Prescott

Upon the face of the complaint the cause of action and relief sought are not made perfectly clear. The trial court held the action to be one to enforce a right of way by plaintiff as appurtenant to his land over and across certain parcels of defendant’s land; and respondent’s counsel agrees with the trial court as to the nature of the cause of action. Treating the action as of the character denominated, we shall consider the merits of the litigation, judgment having gone for plaintiff and defendant appealing. Viewing the action from the standpoint of the trial court, there are matters alleged in the complaint which give it no strength and may be termed surplusage; but it cannot be said that *301 the court committed any material error in overruling defendant’s demurrer pointed at these matters.

There are some allegations of the complaint declaring that the defendant dedicated these parcels, of land to the public as highways; and as to the fact of dedication, the trial court found that defendant offered to dedicate them to the publicas streets and abandoned them as such to the public, but that the public never accepted such offer of dedication. The court further found that such…