S. AHART, Appellant. HIGHWAYS-IMPLIED DEDICATION.-Dedication of a road as a highway is implied from its long and continuous use with full knowledge of the land owners interested without asking or receiving any permission, and without objection from anyone for a period of time beyond that required by law to bar the right of action. ID.-EVIDENCE-FENCING OF ROAD.-An intention to dedicate a road as a public highway is indicated from the fencing thereof on both sides throughout its entire length on the owner's land. ID.-ACTION TO ENJOIN OBSTRUCTION-SPECIAL INJURY.-One who suf fers special injury in the use of his property from the obstruction of a highway may maintain an action to enjoin the nuisance. ID.-PARTIES-Wife of DefendANT.-In an action to enjoin the obstruc tion of a highway, it is not necessary to join the wife of the defendant merely because she was a co-owner of the premises. ID.-RIGHT TO JURY.-An action to enjoin the obstruction of a highway being one in equity, the defendant is not entitled to a jury trial. APPEAL from a judgment of the Superior Court of El Dorado County, and from an order denying a new trial. N. D. Arnot, Judge. The facts are stated in the opinion of the court. Wm. F. Bray, and H. C. Jerrett, for Appellant. Abe Darlington, for Respondents. BURNETT, J.-The action was to enjoin defendant from interfering with the free use and occupation of a certain highway by plaintiffs, and from interfering with or preventing plaintiffs, or either of them, from entering upon any portion of said way and repairing the same. The theory upon which the action was tried is that said way constitutes a public highway and that said plaintiffs were especially damaged by reason of the interference on the part of the defendant with the use and enjoyment of the same on the part of the former. There is, however, no allegation in the complaint that said way constitutes a public highway, it being designated as a "wagon road, commonly known as Brewer's Road," and it was alleged "that plaintiffs have traveled said wagon road, known as Brewer's Road, for more than ten years last past, and are the owners and in possession and occupation of a right of way over said northeast quarter of section 35, along and over the course of said Brewer's Road, and are entitled to travel and pass over the same at any and all times, and it is necessary for them and each of them to travel the said road in order to reach the said city of Placerville." It is thus to be seen that plaintiffs presented, by their complaint, the issue as to their ownership merely of a right of way, but as before stated, the case was tried without objection upon the theory that said wagon road constituted a public highway and had been used as such for many years, and the court so found, as the following finding discloses: "That said road, known as Brewer's Road, has been used and traveled by the general public as a public highway continuously since the year 1860," and it must be said that abundant evidence is found in the record to support said finding. The manner in which it became a public highway was through a dedication by the owner and acceptance by the public. Such dedication is implied from the long and continuous use of the said road with full knowledge of the land owners interested, without asking or receiving any permission, and without objection from anyone for a period of time beyond that required by law to bar the right of action. Under the authorities, it must be held that such long-continued use without objection, and with the acquiescence of the owners, raised the implication of dedication for such public purpose. (Schwerdtle v. County of Placer, 108 Cal. 589, [41 Pac. 448]; Hartley v. Vermillion, 141 Cal. 339, [74 Pac. 987]; Leverone v. Weakley, 155 Cal. 395, [101 Pac. 304].) We may add that in addition to such use of said road there are other circumstances disclosed by the evidence indicating an intention of the owner to so dedicate said land. One of these cir. cumstances is found in the fact that the road was fenced on both sides throughout its entire length on the land of the defendant, forming a lane through his land. The exact date when the road was thus fenced does not appear. There is, however, direct testimony that it was built by one James Dean, who was then the owner of the land in controversy, now owned by appellant, and it appears from the testimony of other witnesses that said Dean died in the year 1893. The conclusion therefore follows that it has thus been fenced on both sides on the land of defendant since the said year 1893. This fencing of the road would appear to constitute a clear and explicit intention of dedication to the public. Recurring now to the use of said road as a public highway, the following testimony of certain witnesses for the plaintiffs can leave no room for controversy. E. G. Sherwood testified that he had traveled the road for sixteen years, and that it had been "used right along by the general public as a public highway." Mrs. L. Church testified that she had traveled it since 1874. E. E. Twitchell testified that it "has been traveled by the general public as a public highway for the last thirty-five years." N. Heuer testified that it has been traveled by the general public since 1879. Eugene Phelps knew a portion of the road twenty-nine years ago, and said that it was traveled by the general public. W. S. Dean, a son of J. M. Dean, who patented the land now owned by Ahart, testified that he had known the road as long as he could recollect, and that it had been traveled by all sorts of vehicles, and that "we never attempted to stop anybody; as far as we knew, everyone had a right to travel there." Henry Schneider testified: "I have known the road called Brewer's Road, which passes through the land of Sherwood and Ahart to the Buck's Bar Road, for over fifty-four years. During all that time it has been traveled by the general public as a public highway." Mrs. Carrie Dean, a witness for the defendant, a former owner of the land now owned by him, testified: "We permitted people to pass over that road, we never obstructed anybody's passing. Later on my husband fenced the lane that goes through there now. I never objected to people passing through there, never had any occasion to. I did not have any bother only with cattle; people traveled it as they saw fit." The defendant himself testified: "I never forbid anyone going through there; there is very little travel there. Whoever wanted to go through passed along without saying anything." It must be apparent that the foregoing is amply sufficient to support a finding of a dedication of said way to the public use. It is equally clear from the evidence, which we need not set out, that the plaintiffs were damaged by the acts of defendant in obstructing said way in a manner different in degree from that of the public generally, and, therefore, were they authorized to maintain the present action. In |