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mm 



REPORTS OF CASES 



DXTX&lilNXD IN 



THE SUPREME COURT 



OV THE 



STATE OF CALIFORNIA. 



C. p. POMEROT, 
BEPOBTEB. 



VOLUME 141. 



SAN PBANCI8C0: 
BANCROFT-WHITNEY COMPANY, 

Law Pububbibs and Law Bookbiluebs. 
1906. 



Copyright 1904, 
BANCROFT-WHITNEY COMPANY, 

Copyright 1905, 
BANCROFT-WHITNEY COMPANY. 

Copyright 1906, 
BANCROFT-WHITNEY COMPANY, 



San Francisco: 

The Filmer Brothers Electrotype Company, 

Typographers and Sterbotypers. 



SUPREME COURT. 



W. H. BEATTY, Chief Justice. 

DEPABTMENT ONS. 

WALTER VAN DYKE, Presiding Justica 
F. M. ANGELLOTTI, Justice. 
LUCIEN SHAW, Justice. 

DEPARTMENT TWO. 

T. B. McFARLAND, Presiding Justice. 
W. G. LORIGAN, Justice. 
P. W. HENSHAW, Justice. 

COMMISSIONERSL 

N. P. CHIPMAN. 
WHEATON A. GRAY. 
J. A. COOPER. 
GEORGE H. SMITH. 
RALPH C. HARRISON. 

OFFICERS OF THE COURT. 

U.S.Webb Attorney-General 

C. N. Post Assistant Attorney-General 

G. A. Stubtevant First Deputy Attorney-General 

E. B. Power Second Deputy Attorney-General 

J. C. Daly Third Deputy Attorney-General 

C. P. PoMEROY Reporter 

H. L. Gear Deputy Reporter 

(iii) 



iy Supreme Court. 

Prank C. Jordan Clerk 

Oscar Tollb Chief Deputy Clerk, San Francisco 

ISADOBB Erb Deputy Clerk, San Francisco 

Q. H. S. Dryden Deputy Clerk, San Francisco 

A. M. Duncan Deputy Clerk, San Francisco 

J. M. Meredith Deputy Clerk, Lios Angeles 

N. Daroux Deputy Clerk, Sacramento 

Henry C. Finkler Secretary 

L. A. Washburne Secretary 

E. A. QmviN Phonographic Reporter 

W. J. Nicholson Phouographic Reporter 

A. W. Johnson Secretary to Commissioners 

Benjamin Edson . , Librarian 

Ezra E. Washburn Bailiff 

A. W. PooLB BaiUfl 



ORGANIZATION OF SUPREME COURT. 



[Oonstitntion, ftrtiele YI, section 8.] 
Sbo. 2. The Supreme Court shall consist of a chief justice 
ind six associate justices. The Court may sit in departments 
and in Bank, and shall always be open for the transaction of 
business. There shall be two departments, denominated, re- 
spectively, Department One and Department Two. The chief 
justice shall assign three of the associate justices to each de- 
partment, and such assignment may be changed by him from 
time to time. The associate justices shall be competent to sit 
in either department, and may interchange with each other by 
agreement among themselves, or as ordered by the chief jus- 
tice. Each of the departments shall have the power to hear 
and determine causes, and all questions arising therein, sub- 
ject to the provisions hereinafter contained in relation to the 
Court in Bank. The presence of three justices shall be neces 
sary to transact any business in either of the departments, ex- 
cept such as may be done at chambers, and the concurrence of 
three justices shall be necessary to pronounce a judgment 
The chief justice shall apportion the business to the depart- 
ments, and may, in his discretion, order any cause pending 
before the Court to be heard and decided by the Court in 
Bank. The order may be made before or after judgment pro- 
nounced by a department; but where a cause has been al- 
lotted to one of the departments, and a judgment pronounced 
thereon, the order must be made within thirty days after 
such judgment, and concurred in by two associate justices, 
and if so made it shall have the effect to vacate and set aside 
the judgment. Any four justices may, either before or after 
judgment by a department, order a case to be heard in Bank. 

(V) 



vl Organization op Suprbme Cottbt. 

If the order be not made within the time above limited, the 
judgment shall be final. No judgment hj a department shall 
become final until the expiration of the period of thirty dayi 
aforesaid, unless approved by the chief justice, in writing, 
with the concurrence of two associate justices. The chief 
justice may convene the Court in Bank at any time, and shall 
be the presiding justice of the court when so convened. The 
concurrence of four justices present at the argument shall 
be necessary to pronounce a judgment in Bank; but if four 
justices, so present, do not concur in a judgment, then all the 
justices qualified to sit in the cause shall hear the argument ; 
but to render a judgment, a concurrence of four judges shnll 
be necessary. In the determination of causes, all decisions of 
the Court in Bank or in departments shall be given in writ- 
ing, and the grounds of the decision shall be stated. The 
chief justice may sit in either department, and shall preside 
when so sitting, but the justices assigned to each department 
shall select one of their number as presiding justice. In case 
of the absence of the chief justice from the place at which the 
Court is held, or -his inability to act, the associate justices 
shall select one of their own number to perform the duties 
and exercise the powers of the chief justice during such ab- 
sence or inability to act 



SUPREME COURT COMMISSIONERS. 



[Statutes 1903, page 178.] 
Section 1. The Supreme Court of the State of California 
6hall, immediately upon the expiration of the term of office 
of the present Supreme Court Commissioners, appoint five 
persons of legal learning and personal worth as Commission- 
ers of said Court. It shall be the duty of said Commission- 
«rB, under such rules and regulations as said Court may adopt, 
to assist in the performance of its duties, and in the dis- 
position of the numerous causes now pending in said Court 
undetermined. The said Commissioners shall hold office for 
the term of two years from and after their appointment, dur^ 
ing which time they shall not engage in the practice of the 
law. They shall each receive a salary equal to the salary of a 
Judge of said Court, payable at the same time and in the same 
manner. Before entering upon the discharge of their duties, 
they shall each take an oath to support the Constitution of 
the United States and the Constitution of the State of Cali- 
fornia, and to faithfully discharge the duties of the office of 
Commissioner of the Supreme Court to the best of their abil* 
ity. The said Court shall have power to remove any and all 
members of said Commission at any time, by an order entered 
on the minutes of said Court, and all vacancies in said Com- 
mission shall be filled in like manner. 

(vii) 



SUPERIOR COURT JUDGES. 



W. E. GREENE Oakland, Alameda 

S. P. HALL Oakland, Alameda 

JOHN ELLSWORTH Oakland, Alameda 

F. B. OGDEN Oakland, Alameda 

HENRY A. MELVIN Oakland, Alameda 

N. D. ARNOT Markleeville, Alpine 

R. C. RUST Jackson, Amador 

JOHN C. GRAY Oroville, Butte 

A. I. MeSORLEY San Andreas, Calaveraa 

H. M. ALBERY Colusa, Colusa 

WHiLIAM S. WELLS Martinez, Contra Costa 

JOHN L. CHILDS Crescent City, Del Norte 

M. P. BENNETT Placerville, El Dorado 

H. Z. AUSTIN Fresno, Fresno 

GEORGE E. CHURCH Fresno, Fresno 

OVAL PIRKEY Willows, Glenn 

G. W. HUNTER Eureka, Humboldt 

E. W. WILSON Eureka, Humboldt 

W. A. LAMAR Independence, Inyo 

J. W. MAHON Bakersfield, Kem 

PAUL M. BENNETT Bakersfield, Kem 

M. L. SHORT Hanford, Kings 

M. S. SAYRE Lakeport, Lake 

FRANK A. KELLEY Susanville, Lassen 

B. N. SMITH Los Angeles, Los Angeles 

N. P. CONREY Los Angeles, Los Angeles 

WALDO M. YORK Los Angeles, Los Angeles 

D. K. TRASK Los Angeles, Los Angeles 

CURTIS D. WILBUR Los Angeles, Los Angeles 

M. T. ALLEN Los Angeles, Los Angeles 

(viii) 



SuPERioB Court Judges. ix 

W. M. CONLBT Madera, Madera 

THOS. J. LENNON San Rafael, Marin 

J. J. TRABUCCO Mariposa, Mariposa 

J. Q. WHITE Ukiah, Mendocino 

B. N. RECTOR Merced, Merced 

JOHN E. RAKER Alturas, Modoc 

J. D. MURPHY Bridgeport, Mono 

B. V. SARGENT Salinas City, Monterey 

H. C. GESPORD Napa City, Napa 

PRANK T. NILON Nevada City, Nevada 

Z. B. WEST Santa Ana, Orange 

J. E. PREWETT Anbum, Placer 

C. E. McLaughlin Quincy, Plumaa 

J. S. notes Riverside, Riverside 

PETER J. SHIELDS Sacramento, Sacramento 

JOSEPH W. HUGHES Sacramento, Sacramento 

E. C. HART Sacramento, Sacramento 

M. T. DOOLING Hollister, San Benito 

BENJAMIN P. BLEDSOE San Bernardino 

PRANK P. OSTER San Bernardino 

E. S. TORRANCE San Diego, San Diego 

N. H. CONKLIN San Diego, San Diego 

JAMES V. COFFEY San Francisco 

WILLIAM P. LAWLOR San Francisco 

T. P. GRAHAM San Francisco 

J. C. B. HEBBARD San Francisco 

P. H. DUNNE San Francisco 

CARROLL COOK San Francisco 

JOHN HUNT San Francisco 

P. H. KERRIGAN San Francisco 

M. C. SLOSS San Francisco 

P. J. MURASKY San Francisco 

J. M. TROUTT San Francisco 

JAMES M. SEA WELL San Francisco 

PRANK H. SMITH Stockton, San Joaquin 

W. B. NUTTER Stockton, San Joaquin 



X Superior Court Judges. 

B. P. UNANGST San Laia Obispo 

GEORGE H. BUCK Redwood City, San Mateo 

J. W. TAGGART Sante Barbara, Santa Barbara 

M. H. HYLAND San Jose, Sante Clara 

HIRAM D. TUTTLE San Jose, Santa Clara 

A. L. RHODES San Jose, Santa Clara 

LUCAS F. SMITH Sante Cruz, Sante Cnw 

CHARLES M. HEAD Redding, Shaste 

STANLEY A. SMITH DownieviUe, Sierra 

J. S. BEARD Treka, Siskiyou 

A. J. BUCKLES Fairfield, Solano 

A. G. BURNETT Sante Rosa, Sonoma 

EMMETT SEA WELL Santa Rosa, Sonoma 

L. W. FULKERTH Modesto, StenislauB 

K. S. MAHON Sutter County 

JOHN F. ELLISON Red Bluff, Tehama 

J. W. BARTLETT Weaverville, Trinity 

W. B. WALLACE Visalia, Tulare 

U. W. NICOL Sonora, Tuolumne 

FELIX W. EWING San Buenaventura, Ventura 

K. E. GADDIS Woodland, Yolo 

KUGENE P. McDANIEL MarysviUe, Yuba 



TABLE OF CASES. 



Adams, Proutj t 304 

Adams, Sweeny t. 55S 

Agard ▼. Shaffer 723 

Alexander ▼. Weleker 302 

American Fire Insurance Company of Philadelphia v. Hart 678 

American Lead Pencil (Company, Fries v 610 

Ames ▼. Southern Pacific Company •••.. 728 

Arkle t. Beedie 459 

Arnold t. Producers' Fruit Company 738 

Baily y. Kreutzmann • 519 

Bair, Silva y 599 

Baker v. San Francisco Gas and Electric Company. 710 

Baker y. San Francisco Gas and Electric Company xviii 

Bank of Yolo y. Sperry Flour Company 314 

Barber, People y • xyiii 

Becker y. Schwerdtle 386 

Beedie, Arkle v 459 

Bell y. Staacke 186 

Ben Lomond Wine Company y. S^ndky..... 619 

Benson y. Bunting 462 

Bigelow y. City of Los Angeles •• ••.. 503 

Bills, Estate of xviii 

Board of Police Commissioners of San Francisco, Joues y 96 

Bories y. Union Building and Loan Assoc^'ation. 74, 79 

Bowers, First National Bank of Bedlands y 253 

Braun, Ex Parte 204 

Brown y. City of Yisalia 372 

Brown, CUrk y 93 

Brundage, Estate of 538 

Brundage y. Union Trust Company.. ••• 538 

Brush y. Smith 466 

Bunting, Benson y 462 

Butler, Pool y 46 

Butte County y. Merrill 396 

California Cured Fruit Association y. Stelling 713 

Calhihan y. James 291 

Callaway y. Wilson 421 

Cameron, Southern California Mountain Water Company y 283 

Campbell, EsUte of 72 

(xi) 



zii Table of Cases. 



Canty, Cutting Fruit Packing Company v 692 

Carter, Matter of 316 

Gayot, Hall y 13 

Chamberlain, Wormell y 485 

Chew Lan Ong, People y 550 

Christal, In re 523 

Chrones, People y xviii 

Chutnaeut, People y.. 682 

City of Los Angeles, Bigelow v 503 

City of San Jose, Harter y 659 

City of Viaalia, Brown y 372 

Clark T. Brown 93 

Cochran, Hibemia Savings and Loan Society v 653 

Cohen y. Cohen 534 

Cole, People y. 88 

County of Butte t. Merrill 896 

County of San Joaquin, Western Union Telegraph Company y...., 264 

County of Shasta, Swasey y 392 

County of Tuba y. Kate Hayes Mining Company. •••• 860 

Courtney, White Sewing Machine Company y • 674 

CraftoD Water Company, Craig y • 178 

Craig V. Crafton Water Company • 178 

Creeks, People y 529 

Crocker- Woolworth National Bank, Willey y 608 

Cummings, Hofsas y ••••• 625 

Cummings y. Kearney •••• 156 

Curran y. Holland 437 

Curtin v. Salmon Biver Hydraulic Gokl Mining and Ditch Company. . 308 
Cutting Fruit Packing Company v. Cauty... •••«. 692 

Diepenbrock, Woods v ., 65 

Donnelly v. Rees. ..•• ..,, 56 

Dowell, People v 493 

Drew, Newport Wharf and Lumber Company y 103 

Duarte, Harris y. 497 

East Bedlands Water Company, Bichey y • • . . . 221 

Equitable Gas Light Company, Gallagher y 699 

Estate of Bills xyiii 

Estate of Brundage • 538 

Estate of Campbell • 72 

Estate of Hittell 432 

Estate of Kasson 33 

Estate of Levy 639, 646 

Estate of McKeag 403 

Estate of Melone 831 

Estote of Potter 850,424 

Estate of Ryder 366 

Estate of Scott 485 



Table of Cases, xiii 



Estate of Scott zviii 

Estate of Vance 624 

Ex Parte Braun 204 

Faj y. Stubenranch 573 

First NatioDal Bank of Redlands v. Bowers 353 

Fisher, Wilson ▼ .xviii 

Fordyce, Sanchei ▼ 427 

Fries ▼. American Lead Pencil Companj 610 

Gallagher v. Equitable Gas Light Companj •••. 6^9 

Gaj, People ▼ •••••••••. 41 

Glover, People y 233 

Graj, Sweet Y • •• ••••..63,83 

Greer, Hittell t 432 

Gries, Kauffman V •••••• 295 

Grundel V. Union Iron Works • 564 

Grunsky, Miller y 441 

Gmwell V. Bocca 417 

Hall V. Cayot 13 

Harris y. Duarte 497 

Hart, American Fire Insurance Coaipany v ,, 678 

Harter y. City of San Jose 659 

Hartley v. Vermillion 339 

Hay y. Mason 722 

Hibernia Savings and Loan Society v. Cochian .... .....•.• • • • • • 653 

Hittell, Estate of 432 

Hittell V. Greer 432 

Hofsas V. Cumroings 525 

Holland, Curran v 437 

Hudson, MeCliutock y 275 

Hnrgren v. Union Mutual Life I usurnnce Com j»any 585 

Hyde, Jamison v 109 

In re Christal 523 

Jacobs y. Levy 646 

Jacobs, Levy y 639 

James, Oallahan v 291 

Jamison v. Hyde 109 

Jones v. Board of Police Commissionors of San Francisco 96 

Jones, Weis y xviii 

Easson, Estate of 33 

Kate Hayes Mining Company, County of Yuba v 360 

Katz y. Walkinshaw 116 

Kauffman v. Grics 295 

Kearney, Cmnmings v ....... 156 



ziT Table op Cask. 

Keelej, Logan y xviil 

Keith, People t 686 

Kelly ▼. Union Building and Loan Assooiation xviii 

Kenworthj v. Mast 268 

Krafts, Boberts v 20 

Kreutzmann, Baily Y , .... 5X9 

Laerabere y. Wise 554 

Lassing, Simon Newman Company y .....•..••.. 174 

Leung Oek, People y 323 

Leyy, Estate of 639^ g4g 

Leyy y. Jacobs 539 

Leyy, Jacobs y..,.. ...,. 646 

Levy, Bosenblum y, ••••• .. 646 

Lew Fook, People y 543 

Lewis, People y , 543 

Lindley y. Superior Court of Siskiyou County 220 

Lindy y. McChesney 33 351 

Logan y. Keeley xv\i\ 

Los Angeles, City of, Bigelow y 503 

Los Angeles Pacific Bailroad Company, Vinson y 151 

Los Angeles Traction Company, Stimson Mill Company y 30 

Maddux y. Walthall 412 

Madison y. Northwestern Mutual Life Insurance Company 475 

Mann v. Mann 326 

Manoogian, People y 592 

Mason, Hay y 722 

Mast, Kenworthy y 268 

Matter of Carter,.... • 316 

Matter of Moss ,,, xviii 

McCaughey y. McDuflSe xyiii 

McChesney, Lindy v 33^ 351 

McClintock y. Hudson 275 

McCloskey v. Tierney 101 

McDaniels, People y...... ... II3 

McDuffie, McCaughey y xyiii 

McGorray v. Superior Court of San Joaquin County 266 

McKeag, Estate of 403 

Meetz ▼. Mohr.. 667 

Melone, Estate of 831 

Melone y. Melone. .' , 831 

Merced Security Sayings Bank v. Simon 11 

Merrill, County of Butte y 896 

Merriman v. Wickersham 567 

Miller y. Grunsky 44I 

Mohr, Meetz y 667 

Moore, Ryder y 366 

Hoes, Matter of xyiii 



Tablb of Gashl xt 

Moef T. OdeU 385 

Moxl«j T. Teass 408 

Morphj T. Morphj 471 

Newport Wharf and Lumber Gompanj t. Drew 103 

Northwestern MatuJ life Insaiaaee Company, Madison t 475 

Oeeidental Mining and Petroleum Company, Swift v 161 

Odell, Moss ▼ 835 

Ogden, Paterson t • 48 

Otis, Tingley T. 71 

Paeifle Paving Company t. Yizelieh ••• 4 

Paterson t. Ogden 48 

People ▼. Chew Lan Ong 550 

People T. Barber • xriii 

People ▼. Chutnaeut 682 

People T. Chrones zriii 

People V. Cole 88 

People V. Creeks 529 

People V. Dowell 493 

People V. Gay 41 

People y. Glover 233 

People V. Keith 686 

People V. Leung Ock 323 

People V. Lew Fook 548 

People V. Lewis 543 

People V. Manoogian • • 592 

People V. MoDaniels • 113 

People V. Peiales 581 

People V. Stevens 488 

People V. Stratton 604 

People V. Teshara 633 

People V. Ward 628 

People V. Wardrip 229 

Perales, People V 581 

Police Commissioners of San Francisco, Jones v 96 

Police Court of City and County of San Francisco, Valentine v 615 

Pool V. Butler 46 

Potter, Estate of 350,424 

Potter, Sherman Brothers t 424 

Pratt T. Piatt 247 

Producers' Fruit Company, Arnold v 738 

Prouty V. Adams 304 

Quinn, Towle Brothers Company t • 382 

Bees, DonneUy V 55 

Biehqr ▼• Bast Bedlands Water Company 221 

Boberts V. Krafts • 20 



xvi Table of Cases. 



Rocea, Gruwell v , 417 

Rosenblum v. Levy 646 

Byder, Estate of 366 

Ryder v. Moore 366 

Salmon River Hydraulic Gold Mining and Ditch Company, 

Curtin v 308 

Sanchez v. Fordyce 427 

Ban Francisco Gas and Electric Company, Baker t xyiii 

San Francisco Gas and Electric Company, Baker v 710 

ijan Francisco Law and Collection Company v. State of California.. 354 

San Joaquin County, Western Union Telegraph Company v 264 

Ban Jose, Barter y 659 

Schwerdtle, Becker t. 386 

Scott, Estate of xyiii 

Scott, Estate of 485 

Shaffer, Agard y 725 

Shasta County, Swasey y 392 

Sherman Bros. y. Potter 424 

Sierra Railway Company, Walther y 288 

Silva y. Bair 599 

Simon, Merced Security Savings Bank y 11 

Simon Newman Company v. Lassing 174 

Sladky, Ben Lomond Wine Company v 619 

Smith, Brush v 466 

Smith y. Vance 624 

Soulo, Union Collection Company y 99 

Southern California Mountain Water Company v. Cameron 283 

Southern Pacific Company, Ames v 728 

Sperry Flour Company, Bank of Yolo y. 314 

Staacke, Bell v 186 

State of California, San Francisco Law and Collection Company v. . 354 

Stelling, CaHfomia Cured Fruit Association v 713 

Stevens, People v 488 

Stimson Mill Company v. Loa Angeles Traction Company 30 

fttratton. People y 604 

Stubenrauch, Fay y 573 

Superior Court of San Joaquin County, McGorray v 266 

Superior Court of Siskiyou County, Lindley v. 220 

Swasey v. County of Shasta 392 

Sweeny v. Adams 558 

Swett y. Gray 63,83 

Swift V. Occidental Mining and Petroleum Company 161 

Swortfiguer v. White 576 

Teass, Moxley y 453 

Teshara, People y 633 

Tierney, McCloskey V. 101 

Tingley V. Otis 71 



Table op Cases. xvii 



Towle Brothers Company v. Qninn 382 

Turloek Irrigation District, Turpen t 1 

Tnrpen t. Turloek Irrigation District I 

Union Building and Loan Association, Bories ▼... 74, 79 

Union Building and Loan Association, Kelly v xviii 

Union Collection Company t. Soule. • 99 

Union Iron Works, Orundel ▼ 664 

Union Mutual Life Insuranee Company, Hurgren y ••• 585 

Union Trust Company, Bnmdage v 638 

Valentine v. Police Court of City and County of San TYancisco. . . . 615 

Vance, Estate of 624 

Vance, Smith y 624 

Vermillion, Hartley V 339 

Vinson v. Los Angeles Pacific Railroad Company 151 

Visalia, City of, Brown v 372 

Vizelieh, Pacific Paving Company y • 4 

Walkinshaw, Katz y 116 

Walthall, Maddux V 412 

Walter v. Sierra Bailway Company 288 

Ward, People V 628 

Wardrip, People V 229 

Weis y. Jones • • .zyiii 

Welcker, Alexander y 302 

Western Union Telegraph Company y. County of San Joaquin ...•• • 264 

White, Swortfiguer v 576 

White Sewing Machine Company v. Courtney 674 

Wickersham, Marriman v 567 

Willey y. Crocker- Woolworth National Bank 508 

Wilson, Callaway y 421 

Wilson y. Fisher xviii 

Winrod v. Wolters 399 

Wise, Lacrabere y 554 

Wolters, Winrod y 399 

Woods v. Diepenbrock 55 

Wormell v. Chamberlain 485 

Yuba County y. Kate Hayes Mining Company ••• 360 



CASES NOT REPORTED. 



Raker t. San Franeiseo Gat and Eleetrie Company. Judgment 
affinned on the authority of Baker ▼. San Franeiseo Gas and 
Electric Company, 141 CaL 710 8. F. No. 2828 

Estate of Bills. Order granting a new trial reversed in pursuance 
of a stipulation L. A. No. 1478 

Estate of Scott. Order affirmed on the authority of Estate of Scott, 

141Qil.485 S. F. No. 3621 

Kelly ▼. Union Building and Loan Association. Order dissolving 
attachment reversed on the authority of Bories v. Union Build- 
ing and Loan Association, 141 GaL 74. Sac. No. 1013 

Logan V. Kelley. Judgment affirmed on the authority of Maddux 
v. Walthall, 141 CaL 412 Sac. No. 1148 

Matter of Moss. Appeals dismissed— ^ne for failure to file tran- 
script, the other on appellant's application Sac. No. 1120 

McCaughey v. McDufBe. Judgment and order denying a new trial 
reversed upon a review of the evidence L. A. No. 13oS 

People V. Barber. Appeal dismissed on the ground that the de- 
fendant had been discharged by reason of the expiration of his 
term of imprisonment Orim. No. 1019 

People V. Chrones. Judgment convicting the defendant of obtaining 
goods by false pretenses and order denying a new trial reversed 
for lack of corroborating testimony Grim. No. 1043 

Weis V. Jones. Order reversed on the authority of Bue ▼. Quinn, 
137 Cal. 651, and Weis v. Cain, 140 Gal. zvii L. A. No. 1133 

Wilson V. Fisher. Writ of mandate issued on the authority of Wil- 
son v. Fisher, 140 Cal. 188 B. F. No. 365» 

(zviu) 



CASES APPROVED, DISAPPROVED, CTIITICISED. 
AND DISTINGUISHED. 



CaliforniB Cared Fruit Abbh. ▼. Ainsworth, 134 Ca). 461. Distin- 

guiithed 721 

Ck>oper v. Monterej Co., 104 Gal. 438. DistinguiBhed 349 

Cross V. Kitts, 69 Cal. 217. Criticised 129 

Be Molera v. Martin, 120 Cal. 644« Overruled 498 

Hanson v. McCue, 42 CaL 303. Critieised 128 

Los Angeles v. Pomeroy, 124 Gal. 597. Distinguished 279 

People y. Supervisors, 10 Cal. 344. Distinguished • 322 

People V. Teshera, 134 Cal. 542. Distinguished 90 

Union Pav. et«. Co. v. McGovem, 127 CaL 638. Distinguished. ••• 160 

(xix) 



TABLE OF CASES CITED. 



Acovado ▼. Orr, 100 Cal. 293 689 

Ackley V. Chamberlain, 16 Cal. 181 650 

Acton V. BlundeU, 12 Meee. & W. 324 141, 142, 148, 150 

Adair V. White, 85 Ckl. 313 456, 457 

Adams, Estate of, 128 Gkl. 380 658 

Ah tong V. Earle Fruit Co., 112 Cal. 681 735 

Albers Commission Co. ▼. Sessel, 193 111. 153 572 

Alden V. County of Alameda, 43 Oal. 270 507 

Alexander ▼. City of Elizabeth, 66 N. J. L. 71 211 

Alden, In re, 78 Cal. 293 651 

Allen y. Brown, 39 Iowa, 330 517 

Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100 419 

American Type Founders' Co. ▼. Packer, 130 Gal. 459 68, 168, 198 

Andrews v. Board, 94 Me. 76 318 

Anglo-Nevada etc. Corp. y. Boss, 123 Gal. 520 69 

Apgar v. Woodston, 43 N. J. L. 57 588 

Appeal of Wolf, 13 AtL 764 411 

Arnold y. Producers' Fruit Co., 128 Cal. 637 740 

Atkinson y. Lorbeer, 111 Cal. 419 271 

Attorney-General y. Drummond, 1 Dru. & W. 353, 2 H. L. Cas. 837. 201 

Austin y. Dick, 100 Cal. 199 415 

Avery y. Maude, 112 Cal. 565 8 

Baker v. Southern California By. Co., 110 Cal. 455 289 

Baker v. Southern California By. Co., 126 Cal. 516 289 

Bakersfield Town Hall Assn. v. Chester, 55 Cal. 93 720 

Bancroft v. City of San Diego, 120 Cal. 432 507 

Banta y. Siller, 121 Cal. 414 520 

Barker v. Hurley, 132 Cal. 28 202 

Barnes v. Barnes, 95 Cal. 177 39 

Barnes y. Gilde, 117 Gal. 1 98 

Bamhart v. Edwards, 128 Cal. 575 697 

Bartlett y. O'Connor, 36 Pac. (Cal.) 513 132 

Bartlett Land Co. y. Saunders, 103 U. S. 316 456 

Bassett v. Salisbury Mfg. Co., 43 N. H. 569 146 

Banquier, Estate of, 88 Cal. 320 540 

Baxter v. Boberts, 44 CaL 187 614 

Beach v. Von Detten, 139 CaL 462 428 

Beardsley v. Hartford, 50 Conn. 542 123 

Beck v. Pasadena Water Co., 130 Cal. 53 27 

Bedell, Estate of, 97 Cal. 339 542 

Beech, Estate of, 63 Gal. 458 541,542 

Bell V. Bruen, 1 How. 169 262 

BeU y. Staacke, 137 Gal. 307 189 

Bell V. Staacke, 141 Gal. 186 498 

Bennett v. Wallace, 43 Cal. 25 617 

Bensiek V. Thomas, 66 Fed. 104 312 

Bensley v. Mountain Lake Water Co., 13 Cal. 307 53 

Benson V. Bunting, 127 Cal. 532 463 

Bergin, Estate of, 100 Cal. 376 541 

Bernard V. Sloan, 138 Cal. 746 355 

Beronio v. Ventura County L. Co., 129 Cal. 232 650 

(«) 



Table of Cases Cited. xxi 

Beny V. McCullough, 94 Ky. 247 431 

Berson ▼. Bwing, 84 Cal. 89 589 

Berwick V. Muir, 83 Cal. 373 32 

Bledfloe V. Decron, 132 Cal. 312 182 

Blood V. La Serena L. & W. Co., 113 Cal. 221 312 

Bloom V. Hazzard, 104 Cal. 310 706 

Bloom v. Bichards, 2 Ohio St. 391 123 

Blythe ▼. Ayres, 102 Cal. 259 40 

Board of fidueation, etc. ▼. Board of Trustees, etc., 129 Cal. 599. . . . 380 

Bode V. Lee, 102 CaL 583 165 

Bories v. Union Bldg. and Loan Assn., 141 Cal. 74 82 

Boston and W. B. C. v. Dana, 1 Gray, 97 124 

Bovard v. Kettering, 101 Pa. St. 185 124 

Bradford Investment Co. v. Joost, 117 Cal. 204 672, 734 

Brann V. Blum, 138 Cal. 644 470 

Brehmer ▼. Lyman, 71 Vt. 98 567 

Brennan ▼. Partridge, 67 Mich. 453 514 

Brewer ▼. Houston, 58 Cal. 345 457 

Brewster v. Hartley, 37 Cal. 15 18 

Brewster ▼. Houston^ 58 Cal. 345 458 

Briggs V. Partridge, 64 N. Y. 357 440 

Brison v. Brison, 75 Cal. 527 61, 389, 390, 391 

Brison V. Brisou, 90 Cal. 323 165 

Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 242 664 

Brown's Appeal, 17 Pa. St. 484 517 

Brown, Estate of, 80 Cal. 381 540 

Brown V. Bandall, 36 Conn. 56 5S9 

Buckman V. Hatch, 139 Cal. 53 10 

Bumham ▼. Grand Trunk By. Co., 63 Me. 301 733 

Bums V. Sennett, 99 Cal. 371 735 

Burt V. Wilson, 28 Cal. 638 112 

Byington ▼. Simpson, 134 Mass. 169 440 

Byrne, In re, 112 Cal. 176 643 

California Cured Fruit Assn. ▼. Ainsworth, 134 Cal. 461 721 

Callender v Patterson, 66 Cal. 357 160 

Camp, Estate of, 131 Cal. 470 406,411 

Canal Co. y. Shugaer, L. B., 6 Ch. App. Cas. 483 147 

Capital Gas Co. v. Young, 109 Cal. 140 706 

Carpenter, Estate of, 94 Cal. 406 596 

Carpenter V. Cook, 132 Cal. 621 529 

Carson v. Blazer, 2 Benn. 484 123 

Carson V. McPhetridge, 15 Ind. 327 431 

Casebeer V. Diahoble, 13 Neb. 465 5S9 

Casebeer V. Bice, 18 Neb. 203 589 

Casey, Ex parte, 71 Cal. 269 627 

Cashman V. Harrison, 90 Cal. 297 734 

Castro V. Barry, 79 CaL 443 456 

Cave V. Crafts, 53 Gal. 135 180,183,184 

Central Irr. Dist. ▼. De Lappe, 79 Cal. 351 456 

Chasemore ▼. Bichards, 2 Hurl. & N. 168, 7 H. L. Cas. 349 

144, 145, 146, 148 

Chever V. Ching Honff Poy, 62 Cal. 71 369 

Chicago Clock Co. v. Tobin, 123 Cal. 375 575 

Chicago etc. Co. v. Chicago, 143 111. 641 53 

Chicago etc. B. B. Co. ▼. Bandolph, 53 111. 555 732 

Chieo High School Board v. Supervisors, 118 Cal. 115 380 

Chipley v. Farria, 45 Gal. 527 457 

Churchill v. Flournoy, 127 Cal. 355 175 

Churchill V. Bose, 136 Cal. 576 27 



Tablb of Cases Cited. xxiii 

Dickey V. Hurlburt, 5 Gil. 344 481 

Dietrich v. PennBylTania etc R. R. Co., 71 Pa. St. 436 732, 736 

Directors etc. y. Abila, 106 Oal. 365 874 

Dobbins v. Miesouri etc. R. R. Co., 91 Tex. 62 567 

Donahue V. County of Will, 100 lU. 94 319,322 

Dongan ▼. District Court, 6 Colo. 534 322 

Dougherty ▼. Austin, 94 Cal. 601 397,727 

Dowling V. Polack, 18 Oal. 626 690 

Downing ▼. Rademacher, 62 Pac. 1055 391 

Doyle, In re, 73 Cal. 564 166 

Drathman y. Cohen, 139 Cal. 310 168, 194 

Dreyfus y. Badger, 108 Oal. 58 457 

Dryden y. Parrote, 61 Neb. 339 470 

DufBeld y. Michaels, 97 Fed. 825 178 

Dulton y. Shelton, 3 Cal. 207 816 

Duncan y. Hawn, 104 (M. 10 95 

Eek y. Hoffman, 65 Cal. 501 316 

Eddelbuttel y. DurreU, 55 Oal. 279 168 

Eddy V. Simpson, 3 Cal. 253 135 

El Dorado Co. y. Meiss, 100 Cal. 273 897 

Emerson y. McWhirter, 133 Cal. 515 294 

Engle, Estate of, 124 Cal. 292 541 

English V. Johnson, 17 Cal. 116 123 

Erie Iron Works y. Barber, 102 Pa. St. 156 614 

Estate of Adams, 128 Cal. 380 652 

Estate of Banquier, 88 Cal. 302 540 

Estate of Bedell, 97 Cal. 339 642 

Estate of Beech, 63 Cal. 458 641, 642 

Estate of Bergin, 100 Cal. 376 641 

Estate of Brown, 80 Cal. 381 640 

Estate of Camp, 131 Cal. 470 406,411 

Estate of Carpenter, 94 Cal. 406 696 

Estate of Coan, 132 Cal. 401 541,542 

Estate of Cook, 137 Cal. 184 648 

Estate of Corwin, 61 Cal. 160 861, 425 

Estate of Crooks, 125 Cal. 459 869 

Estate of Deyincenzi, 119 Cal. 498 648,644 

Estate of Engle, 124 Cal. 292 541,542 

Estate of Fair, 132 Cal. 523 527 

Estate of Fair, 136 Cal. 79 529 

Estate of Gareelon, 104 Cal. 584 870 

Estate of Hass, 97 Cal. 232 627 

Estate of Harrison, 135 Cal. 7 541 

Estate of Healy, 122 Cal. 162 643 

Estate of Kasson, 127 Cal. 496 35, 40, 853 

Estate of Kasson, 135 Cal. 1 86 

Estate of Marti, 132 Cal. 666 299,300 

Estate of Matheny, 121 Cal. 267 648 

Estate of More, 121 Cal. 635 16 

Estate of Muersing, 103 Cal. 585 540,542 

Estate of Moah, 73 Cal. 590 C61 

Estate of Ogburn, 105 Cal. 95 650 

Estate of Pennock, 20 Pa. St. 268 300 

Estate of Richardson, 120 Cal. 344 540, 541 

Estate of Schroeder, 46 Cal. 316 575 

Estete of Smith, 51 Cal. 563 644 

Estate of Toomes, 54 Cal. 509 694 

Estate of Vaughn, 92 Cal. 193 369 



2:xiy Table of Cases Cited. 

Estate of Walkerly, 81 Cal. 579 652 

Estate of Walkerly, 108 Cal. 627 648 

Estate of Wax, 106 Cal. 343 596 

Estate of Wiard, 83 Cal. 619 74 

Estate of Wickersham, 138 Cal. 355 370 

Evans, In re, 106 Cal. 565 410 

EvansviUe ete. R. R. Co. v. Griffin, 100 Tnfl. 221 567 

Eversdon V. Mayhew, 65 Cal. 167 719 

Ewald V. Northwestern etc. Ins. Co., 60 Wis. 431 480, 482 

Exchange Bank v. Hubbard, 62 Fed. 116 440 

Ex parte Casey, 71 Cal. 269 627 

Ex parte Frank, 52 Cal. 606 206 

Ex parte Heydenfeldt, 127 Cal. 456 643 

Ex parte HoUis, 59 CaL 408 627 

Ex parte Macdonald, 76 Ala. 603 357 

Ex parte Pflrnnann, 134 Cal. 143 207,213 

F. A. Hihn Co. y. Fleckner, 106 Cal. 95 696 

Fair, Estate of, 132 Cal. 523 527 

Fair, Estate of, 136 Cal. 79 520 

Falk V. Turner, 101 Mass. 496 390 

Fallon V. Brittan, 84 Cal. 511 675 

Fans V. Hoberg, 134 Ind. 269 567 

Farmers ' Bank v. Wilson, 58 Gal. 600 17 

Fambam v. Boland, 134 Cal. 151 275, 414 

Faust V. Mason, 47 Cal. 7 617 

Field V. Austin, 131 Cal. 379 63,178 

Fisher V. Zumwalt, 128 Cal. 493 363 

Flach V. Gottschalk Co., 88 Md. 368 571 

Forbell V. City of New York. 164 N. Y. 522 149 

Ford V. Williams, 21 How. 289 4.^0 

Fragley V. Phelan, 126 Oal. 383 209 

Frank, Ex parte, 52 Cal. 606 20(5 

Frasher V. Rader, 124 Cal. 134 322 

Freeman V. Rahm, 58 Cal. Ill 360 

Fresno etc. Co. v. Southern Pac. Co., 135 Cal. 202 13<i 

Gale V. Best, 78 Cal. 235 4.1 

Gallagher v, Market-Street Ry. Co., 67 Cal. 13 521 

Galloway v. Rouse, 63 Cal. 280 3oS 

Gannett v. Albree, 103 Mass. 372 1 73 

Garcelon, Estate of, 104 Cal. 584 37o 

Gaylord v. Place, 98 Cal. 472 fi.^o 

Georges Creek Coal etc. Co. v. County Commrs., 59 Md. 2r>2 Os 

Gemet v. Lynn, 31 Pa. St. 94 331 

Giant Powder Co. v. San Biego Flume Co., 78 Cal. 196 3.3 

Gilson V. Leonard, 143 El. 182 567 

Gilletti V. Saracco, 110 Cal. 428 294 

Golden Gate Mill Co. v. Machine Works, 82 Cal. 184 697 

Goldman V. Davis, 23 Cal. 256 734 

Gordon Hardware Co. v. San Francisco etc. R. R. Co., 86 Cal. 620. 32 

Gould V. Eaton, 111 Cal. 639 130, 132, 140 

Graff V. Mayor etc., 10 Md. 544 53 

Graham v. Farmers' etc. Bank, 116 C^l. 466 262 

Graham V. Martin, 64 Ind. 567 87 

Grant V. McArthur, 137 Cal. 270 579 

Graybeal v. Powers, 76 N. C. 66 456 

Great Western R. R. Co. v. Helm, 27 111. 198 291 

Green v. Liter, 8 Cranch, 249 , .,* ., 124 



Table op Cases Cited. xr? 

Gregory v. Bonne^, 135 CU. 589 570 

Greig v. Biordan, 99 Cal. 322 311 

Gribble y. ColumbuB Brewing Ck>., 100 Cal. 71 312 

Guilfoyle, In re, 96 Cal. 698 115 

GuBhee ▼. City of New York, 42 App. Diy. 37, 58 N. Y. Supp. 967. . 685 
Gtiy ▼. Bibend, 41 Cbl. 322 734 

Haaa, Estate of, 97 CtL 232 627 

Haight V. Tryon, 112 CaL 6 167 

Hale V. McLea, 58 CaL 678 129, 280 

Hallinger v. Davis, 146 U. 8. 314 662 

Hamilton v, Delhi Min. Co., 118 Cal. 153 32 

Hammer ▼. Garfield etc. Co., 130 U. 8. 291 294 

Hanson v. McCne, 42 (M. 303 128, 130, 131, 140 

Harris v. Harrison, 93 Cal. 676 124 

Harris v. Kellogg, 117 Cal. 489 294 

Harrison, Estate of, 135 CaL 7 641 

Hart ▼. Church, 126 Cal. 471 178 

Havemeycr v. Superior Court, 84 CaL 378 720 

Haverstick y. Trudel, 51 CaL 431 627 

Hay y. Gloeter, 88 CaL 665 391 

Hayden y. Memphis, 100 Tenn. 582 318 

Hayes y. Shattuck, 21 Cal. 51 8 

Haywood y. Shreye, 44 N. J. L. 96 124 

Healy, Estate of, 122 Cal. 162 542 

Heathman T. Holmes, 94 CaL 291 649,651,652 

Heflfran y. Hutchins, 160 ni. 554 322 

Heinlen y. Heilbom, 97 CaL 101 457 

Henderson v. People, 124 111. 614 546 

Heney V. Peeoli, 109 OaL 60 462 

Herrold y. 8outh, 34 Cal. 124 474 

Hess y. 8ingler, 114 Mass. 56 [,', 300 

Hewes y. Caryille Mfg. Co., 62 CaL 516 358, 359 

Heydenfeldt, Estate of, 127 CaL 456 .643 

Heydenf eldt, In re, 117 Cal. 551 647 

Heydenfeldt v. Jacobs, 107 CaL 378 627 

Hibemia 8ayings & Loan Society v. Lewis, 117 OaL 577 657 

Higgins y. Higgins, 46 CaL 261 462 

Higgins V. Manson, 126 CaL 467 18 19 

Higgins V, Senior, 8 Mees. & W. 134 '44O 

Hill y. Newman, 5 CaL 446 I35 

Himmelman y. Henry, 84 CaL 104 294 

Hoadley y. San Francisco, 50 CaL 273 662 

Hoboken y. Gear, 27 N. J. L. 273 319 321 

Hoff y. Funkenstein, 54 CaL 233 100 

Holden y. Hoyt, 134 Mass. 184 311 

Holland y. Zollner, 102 OaL 633 596,597 

HoUiday y. Holliday, 123 CaL 26 589 

Hollis, Ex parte, 59 OaL 406 627 

Holloway y. McNear, 81 CaL 156 735 

Holmes V. Hoppe, 140 CaL 212 168,194 

Hook V. George, 108 Mass. 324 87 

Hotel Co. y. Wade, 97 U. S. 13 312 

Houghton y. Blake, 5 CaL 240 32 

Hughes y. Alsip, 112 Cal. 587 695 

Hughes y. Wheeler, 76 CaL 230 518 

Hull y. Superior Court, 63 OaL 179 618 

Hunter y. Bryant, 98 OaL 247 8 

Huston y. Leach, 53 CaL 262 129 

Hyde y. Mongan, 88 Cal. 319 719 



xxyi Table of Cases Cited. 

Illinois Trust ete. Bank ▼. Pacific B7. Co., 1 17 Cal. 332 312 

In re Allen, 78 Cal. 293 («51 

In re Byrne, 112 Cal. 176 643 

In re Davis, 69 Cal. 458 652 

In re Doyle, 73 Cal. 564 166 

In re Evans, 106 Cal. 565 410 

In re Heydenfeldt, 117 Cal. 551 647 

In re James, 99 Cal. 376 470 

In re Johnson, 98 Oal. 542 409, 411 

In re Kennedy, 104 Cal. 429 532 

InreLaWff, 86 Cal. 151 650,652 

In re Ligget, 117 Cal. 352 651 

In re Skerrett, 80 Cal. 68 427 

In re Smith, 99 Cal. 449 652 

In re Williams, 102 Oal. 81 410 

Irvine ▼. Tarbat, 105 Cal. 237 457 

Irving V. Cunningham, 58 Cal. 306 448 

Jackson v. Harsen, 7 Cow. 323 330 

James, In re, 99 Cal. 376 470 

Johnson, In re, 98 Cal. 542 409, 411 

Jones V. Qridley, 20 E:an. 584 431 

Jones V. Jones, 38 Cal. 585 474 

Jones V. Jones, 71 Cal. 89 589 

Joost V. Sullivan, 111 Cal. 286 32 

Kasson, Estote of, 127 Cal. 496 35, 40, 353 

Kasson, Estate of, 135 Cal. 1 36 

Katz V. Walkinshaw, 141 Cal. 116 281 

Kauffman v. Maier, 94 Cal. 269 69, 175, 231, 232 

Kaufman v. Shain, 111 Cal. 16 631 

Keith v. Electrical Engineering Co., 136 Cal. 181 201 

Keller v. West Bradley Mfg. Co., 46 Hun, 348 571 

Kelly V. Mack, 49 CaL 523 191 

Kelly V. Natoma W. Co., 6 Oal. 108 135 

Kelly V. Ning Yung Assn., 138 Cal. 602 1.'35, 355 

Kennard v. Louisiana, 92 U. 8. 480 414 

Kennedy, In re, 104 Cal. 429 532 

Kennedy v. Chase, 119 Cal. 640 567 

Kenny v. Hudspeth, 59 N. J. L. 322 319 

Kent V. Williams, 114 Cal. 537 12 

Keyes v. Cyrus, 100 Cal. 322 652 

Kimball v. Richardson, 111 Cal. 386 695 

Kimball v. Tripp, 136 Cal. 634 61 

King V. Southern Pac. Co., 109 Cal. 96 289 

Kirkwood v. Soto, 87 Cal. 397 727 

Klokke V. Escallier, 124 Cal. 297 294 

Knight V. Boche, 66 Cal. 17 167 

Knight V. Tripp, 121 Cal. 674 61 

Knott V. Peden, 84 Cfel. 299 192 

Kyle V. Craig, 125 CaL 116 168 

Lafargue ▼. Harrison, 70 Cal. 385 262 

Lahiflf, In re, 86 Cal. 151 650, 652 

Lake Shore etc. By. Co. v. Bosenzweig, 113 Pa. St. 536 732 

Lane v. Turner, 114 Cal. 396 697 

Lanz V. Fresno etc. Bank, 125 Cal. 458 76 

Lauer v. Estes, 120 Cal. 652 415 

Laughlin ▼. Wright, 63 CaL 113 650 



Table of Cases Cited. rxvii 

Lee V. Dick, 10 Pet. 482 262 

Lefforge v. State, 129 Oal. 551 606 

Leonis v. Leffingwell, 126 Cal. 372 , 427 

Lewis V. Sumner, 13 Met. 269 9 

Ligget, In re, 117 Cal. 352 651 

lolly ▼. Parkinson, 91 Cal. 655 521, 522 

Lind8le7 v. Coats, 1 Ohio, 248 124 

London ete. Bank v. Parrott, 125 Cal. 472 262 

Long ▼. Saufley, 89 Cal. 439 734 

Lord 7. Baldwin, 6 Pick. 352 517 

Los Angeles v. Pomeroy, 124 Cal. 597 279, 280 

Los Angeles ▼. Pomeroy, 124 Cal. 622 131, 140, 150 

Los Angeles By. Co. y. Bumpp, 104 Cal. 20 50 

Loneks v. Bdmondson, 18 Cal. 203 68 

Low V. McCallan, 64 Cal. 2 68 

Lubbock y. MeMann, 82 Cal. 226 651 

Lytton V. Baird, 95 Lid. 349 589 

Mabb y. Stewart, 133 CaL 559 29 

Macdonald, Ex parte, 76 Ala. 603 357 

Mackin y. Portland Gas Co., 38 Or. 120 708 

Mahon^ y. Bostwick, 96 Cal. 53 465 

Malcomaon v. Harris, 90 Cal. 262 153 

Malone y. Boy, 107 Oal. 518 465 

Maloney y. Hefer, 75 Oal. 422 651 

Marietta etc. B. B. Co. y. Stephenson, 24 Ohio St. 48 291 

Markley v. Cape May, 55 N. J. L. 105 319 

Marks y. Keenan, 140 Cal. 33 7 

MarshaU v. Taylor, 98 Cal. 55 85 

Martel y. Meehan, 63 Cal. 47 623 

Marti, Estate of, 132 Cal. 666 299, 300 

Martin v. Matfield, 49 Cal. 42 165 

Martinoyich y. Marsicano, 137 Cal. 354 368, 369 

Matheny, Estate of, 121 Gal. 267 648 

Matthews y. Bousee, 51 N. J. L. 30 567 

Mauran v. Bullus, 16 Pet. 533 202 

McCann y. Sierra County, 7 C^l. 121 507 

McCarthy y. Loupe, 62 Cal. 299 113 

McCarthy y. Mt. Tecarte etc. Co., 110 Cal. 692 602 

McCasland y. O'Brien, 57 111. App. 636 262 

McCoy y. Southern Pac. Co. 94 Cal. 568 289, 290 

McDonald y. Bear Eiver etc. Co., 13 Cal. 233 135 

McDonald y. Canniflf, 99 Cal. 391 429 

McDowell y. His Creditors, 103 Cal. 264 650 

McGeary y. Catchwell, 129 Cal. 389 113 

McGraw v. Friend & Terry Lumber Co., 120 Cal. 574 615 

McGregor v. Supervisors, 37 Mich. 389 318 

McBae v. Wilmington etc. B. B. Co., 88 N. C. 532 733 

Mendenhall y. Paris, 84 Cal. 193 456 

Melde y. Beynolds, 120 Cal. 234 42 

Mercer v. State, 17 Tex. App. 452 609 

Merguire y. O'Donnell, 103 Cal. 50 474 

Merrick y. Board, 41 Mich. 630 318 

Merrill y. Pacific Transfer Co., 131 Cal. 582 705 

Meyer v. City of San Diego, 62 Pac. 211 284, 287 

Michaels y. Hain, 78 Hun, 499 61 

Miller v. Ewing, 6 Cush. 34 330 

Miller y. MiUer, 129 HI. 630 331 

Milwaukee Co. v. Ptileetine, 128 CkL 74 735 



xxvin Table op Cases Cited. 

Mining Co. ▼. Bullion Min. Co., 9 Nev. 240, 4 Saw. 634 420 

Mining Debris Case, 9 Saw. 441, 18 Fed. 753 362 

Minor v. Kidder, 43 Cal. 236 561 

MofFatt y. Eenney, 174 Mass. 311 567 

Mono County v. Flanigan, 130 Cal. 108 684 

Montefiori v. Montefiori, 1 W. Black. 262 62 

Moore v. Douglas, 132 Cal. 399 173 

Moore v. Wilkinson, 13 Cal. 478 457 

More, Estate of, 121 CaL 635 16 

More V. More, 133 Cal. 489 G3, 368, 369 

More V. Superior Court, 64 Cal. 345 618 

Morgan y. King, 30 Barb. 16 123 

Morrison y. Dapman, 3 Cal. 255 427 

Morrison y. McCue, 45 Cal. 118 632 

Morton y. Broderick, 118 Cal. 474 208 

Moses y. Brooklyn Life Ins. Co., 50 Ga. 196 481 

Moss y. OdeU, 134 Cal. 464 336, 338 

Muersing, Estate of, 103 Cal. 585 540, 542 

Myres v. Surryhne, 67 Cal. 657 113 

Nesbit y. Macon Bank etc. Co., 12 Fed. 686 18 

Newell y. Newell, 14 Kan. 202 390 

Newman y. Smith, 77 CaL 26 391 

Newman y. Qyerland Pac. By. Co., 132 Cal. 73 175, 621 

Newport Wharf and Lumber Co. y. Drew, 125 Cal. /)8o 104 

Nichols V. McLean, 101 N. Y. 533 319 

Nicholson v. Tarpey, 89 Cal. 617 734 

Noah, Estate of, 73 Cal. 590 651 

Noonan y. Nunan, 76 Cal. 44 358 

Nordholt y. Nordholt, 87 CaL 552 391 

Norris y. Androscoggin B. B. Co., 39 Me. 273 291 

North Pacific Cycle Co. y. Thomas, 26 Or. 381 470 

Nowell y. Boston Academy, 130 Mass. 209 394 

Nugent y. Powell, 4 Wyo. 201 411 

O'Calligan y. Bode, 84 CaL 489 92 

O'Connor y. Frasher, 66 CaL 499 457 

O'Donnell y. Merguire, 131 CaL 527 470 

Ogbum, Estate of, 105 CaL 95 650 

O'NeU y. Freeholders etc., 41 N. J. L. 161 53 

Owen y. Pomona L. and W. Co., 131 CaL 530 168, 192, 193 

Pacific Bank y. De Bo, 37 CaL 538 720 

Pacific Mutual Ins. Co. y. Fisher, 106 Cal. 224 697 

Packwood y. Brownell, 121 CaL 478 272, 273 

Painter y. Pasadena L. and W. Co., 91 CaL 74 130 

Pardy y. Montgomery, 77 CaL 326 55 

Parker y. Portland Pub. Co., 69 Me. 173 567 

Parsons y. Parsons, 101 Wis. 83 411 

Patch y. Miller, 125 Cal. 240 165, 166 

Patent Brick Co. v. Moore, 75 CaL 211 32 

Patterson y. Hanley, 136 CaL 265 275, 414 

Peck y. New York Central etc. R. B. Co., 70 N. Y. 587 733 

Pennock's Estate, 20 Pa. St. 268 300 

People y. Appraisers, 33 N. Y. 461 122 

People y. Arlington, 131 CaL 231 492. 690 

People y. Arnold, 43 Mich. 303 90 

People y. Arrighini, 122 CaL 121 596, 597 

People y. Barker, 137 CaL 557 689 

People y. Barnes, 2 Idalio, 161 609 



Table of Cases Cited. zzix 

People ▼. Board of SuperviBors, 27 Cal. 655 98 

People ▼. Brenhara, 3 Cal. 487 431 

People V. Campbell, 138 Cal. 11 414 

People V. Gease, 80 Mich. 576 606 

People V. Cebulla, 137 Cal. 314 686 

People V. Chapin, 104 N. Y. 96 98 

People ▼. Chavez, 103 Cal. 407 690 

People V. Chuey Ying Git, 100 Cal. 437 490 

People ▼. Conkling, 111 Cal. 624 532 

People V. Cowgill, 93 Oal. 596 690 

People ▼. Cowles, 13 N. Y. 356 431 

People ▼. CriBpi, 115 Cal. 55 532 

People ▼. De Witt, 68 Cal. 584 532 

People V. Dolan, 96 Cal. 315 546 

People V. Durrant, 116 Cal. 179 531 

People V. Elmore, 35 Cal. 653 17 

People V. Farringfton, 74 Pac. 288 233 

People V. Fitzgerald, 138 Cal. 45 492 

People ▼. Flood, 102 Oal. 330 69, 70 

People V. French, 12 Abb. N. C. 156 98 

People ▼. GoldenBon, 76 Cal. 348 622 

People V. Greene, 74 Cal. 400 403 

People V. Hecker, 109 Cal. 462 239 

People ▼. Henshaw, 76 Cal. 436 208, 209, 217 

People V. Higgins, 15 111. 110 322 

People V. HiU, 125 Cal. 16 273 

People V. Hoge, 55 Oal. 612 209 

People ▼. Huntington, 138 Cal. 261 650 

People V. Jacobs, 49 Cal. 384 688 

People ▼. Jama, 57 Cal. 118 237 

People V. Johnson, 106 Cal. 294 689 

People ▼. Kaiser, 119 Cal. 456 609 

People V. Krusiek, 93 Cal. 79 85 

People V. Lambert, 120 Cal. 170 688 

People y. Lavelle, 71 Oal. 351 695, 596 

People ▼. Lee Fook, 85 Cal. 300 594 

People y. Lennox, 67 Cal. 115 552 

People V. Lodi High School Dist., 124 Cal. 604 381, 480 

People y. Lonnen, 139 Cal. 634 690 

People y. Lopez, 135 Cal. 23 690 

People y. Martin, 60 Cal. 153 209, 211 

People y. McCarthy, 115 Cal. 255 596, 698 

People y. McLean, 135 Cal. 309 685 

People y. Metheyer, 132 Cal. 330 598 

People y. Mitchell, 94 Cal. 550 532 

People y. Murback, 64 Cal. 372 575 

People V. Newcomer, 118 Cal. 263 232 

People y. NoU, 20 Cal. 164 562 

People y. O'Brien, 96 Cal. 180 231 

People y. O'Neal, 67 Cal. 378 492 

People y. Patterson, 124 Cal 102 690 

People y. Philbon, 138 Cal. 530 90 

People y. Prewitt, 124 Oal. 7 272 

People y. Bichards, 136 Cal. 127 490 

People y. Samonset, 97 Cal. 448 86, 87 

People y. Sapders, 114 Cal. 216 232 

People y. Scott, 123 Cal. 434 684 

People y. Scale, 62 Cal. 71 273 

People y. Southern, 118 Cal. 359 68 

People y. Sprague, 53 Cal. 491 498 



XXX Table of Cases Cited. 

People V. Superior Court, 100 Cal. 114 77 

People V. Superviaore, 10 Cal. 344 323 

People V. Supervisore of "Weatchester, 12 Barb. 446 US 

People V. Swist, 136 Cal. 521 401, 690 

People V. Teshara, 134 Cal. 542 HO 

People V. Union Banking Assn., 127 Cal. 400 75, 81 

People V. Wallace, 89 Cal. 158 5X2 

People V. Wallace, 109 Cal. 613 85 

People V. Ward, 134 Cal. 301 62» 

People 7. Ward, 138 Cal. 684 6:il 

People y. Wells, 100 Cal. 231 fiS4 

People V. Westlake, 62 Cal. 307 241 

People V. Wheeler, 60 Cal. 581 521 

People V. Williamson, 135 Cal. 415 210 

People V. Wilmot, 139 Cal. 103 6K8 

People V. Wong Bin, 139 Cal. 60 233 

Peterson v. Chicago etc. By. Co., 80 Town, OS 733 

PettingiU v. Bideout, 6 N. H. 454 124 

Pfirrmann, Ex Parte, 134 Cal. 143 207, 213 

Phillips V. Sanger Lumber Co., 130 Gal. 431 311, 312 

Pico V. Coleman, 47 Cal. 65 453 

Pierce v. Bobinson, 13 Cal. 127 61 

Pierce v. State, 13 N. H. 542 123 

Pixley V. Clark, 35 N. Y. 520 146, 147 

Pool V. Simmons, 134 Cal. 621 47 

Porath V. State, 90 Wis. 527 609 

Powell V. Patterson, 100 (Jal. 236 313 

Powell V. Sims, 5 W. Va. 4 .• 123 

Powers V. Jackson, 50 Cal. 429 4.36 

Pratt V. Browne, 135 Cal. 650 429 

Price V. Beeves, 38 Cal. 457 202 

Quigley V. Gillett, 101 Cal. 462 294, 420 

Bauer v. Eay, 128 Cal. 523 165, 190 

Beaume v. Chambers, 22 Mo. 54 124 

Bedigan v. Boston etc. B. B. Co., 155 Mass. 44 567 

Beed v. Grant, 4 Cal. 176 623 

Bey V. Von Detten, 73 Pac. 1131 428 

Bhoda V. Alameda County, 52 Cal. 350 507 

Bice V. Gilbert, 173 111. 349 18 

Bichards v. Dower, 81 Cal. 44 293 

Bichards v. Wolfing, 98 Cal. 195 45 

Bichardson, Estate of, 120 Cal. 314 540, 541 

Bichardson v. Butler, 82 Cal. 174 644 

Bichardson v. Compter, 23 Cal. 649 8 

Bicketts v, Johnson, 8 Cal. 36 124 

Boach V. Caraffa, 85 Cal. 437 202 

Bobinson v. Lodge, 114 Cal. 41 3,38 

Bodgers v. Central Pac. B. B. Co., 67 Cal. 008 614 

Boebling's Sons Co. v. Bear Valley Irr. Co., 99 Cal. 4V8 :i2 

Bogers v. Duflf, 97 Cal. 66 696 

Bondell v. Fay, 32 Cal. 354 720 

Bue V. Quinn, 137 Cal. 651 Or>8 

Bussum V. St. Louis Mut. Life Ins. Co., 1 Mo. App. 228 480 

Butledge v. Crawford, 91 Cal. 632 415 

Byan v. Altschul, 103 Cal. 177 465 

Salcido V. Boberts, 136 Cal. 670 414 

Sandfoss v. Jones, 35 Cal. 481 390 

San Diego ▼. Pacific Beach Co., 112 Cal. 61 312 



TabiiE of Cases Cited. xxxi 

8an Francisco v. Liverpool etc. Ins. Co., 74 CJal. 113 210 

Ban Francisco y. Pennie, 93 Cal. 465 695 

Ban Francisco v. Western Union Tel. Co., 96 Cal. 140 265 

San Francisco Savinsa Union v. Lung, 123 Cal. 113 8 

Ban Joaquin L. and W. Co. v. West, 99 Cal. 347 575 

San Jose Sav. Bank v. Stone, 59 Cal. 187 ; 734 

San Luis Obispo v. Hendricks, 71 Cal. 246 8 

Saunders v. Hanes, 44 N. Y. 365 380 

Saunders v. La Purlssima Gold Min. Co., 125 Cal. 159 45 

Sawyer v. Vermont etc. B. R. Co., 105 Mass. 190 291 

Sajward ▼. Houghton, 119 Cal. 545 707, 70S 

Schmidt ▼. Bauer, 80 Cal. 565 567 

Schnittger v. Bose, 139 Cal. 656 623 

Sehoenf eldt v. State. 30 Tex. App. 695 609 

Schroeder, Estate of, 46 Cnl. 316 575 

Schwerdtle ▼. County of Placer, 108 Cal. 599 348, 3 19 

Scrurity Savings Bank etc. Co. v. Hinton, 97 Cal. 214 ?.}2 

Seeley v. Peters, 10 111. 130 124 

Serrano v. Rawson, 47 Cal. 55 450, 4.').'? 

Sewall V. Robert, 115 Mass. 276 411 

Shaffer v. Lacy, 121 Cal. 574 K.') 

Shain v. Sresovich, 104 Cal. 406 70.> 

Shaw V. Lawless, 5 Clark & F. 129 300 

Sherman v. Buick, 32 Oil. 241 347 

Sherwood v. Kyle, 125 Cal. 652 69 

Sickles V. Manhattan Gas Light Co., 64 How. Pr. 33 708, 709 

Siddall V. Clark, 89 Cal. 321 707 

Sika V. Chicago etc. Ry. Co., 21 Wis. 370 291 

Silverman v. Gundelfinger, 82 Cal. 548 643 

Silvester v. Coe Quartz Min. Co., 80 Cal. 513 32 

Simmons v. Hamilton, 56 Gal. 493 166 

Skerrett, In re, 80 Cal. 63 427 

Skinner v. Hall, 69 Cal. 195 650 

Smelting Co. v. Kemp, 104 U. 8. 636 457 

Smith, EsUte of, 51 CaI. 563 644 

Smith, In re, 99 Oal. 449 652 

Smith V. City of Brooklyn, 160 N. Y. 357 148, 150 

Smith V. City of Brooklyn, 18 App. Div. 340, 46 N. Y. S-inp. 141 

Smith V. Hill,' 89 Cal. *i22 *'.!*/. !////////// 293 

Smith V. Mason, 122 Cal. 426 391 

Smith V. Schiele, 93 Cal. 144 570 

Smith V. State, 108 Ala. 1 609 

Smith V. Westerfield, 88 Cal. 37S 627 

Soberanes v. Soberanes, 97 Cal. 140 391 

Southern Pac. R. R. Co. v. Dufour, 9o Cal. 610 130, 132, 140 

Southern Cal. Ry. Co. v. Slauson, 138 Cal. ?.V2 136 

Spinner v. New York etc. R. R. Co., 67 N. Y. 153 291 

Spires v. Urbahn, 124 Cal. 110 707 

Spotts y. Hanley, 85 Cal. 168 167 

Sprague v. Edwards, 48 Cal. 240 102 

Spreckels v. Nevada Bank, 113 Cal. 272 17 

Spring Valley Water Workp v. ^in FraiiC'sco, 22 Cal. 4.14 720 

Standard Quicksilver Co. v. Habishaw, 132 Cal. 12 i 168, 192. 193 

Starr v. Child, 20 Wend. 159 122 

State V. Bobbst, 131 Mo. 338 546 

State ▼. Bridgman, 49 Vt. 202 606 

State V. Chambers, 87 Iowa, 1 C09 

State V. C. and T. R. R. Co., 17 Ohio St. lO.) 53 

Btata y. Council, 53 Minn. 242 319 



xxxii Table op Cases Cited. 

State 7. Donovaiiy 89 Me. 451 318 

State y. Ellifl, 11 Mo. App. 588 609 

State y. Ellis, 74 Mo. 385 609 

State y. Gibeon, 111 Mo. 92 545 

State y. Gordon, 46 N. J. L. 432 546 

State y. Hawkins, 44 Ohio St. 98 322 

State y. Jarvis, 20 Or. 437 608 

State y. Johnson, 30 Fla. 433 322 

State y. Johnson, 115 Mo. 495 546 

State ▼. Jones, 19 Ind. 356 431 

State y. Markins, 95 Ind. 464 606 

State y. Bhoades, 6 Ney. 373 357 

State y. BoUins, 8 N. H. 560 123 

State y. Bound, 82 Mo. 679 546 

State y. Schwdckardt, 109 Mo. 496 666 

State y. Walbridge, 119 Mo. 383 318 

State y. Winnenham, 124 Mo. 423 607 

Steamship Co. y. McGregor, 21 Q. B. Diy. 544 720 

Steinbaek y. Krone, 36 QU. 309 623 

Steinhart y. Superior Court, 137 Cal. 575 51 

Stewart y. HoUingsworth, 129 Cal. 180 294 

Stockton etc. v. Glenn's Falls Ins. Co., 121 Cal. 171 474 

Stockton School Dist. y. Wright, 134 Cal. 67 376 

Stoever y. Whitman, 6 Binn. 420 124 

Stone y. Brooks, 35 Cal. 490 349 

Strong y. Byan, 46 Cal. 41 192 

Stuart y. Lord, 138 Cal. 672 168, 194 

Studer y. Southern Pacific Co., 121 Cal. 400 615 

Stuparich Mfg. Co. y. Superior Court, 123 Cal. 290 627 

Stuttmeister v. Superior Court, 71 Cal. 322 351, 425 

St. Louis etc B. B. Co. y. Teters, 68 111. 144 5.^ 

St. Louis B. B. Co. y. Terre Haute B. B. Co., 145 U. S. 406 61 

Sulzburger y. Sulzburger, 50 Cal. 385 652 

Sutterly y. Camden Common Pleas, 41 N. J. L. 495 212 

Bwett y. Cutts, 50 N. H. 439 146 

Swilt y. Occidental Mining Co., 70 Pac. (Cal.) 470 70 

Taylor y. BeU, 128 CaL 308 190 

Taylor y. Bleakely, 55 Kan. 1 414 

Taylor y. Haddonfleld etc. Turnpike Co., 65 N. J. L. 102 567 

Tebbe y. Smith, 108 CaL 101 273, 414 

Terrill y. Superior Court, 60 Pac. 38 618 

Thayer v. Thayer, 101 Mass. Ill 606 

Thomas y. Gates, 126 Cal. 1 690 

Thomason v. Ashworth, 73 Cal. 73 208, 215, 216, 217 

Thompson y. Androscoggin, 54 N. H. 545 144 

Thompson y. McKay, 41 Cal. 228 262 

Tibbets y. Bower, 121 Cal. 7 69 

Tiernan y. His Creditors, 62 Cal. 286 651 

Tillaux y. Tillaux, 115 Cal. 667 391 

Tilson y. Thompson, 10 Pick. 359 J31 

Toby y. Oregon B. B. Co., 98 Cal. 490 1 78 

Toland y. Earl, 129 Cal. 148 301, 368 

Toomes, Estate of, 54 Gal. 509 594 

Town of Santa Monica y. Guidinger, 137 Cal. 658 2«>6, 307 

Tracy y. Talmage, 14 N. Y. 181 61 

Trimble y. People, 19 Colo. 196 322 

Tulare Co. y. May, 118 Cal. 306 727 

Turner y. Caruthers, 21 CaL 51 8 



Table of Cases Cited. zxxiii 

Underliill v. Santa Barbara, 93 Oal. 306 312 

Union Pae. By. Go. v. Chicago ete. Co., 51 Fed. 326 312 

Union Pav. eto. Co. y, McGovem, 127 Cal. 638 160 

United States y. McCarthy, 18 Fed. 89, 21 Blatchf. 469 124 

United Statee v. Denver, 106 U. S. 536 108 

United States y. New Orleans, 98 U. 8. 381 209 

Valentine y. Stewart, 15 Cal. 387 68 

Vance y. Fore, 24 Cal. 435 450 

Van Matre y. Sankey, 148 Mass. 536 411 

Van Ness y. Pacard, 2 Pet. 144 123 

Van Valen y. Bussell, 13 Barb. 592 517 

Vaughn, Estate of, 92 Cal. 193 369 

Ventura County y. Clay, 112 Cal. 63 397 

Vineland Irr. Dist. v. Azuza Irr. Co., 126 Cal. 486 27, 131, 280 

Vlsalia Gas etc. Co. y. Sims, 104 Cal. 326 706 

Vitoreno y. Corea, 92 Cal. 69 61 

Van Bonn y. Superior Court, 58 Cal. 358 76 

Vrooman y. Li Po Tai, 118 Cal. 302 578 

Wagner y. Bissell, 3 Iowa, 496 124 

Wagner y. Marple, 10 Tex. Civ. App. 505 18 

WaUterly, Bstate of, 81 Cal. 579 658 

Walkerly, Estate of, 108 Cal. 627 648 

WaU y. Mines, 128 Cal. 136 155 

Walsh y. HiU, 88 Cal. 481 262, 453 

Ward y. Dunne, 136 Ckl. 19 681 

Ward V. McNaughton, 43 Cal. 159 734 

Warner y. Thomas etc. Works, 105 Cal. 409 68 

Wax, Estate of, 106 Cal. 343 596 

Welsh y. Bramlet, 98 Cal. 222 727 

Wheatley y. Baugh, 25 Pa. St. 528 145 

Wheaton y. Peters, 8 Pet. 659 123 

Wheeler y. Bolton, 92 Cal. 159 166 

Wheelock v. Godfrey, 100 Cal. 578 598 

Whipley y. McKune, 12 Cal. 361 271 

White y. Superior Court, 110 Cal. 54 617 

White V. Superior Court, 126 Gal. 245 ' 578 

Whiteman y. Fuel Gas Co., 139 Pa. St. 492 709 

Wiard, Estate of, 83 Cal. 619 74 

Wiekersham, Estate of, 138 Cal. 355 370 

Wight y. Dubois, 21 Fed. 695 45 

Wiggins y. Muscupiabe etc. Co., 113 Cal. l.u 124, 181, 182 

William ffiU Co. v. Lawlor, 116 Cal. 359 369 

WUliams, In re, 102 Cal. 81 410 

Williams y. Williams, L. B. 2 Ch. Div. 12 299, 300, 301 

Wills V. Boss, 77 Ind. 1 262 

Wilson y. People, 90 UL 204 322 

Winslow y. Gohransen, 88 Cal. 450 294, 696 

Winters y. Belmont Min. Co., 53 Cal. 428 17 

Wise y. Burton, 73 Cal. 175 294 

Witter y. Grand Bapids Flour Mill Co., 78 Wis. 543 312 

Wolf, Appeal of, 13 AtL 764 411 

Woodward y. Brown, 119 Cal. 283 13 

Wright y. California Cent. By. Co., 78 Cal. 360 733 

Wright y, Evans, 2 Abb. Pr. (N. a) 308 394 

Zenia Beal Estate Co. y. Maey, 147 Ind. 568 70S, 709 

Yarwood y. West Los Angeles Water Co., 132 Cal. 207 27, 280 

Yount V. Howell, 14 Cal. 465 457 



CITATIONS. 



CALIFORNIA. 

CONSTITUTION. 

1879. Art. I, aeo. 14 49 

Art. TV, sec. 24 834, 428 

Art. IX, sec. 5 376 

Art. IX, sec. 6 375, 880 

Art. XI, sec. 5 429, 726, 727, 728 

Art. XI, sec. 6 207, 213, 214, 215 

Art. XI, sec. 8 207, 213 

Art. XI, sec. 10 210 

Art. XII, sec. 16 315 

STATUTES. 

1850, p. 219. Percolating Waters 121 

1867-68, p. 507. State Lands 446 

1871-72, p. 333. Municipal Corporations 662 

1871-72, p. 370. County Roads 662 

1871-72, p. 925. Erection of Public Bniidings 395 

1873-74, p. 418. Public Park 663 

1877-78, p. 289. Public Park 663 

1877-78, p. 290. PubUc Park 663 

1877-78, p. 740. Bank Commissioners 78 

1880, p. 82. Insolvency 76, 77 

1885, p. 109. liien for Wages 94 

1887, p. 90. Bank Commissioners 78 

1889, p. 510. Los Angeles Charter 507 

1889, p. 661. Public OflSce 318, 320 

1889, p. 720. Public Office 318 

1891, p. 97. Public Park 663 

1893, p. 19. Purity of Elections 416 

1893, p. 229. Commissioners of Building and Loan Associations, 75, 78 

1893, p. 268. Public Schools 372 

1893, p. 274. Public Schools 372 

1895, p. 152. Insolvency 100 

1895, p. 172. Commissioners of Building and Loun Associations.. 78 

1895, p. 267. Conunission on License Taxes 397 

1897, p. 81. Public Schools 374 

1897, p. 204. Grand Juries 399 

1897, p. 459. County Government 393 

1897, p. 572. Commission on License Taxes 398 

1897, p. 592. Public Park 663 

(xjtxiv) 



CITATI0N8. 



STATUTES— Continued. 

1897, p. 608. San Joee City Charter 660 

1901, p. 646. Bounty on Coyote Scalps t55 

1901, p. 686. Township OiBeers 274, 428 

1903, p. 478. Newspapera 838 



Seetion. 



CODE OF ClVn 
Page. 

98 

41 

553 

97 

97 

887 

100 

98 

102 



170 

187 

338 

343 

344 

356 

363 

386 

408 655, 657, 658 

416 657 

442 474 

454 601 

457 672 

462 474 

580 364 

581 ..7, 9, 55, 284, 578, 655, 657 

602 742 

649 162 

850 152 

656 167 

657 69, 251, 356 

658 251 

659 41, 68, 153, 621, 740 

661 152 

663 165, 166, 167 

663% 165, 166 

726 385, 656 

731 363 

758 385 

801 385 

832 267 

890 267 

940 367, 358 

941 357 

950 162, 154 

1014 8 

1022 95 

1026 95 

1033 697 



PBOCEDUBE. 
Section. 

1058 , 

1063 

1067 



Page. 

.. 867 
.. 98 
.. 617 



1068 818, 61T 

1109 97, 98 

nil 413, 415, 659 

1115 876 

1117 876 

1122 668 

1123 416, 561, 568 

1161 556 

1174 623 

1183 38 

1187 88 

1206 400, 401, 408 

1253 60 

1254 48 

1303 332 

1322 540 

1323 540 

1324 640 

1350 541, 548 

1365 548 

1366 548 

1379 641 

1468 647 

1504 16 

1537 641, 648 

1583 60 

1597 350, 425 

1598 350, 425 

1602 350, 425 

1634 370 

1636 16 

1664 34, 40, 358 

1666 371 

1666 371 

1678 369, 370, 371 

1715 73 

1720 486 



XXXVl 



CiTATtOKS. 



CODE OF CIVIL PBOCEDUBE— Oontinued. 



Beetion. Page. 

1826 549 

1832 63 

1836 549 

1847 612 

1856 228 

1860 452 

1870 595, 596, 735 

1879 670, 572 

1880 670, 672 

1957 63 



Section. 

1960 .. 

1963 .. 

1971 .. 

2009 .. 

2049 .. 

2050 .. 



Page. 



Section. 

U ... 

827 ... 

822 ... 

824 ... 

331 ... 

486 ... 



CIVIL 

Page. 
.. 116 
.. 406 
.. 227 
.. 16 
.. 227 
.. 289 



629 706, 711, 712 

632 706, 708 

683 435 

686 435 

686 435 

700 370 

711 667 

717 330 

718 667 

1007 501 

1045 370 

1106 371 

1237 649 

1239 462 

1263 500 

1318 299 

1324 300 

1350 434 

1479 338 

1488 316 

1489 316 

1500 712, 713 

1567 62 

1572 62, 390 

1575 62 

1584 706 

1589 706 

1624 Ill 

1625 228, 734 



60 

228 

556 

5.2 

246 

2052 244, 532 

2061 231, 232, 233, 492, 613 

2077 447, 450, 452, 456 

OOOB. 
Section. Page. 

1636 102, 731 

1637 102 

1638 228, 734 

1639 228, 734 

1643 102 

1646 735 

1647 261, 731 

1648 731 

1653 731 

1654 102, 454 

2186 732 

2188 732 

2219 61 

2224 60, 62 

2307 311 

I 2309 311 

2310 311 

2316 705 

2317 705 

2330 705 

2332 705 

2814 677 

2815 676 

2844 677 

2899 , 12 

3287 697 

3333 613 

3406 63 

3433 12 

3442 627 

3493 363 

3510 123 

3521 227 

3541 102 



ClTATIONB. 



xzxvii 



POLITICAL CODE. 



Beetion. Page. 

964 322 

1041 430 

1215 415 

1281 561 

1669 372, 376, 377 

1670 372, 373, 374 

376, 377, 378, 379, 381, 382 

1671 872 

1818 381 

2618 347 

3167 685 



Section. 

3168 ... 

3169 .., 

3170 ... 

3171 ... 

3172 .., 



Page. 
.. 685 
.. 685 
.. 6»n 
.. 685 
.. 682 



3366 206, 207, 213 

3678 726 

4458 333,334 

4459 332, 333, 334 

4468 121 



PENAL CODE. 



Section. Page. 

7 114, 115 

189 231 

197 239 

207 544, 545 

211 490, 491, 492 

245 582 

267 548 

285 606, 607, 6u9 

784 546, 547 

925 399 

928 dC9 



Section. Page. 

929 398, 399 

950 582, 584 

952 582, 584 



1111 
1192 
1217 
1224 
1226 
1227 
1258 



.551, 



232 
552 
554 
554 
554 
554 
534 



UNITED STATES. 

Bevised Statutes, sec. 2326. Mining Claims 419 

Revised Statutes, sec 2329. Mining Claims 293 

Bevised Statutes, sec. 2387. Mining Claims 293 

Compiled Statutes, 1901, p. 1430. Mining Claims 419 

Compiled Statutes, 1901, p. 1549. Mining Claims 293 



MICHIGAN. 
Howell's Annotated Statutes, see. 7545. Corporations. 



671 



iS'EW YORK. 
Annotated Code dvil Pxocedure, see^ 829. Corporations. 



671 



REPORTS OF CASES 

DBTESMINED IN 

THE SUPREME COURT 

OF THX 

STATE OF CALIFORNIA. 



[Sae. No. 1006. Department One.— Oetober 17, 1903.] 

W. F. TURPEN, Respondent, v. TURLOCK IRRIGATION 
DISTRICT, Appellant, and J. A. WATMIRE, Defend- 
ants. 

Ikjubt to Land — Seepagx from Canal of Irrigation District — Oon- 
struonon bt contractor — stipulation for joint judoicent — 
Findings. — In an action for injniy to plaintiff's land by seepage 
of water from the canal of an irrigation district, in the course of 
construction by a contractor sued jointly with the district, and for 
an injunction, where the defendants stipulated that if plaintiff 
recovered judgment at all it should be joint against both defendants, 
who reserved the right to adjust the responsibility between them- 
selves thereafter, it cannot be objected upon appeal of the irriga- 
tion district that it was not responsible for the injury, because the 
contractor was an independent contractor, nor can the district 
complain of unneeessary findings made in accordance with the 
stipulation. 

Id. — CONDSICNATION OF LAND — DaICAOX SUKD FOR NOT InCLTTDKD — PUEAD- 

ING — ^Proof. — The damage allowed in a suit for the condemnation 
of land of plaintiff by the irrigation district, taken for the canal, 
could not have indudO'l or anticipated damage to land not taken 
from seepage due to faulty construction of the canal; and proof 
of the condemnation proceedings, if not pleaded, was inadmissible 
to show that such damage was included tiberein. 

Id.— Findings — Fauivtt Construction of Canal— Bepairs Pending 
Suit — ^Dissolution of Injunction — ^Damagss — Appeal. — ^Where the 
findings upon sufficient evidence show that the canal was not con- 
structed in the manner suitable for such work, and that its bed 
where the seepage occurred was of very light and porous sand, 
through which the water easily percolates, and that such seepage 
could not be prevented without an artificial bottom, and that since 
the suit was commenced the defendants had remedied the seepage 
by repairs, whereupon the temporary injunetiou was dissolved, and 
QZLL 010.-4 



2 TURPBN V. TURLOCK IRRIGATION DiST. [141 Cal. 

the court rendered judgment for damages found by the jury by 
reason of the seepage, and for costs, an order denying a new trial 
will not be disturbed upon appeaL 

APPEAL from an order of the Superior Court of Stanis- 
laus County. William 0. Minor, Judge. 

The facts are stated in the opinion of the oourt 
P. J. Hazen, for Appellant. 
C. W. Eastin, for Bespondent 

VAN DYKE, J.— The action was brought to recover dam- 
ages for injuries to plaintiff's land caused by the seepage of 
water from the canal of the defendant corporation, and for 
an injunction. Special issues in reference to the damages 
caused by the seepage were submitted to a jury, and a verdict 
rendered in favor of plaintiff for the sum of $475. Findings 
were also filed and judgment rendered in favor of plaintiff. 
The defendants moved for a new trial, which was denied, and 
the appeal is taken by said defendant corporation from the 
order denying a new trial. 

It is contended by the attorney for appellant that the al- 
leged damage occurred while the canal was in course of con- 
struction by the defendant Waymire, and that appellant was 
in no way responsible therefor, said Waymire being an inde- 
pendent contractor, and appellant complains of the finding 
to the contrary. But on the trial both counsel for defendants 
corporation and Waymire stipulated "that as between said 
defendants it was agreed that if plaintiff recover a judgment, 
it should be a joint judgment, reserving the right to adjust 
the responsibility as between tibemselves thereafter. Defend- 
ant district accepts responsibility for the management of the 
canal, so far as the plaintiff is concerned, and, so far as plain- 
tiff is concerned, the district, defendant, does not set up that 
the defendant Waymire was an independent contractor, and 
the two agree that if the jury render a verdict in favor of 
plaintiff at all, it may run against both defendants, and as to 
whether Waymire was an independent contractor or an em- 
ployee, they would determine that thereafter." It was not 
necessary for the court to find upon that subject, but the de- 



Oct 1903. TuBFEN V. TiTELOGK Ibrigation Dist. 3 

fendant has no ground to complain, inasmach as the finding 
is according to the stipulation and is therefore harmless. 

It is further alleged by appellant that the canal was fully 
constructed across plaintiff's land at the time of a certain 
eondemnation suit by appellant against the plaintiff, and the 
appellant upon this trial offered to prove the proceedings iji 
said suit, and that plaintiff was fully compensated in that 
action for the damages claimed in this action, and it is claimed 
that the court erred in refusing to allow such proof and the 
findings by the court to the contrary. But the proceedings 
referred to were not pleaded by the appellant, and, further, 
damages caused by the seepage from faulty construction of 
the canal could not have well been anticipated, and were not 
included in the condemnation proceeding. 

It is further maintained on the part of appellant that the 
eanal was constructed in the manner usual and reasonable 
for such work under like circumstances, but the court finds to 
the contrary, and finds that the bed of the canal at the point 
where the seepage occurred ''is composed of very light and 
porous sand, through which the water percolates very readily 
and easily, and the same is wholly unfit for the bed of a canal, 
and will not hold water, and the seepage of the water from 
the bed of the canal through said subsoil could not be pre- 
vented, without putting in an artificial bottom in said canal, 
as the same existed at the time of the commencement of this 
action." That said corporation realized that finding was 
supported by the evidence is quite evident from another find- 
ing by the court, to wit : ''But that since the time of the com- 
mencement of this action, and the issuance and service of the 
injunction herein upon the defendants, certain repairs have 
been made in and upon the bed of said canal on the premises 
of plaintiff as aforesaid, from and by which the seepage al- 
leged in plaintiff's complaint has been entirely or largely 
stopped." After the said repairs were made in the bottom 
of the said canal, the temporary injunction issued at the com- 
mencement of the action was dissolved, and judgment in favor 
of plaintiff was entered for the amount of damages caused by 
the seepage, as found by the jury, and for costs only. 

The order appealed from is afiirmed. 

Angellottiy J^ and Shaw, J., concurred. 



Paoifio Paving Co. v. Yizeuoh. [141 CaL 



[8ae. No. 912. Department One.— October 17, 1908.] 

PACIFIC PAVING COMPANY, AppeUani, v. NICHOLAS 
VIZELICH et al., Defendants; GEORGE FINKBOH- 
NER, Respondent 

Dismissal or Action— Dblat in Bbtttbn or Summons— MiNins Ordbr 
—Final Judgment — Appeal. — An order entered in the minutes 
of the eourt for the dismiBsa] of an action for failure to return 
the summoiiB within three years, under subdivision 7 of section 581 
of the Code of ClYil Procedure, is a final judgment, for the purpose 
of appeal therefrom. 

lD.~£iRBONEous DISMISSAL— Afpsabanob OF Pabtt 8ximD>— Pbbbumkd 
AuTHOBiTT or Ai*roBNZTS — Delay or Attaos— Estopfxl. — The 
diflmiBBal of the aetion for failure to return the summons was erro- 
neous, and the moving party was estopped from urging it, as 
against the plaintiff, where such party was promptly served with 
summons, and attorneys promptly appear for him who are pre- 
sumed to have had authority to represent him, and whose authority 
the plaintiff could not question, and who stipulated in his behalf 
with the plaintiff that the ease should abide the result of another 
similar aetion, and whose authority to act for the moving party 
was not assailed by him until after the lapse of more than five 
years, during which time the plaintiff had debiyed to return the 
summons on the strength of the appearance for him, upon which 
the plaintiff was entitled to rely. 

Id. — SuppiciENCT or Complaint — ^Motion to Dismiss — ^Appeal. — ^Tha 
sufficiency of the complaint to state a cause of aetion is not avail- 
able on a motion to dismiss the complaint, and cannot be considered 
upon appeal from an order granting the motion. 

Id. — Order RErusiNo to Set Aside Stipulation — ^Appeal — ^Renewal 
op Motion. — ^An order refusing to set aside the stipulation is not 
appealable, and is reviewable only on appeal from the final jurlg- 
ment by the moving party, and the motion to set it aside may be 
renewed before such appeal is taken, after reversal of a judgment 
dismissing the action as to him. 

APPEALS from two judgments of the Superior Court of 
San Joaquin County dismissing an action. Edward L Jones, 
Judge. 

The facts are stated in the opinion of the court 

James A. Louttit, and Gunnison, Booth & Bartnett» for 
Appellant. 



Oct 1903.] Pacific Paving Co. v. Vizbuoh. 6 

The acts of the attorneys who appeared for Pinkbohner 
bound him until they were superseded, regardless of the ques- 
tion of actual authority, if no collusion appears. {Blodgeti 
V. Canklin, 9 How. Pr. 442; Lewis v. Sumner, 13 Met. 269; 
Bayley v. Buckland, 1 Welsby, H. & Q. 1 ; Seale v. MoLaugh- 
Un, 28 Cal. 668.) 

Elliott & Elliott, and J. B. Webster, for Respondent, Pink- 
bohner. 

The judgment of dismissal was properly grranted, there 
having been no authorized appearance for the defendant 
Pinkbohner. {Modoc Land etc. Co. v. Superior Court, 128 
Cal. 255.) The statute is mandatory, and the judge had no 
discretion or jurisdiction to refuse tiie dismissal. {Vrooman 
V. Li Po Tai, 113 Cal. 302; White v. Superior Court, 126 Cal, 
245.) 

ANGELLOTTI, J.— The plaintiflE instituted this action on 
December 2, 1893, to foreclose the lien of a street assessment 
upon a lot of land of which defendant Vizelich was alleged 
to be the owner, and in which defendant Pinkbohner was al- 
leged to claim some interest. During the pendency of the 
action, Pinkbohner became the owner of the property by deed 
from Vizelich. Summons was issued, and was served on 
Pinkbohner on January 13, 1894, but affidavit of such service 
was not made until December 19, 1899, and the summons was 
not returned and filed in the office of the clerk of the court 
until Pebruary 19, 1900. On January 22, 1894, what purported 
to be the demurrer of both defendants was filed, the same 
being signed by James H. Budd and J. E. Budd, as attorneys 
tor defendant, and Gould & Baldwin, as counsel. On Jan- 
uary 29, 1894, this demurrer was overruled and defendants 
were allowed twenty days to answer. On Pebruary 16, 1894, 
twenty days further time was allowed to answer by stipula- 
tion of counsel, and on April 28, 1897, the following stipula- 
tion was filed, viz.: ''It is stipulated and agreed that the de- 
fendants in the above-entitled actions need not file an answer 
in said actions, but that the said actions shall abide the result 
of the action of the Pacific Paving Company against J. L. 
Mowbray, 5163, and whatever judgment may be finally en- 
tered in said action shall also be entered in each of the above- 



6 Pacific Paving Co. v. Vizbuch, [141 Cal. 

entitled cases, whether the same be in favor of the plaintiff 
or defendant; and if in favor of the plaintiff, then in each 
case according to the prayer of the complaint. 

"Dated April 23, 1897. 

**Jas. A. Louttit, attorney for plaintiff. F. H. Gould, 
James H. and J. E. Budd, attorneys for defendants." 

In December, 1899, defendant Finkbohner, through his at- 
torneys, J. B. Webster and L. W. Elliott, gave notice of a 
motion to vacate, set aside, and declare null and void the said 
stipulation, on the grounds that he had never employed either 
of the attorneys signing the same, or any other attorney or 
person, to make said stipulation, or do anything in this action 
on his behalf; and also to dismiss the action on the ground 
that the summons was not returned or filed within three years 
after the commencement of the action. He also, not waiving 
his motion, filed a demurrer to the complaint The moliua 
was in due time heard, and on March 12, 1900, the court made 
the following order, as appears from the minute entry si*t 
forth in the bill of exceptions, viz.: — 

''It is by the court ordered as a disposition at one time of 
the three motions, 1, that defendant Finkbohner 's motion to 
set aside the stipulation herein be, and the same hereby is, 
denied; 2, that the plaintiff's motion to enter the default of 
defendant Finkbohner for not answering be, and the same 
hereby is, denied; 3, that the defendant Finkbohner 's motion 
to dismiss said action as to himself be, and the same is hereby 
granted." On September 12, 1900, the court rendered its 
decision in the case, finding that on April 28, 1897, **the par- 
ties . . . signed and filed" the stipulation hereinbefore set 
forth, and that judgment was finally entered in said action of 
Pacific Paving Company v. J. L. Mowbray, No. 5163, in favor 
of plaintiffs, and as a conclusion of law therefrom found 
that plaintiff was entitled to judgment as prayed for in its 
complaint. On the same day judgment, signed by the judge, 
was entered, adjudging that the action be dismissed as to de- 
fendant Finkbohner, and directing the sale of the land to 
satisfy the assessment, attorney fee, and costs. 

The plaintiff appeals both from the order of judgment of 
March 12, 1900, and the judgment of September 12, 1900. 
It was held in Marks v. Keenan, 140 Cal. 33, that an order 



Oct, 1903.] Pacific Paving Co. v. Vizelioh. 7 

dismissing an action under subdivision 7 of section 581 of 
the Code of Civil Procedure is, when entered on the minutes 
of the court, a final judgment within the meaning of the pro- 
visions of the code touching appeals, and should be treated 
as such for the purpose of appeal. An appeal having in this 
case been taken from the order or judgment of March 12, 
1900, within the time allowed by the statute for appeals from 
final judgments, the action of the court thereon may be here 
reviewed. If that order was erroneous, the final judgment of 
September 12, 1900, from which an appeal was also taken, 
is also erroneous, for it was clearly in conflict with the find- 
ings and decision of the court, which were in favor of plain- 
tiff as against both defendants, and directed the entry of 
judgment against both. The final judgment of September 
12th was undoubtedly based upon the order of dismissal of 
March 12, 1900. 

We are unable to perceive any ground upon which sucl 
order of dismissal as to Finkbohner can be sustained. Tht 
motion to dismiss was undoubtedly based upon the order oi 
the court made March 12, 1900, granting Finkbohner 's nio 
tion to dismiss said action as to him. That motion was brtseo 
solely on the ground that the summons in said action had 
not been returned or filed within three years after the 
commencement of the action. The statute providing lor a 
dismissal in such a case (Code Civ. Proc, sec. 581, subd. 
7), further provides that ^'all such actions may be prose- 
cuted, if appearance has been made by the defendant or 
defendants, within said three years in the same manner as 
if summons had been issued and served." Admittedly, if 
Finkbohner appeared within three years from the com- 
mencement of the action, the action could not be legally dis- 
missed for failure on the part of plaintiff to return and file 
the summons within the three years. It is urged by re- 
spondent that inasmuch as the dismissal could have been 
made on no other ground, the dismissal by the court was a 
finding by it that no appearance had been made by de- 
fendant. There was evidence on which the court was justi- 
fied in finding that, although the attorneys who appeared for 
Finkbohner by filing a demurrer for him, obtaining time and 
stipulating on his behalf, had good reason to believe they 
were authorized to appear for him by reason of their em* 



8 Paodio Paying Go. v. Yizelxoh. [141 CaL 

ployment by the committee of property-owners affected by 
the assessment for street work here involved, and acted is 
good faith in so appearing, they were never in fact authorized 
by Finkbohner to appear for him. Conceding that they had 
no authority to appear for him, the evidence was without con- 
flict to the effect that, although personally served with sum- 
mons on January 13, 1894, he never personally or by any 
other attorney appeared in the action until December 2, 
1899, or '^80 far as the record shows, took any step to defend 
the same." It further showed without conflict that there 
was placed on file on his behalf, within ten days after service 
of summons on him, what purported on its face to be an ap- 
pearance by him, — ^viz., a demurrer to the complaint signe<l 
by attorneys of the court (Code Civ. Proc, sec 1014), whose 
authority to act for him the plaintiff had no ground to ques- 
tion. It further showed, without conflict, the stipulation al- 
ready referred to, and also that, although said defendant had 
lull notice of the action by reason of the personal service of 
sunmions on him, he never until the year 1899 caused any 
intimation to be given to any one that the attorneys who 
had appeared for him had not been in fact authorized by 
him so to do. Upon these facts the court was not warranted 
in finding, upon his motion, that there was no appearance 
made by said defendant, even although the attorneys had 
not been authorized to appear for him. There was such an 
appearance as plaintiff was entitled to rely on, and conse- 
quently refrain from returning and filing the summons that 
had been served. 

In the absence of statutory requirement that the author- 
ity of an attorney shall be evidenced by writing, it is always 
presumed that an attorney appearing and acting for a party 
to a cause has authority to so do. (See 3 Am. & Eng. Ency. 
of Law, 2d ed., p. 375; Turner v. Caruthers, 17 CaL 431; 
Hayes v. Shattuck, 21 Cal. 51 ; Bickeison v. Compior, 23 Cal. 
649; San Luis Obispo v. Hendricks, 71 Cal. 246; Hunter v. 
Bryant, 98 Cal. 247, 250; Avery v. Maude, 112 Cal. 565; San 
Francisco Sav. Union v. Long, 123 Cal. 113.) It was said 
by this court in San Francisco Sav. Union v. Long, 123 Cal. 
113, that, **It is always presumed until the contrary appears, 
that an attorney is duly authorized to appear for and repre* 
sent any parties for whom he assumes to act This oonft* 



Oct. 1903. ) Pacific PAViNa Co. v. Vizelich. 9 

deuce, which underlies all judicial action in this country, 
rests not only upon a belief in the honor and integrity of 
the attorney, but upon the fact that he is a sworn officer of 
the court." It was said by the supreme court of Massa- 
chusetts, in Lewis v. Sumner, 13 Met. 269, that when an ap- 
pearance is entered for a party by a regular attorney, all 
parties have a right, prima facie, to regard him as the ac- 
credited representative of such party. This must, in the 
nature of things, be especially true when a defendant has 
been personally served with summons, and thus brought 
within the jurisdiction of the court, and no other appear- 
ance is made by or for him. By his omission to otherwise 
appear, having actual knowledge of the proceeding against 
bim, he causes the plaintiff to more strongly rely upon the 
presumption as to the authority of the attorney who, in the 
manner provided by law, files an appearance for him, and 
therefore to refrain from filing the proof of service of sum- 
mons, which is entirely unnecessary in cases where the de- 
fendant appears. We are satisfied that he cannot, under 
such circumstances, be heard to say, for the purpose of ob- 
taining a dismissal of the action under subdivision 7 of sec- 
tion 581 of the Code of Civil Procedure, that he has not ap- 
peared in the action. That statute was designed for the 
benefit of defendants in actions, to relieve them from the as- 
sertion of stale demands and to insure proper diligence in 
the prosecution of asserted claims. That a defendant may 
expressly waive the benefit of its provisions was held by this 
court in Cooper v. Gordon, 125 Cal. 296, in which case sum- 
mons was never served, and there had not been at the time of 
the motion for dismissal any appearance made by the de- 
fendant. In that case the parties had personally stipulated 
in writing that the plaintiff might take a judgment at any 
time for a stipulated amount, but this stipulation was not 
filed, and plaintiff, relying on the stipulation, failed to re- 
turn the summons. It was held that this stipulation was 
intended in lieu of an answer, and was also a consent to the 
entry of the appearance of the defendant and the entry of 
judgment after the lapse of the three years limited by law, 
and although summons had not been returned and no ap- 
pearance had been made within the three years, an order 
vacating the judgment of dismissal was afi&rmed. In the 



10 Pacific Paving Co. v. Vizbuoh. [141 Cal. 

case at bar a paper that plaintiff was entitled, and in fact 
bound, to treat as an appearance of Finkbohner had been 
filed within ten days after service of summons, — viz., a de- 
murrer on his behalf signed by attorneys of the court. By 
reason of this purported appearance, which he, having full 
notice of the action, had failed in any way to repudiate, and 
relying thereon, plaintiff failed to make return of summons 
within the three years. Under such circumstances, a de- 
fendant will not be allowed to repudiate the appearance 
after the expiration of the three years, for the purpose of 
obtaining a dismissal on the ground that the summons was 
not returned within the three years, the statute expressly 
providing that the action may be prosecuted, if appearance 
has been made within three years, in the same manner as 
if summons had been issued and served. 

It was further urged on oral argument and by supple- 
mental brief, that the judgment of dismissal as to Fink- 
bohner should be afi&rmed, for the reason that the complaint 
does not state facts sufficient to constitute a cause of action. 
It is true that under the decision of this court in Buckman 
V. Hatch, 139 Cal. 53, the complaint was fatally defective, 
in that it apparently showed that the resolution of intention 
for the doing of the street work for which the assessment was 
made did not specify the materials to be used in the construc- 
tion of certain proposed culverts. 

Such an objection to a complaint is not, however, avail- 
able on a motion to dismiss an action, and cannot be consid- 
ered on this appeal as tending to sustain the ruling of the 
court below. It is impossible for this court to say that the 
resolution of intention is correctly alleged, and it may be 
that the complaint can be amended so as to state a cause of 
action, and that the plaintiff should be allowed to amend. 

Upon the going down of the cause, said defendant will of 
course be entitled to appear by his regularly authorized at- 
torneys. 

The judgment of dismissal and the order of dismissal of 
March 12, 1900, as to the defendant Finkbohner are reversed 
and the cause remanded. 

Shaw, J., and Van Dyke, J., concurred. 



Oct. 1903.] Mbeoed Security Savings Bank v, Simon. 11 

A petition for a hearing in Bank having been made, the 
following opinion was rendered thereon on the 16th of No- 
vember, 1903: 

AN6ELL0TTI, J.— The petition for a rehearing is denied. 
In denying the rehearing it is proper to further say that 
inasmuch as the order of the trial court refusing to set aside 
the stipulation was not appealable, and is reviewable only 
upon appeal from a final judgment against Finkbohner, we 
know of no reason why said defendant may not renew his 
motion to set aside the stipulation. 

Shaw, J., Van Dyke, J., Beatty, C. J., and Lorigan, J^ 
concurred 



[Sac. No. 1147. Depftrtment One. — Oetober 17, 1903.] 

MERCED SECURITY SAVINGS BANK, Respondent, v, 
JOHN H. SIMON and 0. M. OLIVER, Executors, etc., 
of William W. Gray, Deceased, et al., Defendants; 
CROCKBR^HUFPMAN LAND AND WATER COM- 
PANT, Appellant. 

FOSSGLOSURE Or MOSTGAOK— SUBSXQUENT GbANT OV BlGHT OF WAT — 

Beucases by Mobtoagsjb attes Grant — Modb or Bali— Bights of 
Grantee. — ^Where subsequent to the ezeeution of a mortgage the 
mortgagor granted a right of way over the mortgaged lands to a 
third party, the mortgagee could not, subsequent to that deed, pre- 
JQdiee the owner of the right of way by releasee of other portions 
of the mortgaged premises; and the grantee has the right upon 
foreclosure of the mortgage to have it eocplieitly ordered that that 
portion of the mortgaged premises not covered by the right of way 
should be first sold, and that the right of way should only be sold 
in ease of deAdeney. 

APPEAL from a judgment of the Superior Court of Mer- 
ced County. E. N. Rector, Judge. 

The facts are stated in the opinion of the court. 

James F. Peck, for Appellant, 

T. C. Law, for Respondent 



12 Mbbgbd Sbcubitt Sayxngs Bank t;. Simon. [141 Cal. 

VAN DYKE, J. — Tliis action is against the executors of 
William W. Gray and others to foreclose a mortgage executed 
by the said William W. Gray to the plaintiff on certain 
premises in Merced County. It is alleged in the complaint 
that certain portions of the mortgaged premises — four tracts 
in number — ^have been released from the operation of the 
mortgage, and the prayer of the complaint is for a sale 
of the remaining portion of the land. Defendant Crocker- 
Huffman Land and Water Company filed an answer, in 
which it is alleged that subsequent to the execution of the 
mortgage in suit, said William W. Gray, the mortgagor, exe- 
cuted and delivered to said defendant Crocker-Huffman 
liand and Water Company a deed conveying a right of way 
over and across certain strips of land, being portions of the 
land covered by the mortgage, for the use and benefit of a 
system of canals and ditches maintained and operated by 
said defendant in Merced County, which deed was properly 
acknowledged and recorded, and it is alleged in said answer 
that at all times thereafter said plaintiff had notice and 
knowledge of the execution and delivery of the same; that 
subsequent to the execution of said deed of said right of 
way, and without the consent of the said corporation defend- 
ant, the grantee therein, the plaintiff made, executed, and 
delivered the releases mentioned and specified in the com- 
plaint; that about nine-tenths of the land described in the 
right of way in said deed to the said corporation defend- 
ant is not included in the lands covered by said releases. The 
court sustained a demurrer to said answer interposed by the 
plaintiff, and entered a decree of foreclosure according to 
the prayer of the complaint. The appeal by the corporation 
defendant is upon the judgment-roll. 

The main contention on the part of the appellant is, that, 
as a grantee of the mortgagor of the right of way in question, 
said defendant had the right to have the portion of the mort- 
gaged premises not covered by said right of way first sold, 
and that the mortgagee, the plaintiff herein, could not, sub- 
sequent to the date of the defendant's deed, release portions 
of said mortgaged premises so as to prejudice the right of 
the said defendant, the appellant herein. In this contention 
the appellant is clearly right, and is supported by authori- 
ties. (Civ. Code, sees. 2899, 3433; Kent v. WiUiams, 114 



Oct. 1903.] Hall v. Oayot. 13 

Cal. 537; Woodward v. Brown, 119 CaL 283.i) It ia true, as 
claimed by the respondent, that under the decree as rendered 
the commissioner appointed by the court to make the sale 
might proceed to sell in portions instead of as a whole, re- 
serving the portion claimed by appellant, and only sell that it 
the other portions did not sell for sufficient to satisfy the 
claim. But this right might be disputed, or the sale might 
under the decree be for the whole of the premises in gross. 
At any rate, the appellant was entitled to have it clearly 
expressed in the decree so it would be put beyond dispute or 
question. The answer stated facts sufficient to warrant the 
court in framing its decree so as to protect the appellant in 
case the remainder of the property covered by the mortgage 
should be sufficient to discharge the debt secured thereby to 
the plaintiff. 

For the reasons stated the decree of foreclosure and sale 
should be so modified that the mortgaged premises, other thaa 
the right of way in question, or so much thereof as may ba 
necessary to satisfy plaintiff's judgment, should be first sold, 
and that said right of way should be sold only in case the 
other portions of the mortgaged premises do not sell for a 
sum sufficient to satisfy plaintiff's judgment with interest and 
costs ; and it is so ordered. 

Shaw, J., and Angellotti, J., concurred. 

Hearing in Bank denied. 



[Sae. No. 1002. Department One.— October 17, 1903.] 

DELIA HALL, Appellant, v. FRANCIS CAYOT, Executor, 
etc.. of Phillip Doray, Deceased, Respondent. 

Estates of Dxceased Pessons — Cuaiu Tseated as Bejxctxd— Allow« 
ANCB Pending Suit — Judokxnt roa Costs. — Where a claim upon 
a note of a deceased person was treated as rejected under the 
statute, and pending action thereon was approved and filed as an 
allowed claim, a Judgment for costs is the full extent of relief 
to which plaintiff was thereafter entitled. A judgment upon the 
claim could have no greater effect than that of an approved claim, 

183 Am. Bi. Bep. 108. 



14 Hatji v. Cayot. [141 Cal. 

Id.— Ebjectkd Notb — Skctjritt — ^Unindobsbd Stock — Cebtiiicati of 
Sxo&ETABT — Equitable Lisn — Obdeb or Bau against Ezbodtob. 
— Where the note of a decedent was intended to be seeured by his 
deliveiy to the payee of an nnindorsed certificate of stock standing 
upon the books of a corporation in his name, which intention was 
evidenced by a certificate of the secretary of the corporation in- 
dorsed thereon, stating the object of the delivery, such delivery 
created an equitable lien upon the stock, which was good and en- 
forceable as between the parties. In an action upon the rejected 
note and security against the decedent's executor, the plaintiff is 
entitled to enforce both the note and the security, and to have an 
order of sale of the stock as against the executor, who occupies the 
same position which the decadent would have occupied had he lived. 

APPEAL from a jndgment of the Superior Court of Plu- 
mas County. C. E. McLaughlin, Judge. 

The facts are stated in the opinion of the court 

Gtoodwin & Webb, for Appellant. 

O. G. Clough, for Bespondent. 

ANQELLOTTI, J.— This is an action upon two claims 
against Phillip Doray, deceased, which were duly presented 
for allowance to the executor of his will, and which, because 
of the neglect and failure of such executor to indorse his al- 
lowance or rejection thereon within ten days after 6uch pres- 
entation, plaintiflE elected to consider rejected 

One of the claims was based upon a promissory note of the 
deceased. The action was commenced on the twenty-fourth 
day of May, 1900, and on the next day the said claim, having 
been allowed by the executor, was delivered by him to the 
judge, allowed by him, and on May 26, 1900, filed with the 
clerk of the court. The allowance of the claim is alleged by 
the answer, and the allegation is found to be true by the court. 
The other claim was also based upon a promissory note, the 
same being for $3,200, which was given by deceased to plain- 
tiflf for a former note for $2,669 and interest, given by 
deceased to the husband of plaintiff, who afterwards died, 
and from whom plaintiff had acquired the note as heir 
to his estate. At the time of giving such original note de- 
eeased delivered to the payee named therein a certificate for 
nineteen hundred shares of the capital stock of the Pacific 



Oct. 1903.] Hall v. Cayot. 15 

Gold Mining Company, as collateral security for the pay- 
ment of the note, said certifioate then bearing the following 
indorsement, viz.: — 

"$2669.00, 

"The within nineteen hundred (1900) shares of stock are 
hypothecated to secure the payment of a certain promissory 
note, made and executed the 13th day of September, A. D. 
1886, by Phillip Doray, to Robert Hall, for the sum of two 
thousand six hundred and sixty-nine dollars, due July 1, 
1888. John K. Wall, Secretary," 

said Wall then being the secretary of the corporation. Plain- 
tiff's husband retained said note and the said certificate of 
stock to the time of his death, when plaintiff succeded, as 
his heir, to said note and to the possession of said certificate 
of stock, and when deceased executed the $3,200 note, he left 
with plaintiff the certificate of stock, to be held by her as col- 
lateral security for the payment of said note. 

There was never any writing or memorandum between the 
deceased, and either plaintiff or her husband as to said collat- 
eral security, or showing the purpose for which the certificate 
was delivered by deceased, except the indorsement already 
recited, signed by the secretary of the corporation, and neither 
the transfer nor anything tending to show that the certificate 
was held by plaintiff or her husband as collateral security or 
otherwise was ever entered upon the books of the corporation. 

The foregoing facts are shown by the findings and such 
allegations of the complaint as are admitted by the answer. 
The trial court decided as to the first claim that, as the claim 
bad been allowed after the commencement of the action, and 
the plaintiff thereby secured in all her rights, she was not en- 
titled to judgment therein. As to the second claim, it de- 
cided that plaintiff waa not entitled to a lien upon the cer- 
tificate of stock, or the shares represented thereby, or a de- 
cree of sale therefor, but that she was entitled to judgment 
thereon for $4,441.15, and interest from May 12, 1900, and 
her costs of suit, payable in due course of administration. 

Judgment was entered accordingly, and plaintiff appeals 
upon the judgment-roll from that portion of the judgment 
denying her relief on the first claim, and from that portion 
thereof adjudging that she has no lien on the certificate of 



18 Hall v. Catot. [141 Cal. 

stock or the shares represented thereby, and adjudging that 
she is not entitled to judgment directing the sale thereof 
to satisfy her demand. No brief has been filed by counsel for 
respondent, and we are therefore without the benefit of his 
views on the questions presented by this appeaL 

1. As to the first claim, the judgment was not erroneous. 
The sole object of an action upon a rejected claim for money 
is to place it among the allowed claims against the estate. A 
judgment rendered against an executor or administrator upon 
any claim for money against the deceased only establishes 
the claim in the same manner as if it had been allowed by the 
executor or administrator and the judge (Code Civ. Proc, 
sec. 1504), and such a judgment is no more effectual as an 
estoppel than an allowance of the claim would be, for it can 
be contested by the heirs on the settlement of an account in 
the same manner as a claim allowed by the executor or admin- 
istrator and judge can be contested. (Code Civ. Proc, sec. 
1636; Estate of More, 121 Cal. 635.) It having been found, 
in accordance with the allegations of the answer, that the 
claim had been regularly allowed, approved, and filed after 
the commencement of the action, the plaintiff was not entitled 
to an additional allowance thereof, and consequently was not 
entitled to judgment thereon, except possibly for her costs, 
which were awarded her. 

2. The action of the trial court in adjudging that plaintiff 
has no lien upon the certificate of stock, or upon the shares 
of stock represented thereby, to secure the note on which the 
second claim is founded, and in refusing her an order for the 
sale thereof, was undoubtedly based upon the fact that there 
waa no written transfer of the stock on the part of deceased, 
and no transfer in the manner provided by section 324 of the 
Civil Code. That section provides that shares of stock are 
personal property, **and may be transferred by indorsement 
by the signature of the proprietor, his agent, attorney, or 
legal representative, and the delivery of the certificate; but 
such transfer is not valid, except as to the parties thereto, 
until the same is so entered upon the books of the corporation 
83 to show the names of the parties by whom and to whom 
transferred," etc. In this case there was no delivery of the 
possession of the stock other than such as was accomplished 



Oct. 1903.] Hall v. Catot. 17 

by the mere delivery of the certificate, with the indorsement 
of the secretary of the corporation as to the purpose thereof. 
It is well settled in this state by decisions construing this 
statutory provision that the entry upon the books of the cor- 
poration is not essential to the validity of the transfer, except 
as to purchasers and transferees "in good faith, for value 
and without notice." {SprecheLs v. Nevada Bayik, 113 Cal. 
272 ;i Farmers' Bank v. Y/Uson, 58 Cal. 600; Winters v. BeU 
mont Min. Co,, 53 Cal. 428; People v. Elmore, 35 Cal. 653.) 
The rights of any such third parties not being here involved, 
the provision of the statute as to entry on the books of the 
corporation is not applicable, and the finding thereon is imma- 
terial. 

There remains to consider the effect of the absence of in- 
dorsement by signature, or other writing signed by the owner 
of the stock. In considering this question it must be borne 
in mind that the defendant executor occupies the same posi- 
tion that the deceased would have occupied had he lived, and 
that there is no question in the case as to the rights of any 
third party. The intent of the deceased to hypothecate the 
shares of stock as collateral security is very clearly shown 
by his delivery of the certificate therefor, with the certificate 
of the secretary of the corporation, indorsed thereon, which 
certificate fully stated the object of the delivery, and which 
he, by his delivery, practically adopted as his own statement. 

It appears to be well settled that incorporeal property, 
such as shares of stock in a corporation, cannot, technically 
speaking, be pledged without a written transfer of title or its 
equivalent. The theory underlying this rule is, that as such 
property, — viz., the shares of stock, as distinguished from 
the certificate therefor, which is but the muniment or evidence 
of title of the holder to a portion of the property of the cor- 
poration — is incapable of manual delivery, and as delivery of 
possession is essential to the validity of a pledge, a delivery 
of the certificate without a transfer in writing which will 
enable the holder to make a transfer of the stock to his own 
name on the books of the corporation is not a complete deliv- 
ery, for it docs not place the stock in the full control of the 
pledgee. While the authorities generally recognize the neces- 



1S4 Am. St. Bep. 3i8. 
G3CLL0al.-4 



18 Hall v. Catot. [141 CaL 

sity of an indorsement or other writing to effectuate a tranA< 
f er of the title to the share, and to create a valid pledge, it 
will be found upon examination that the mere delivery, by 
way of pledge, of the certificate without indorsement is ac- 
knowledged by the various text-writers to have been held to 
vest in the pledgee an equitable title to the shares, which may 
be enforced as between the parties. (Cook on Stocks and 
Stockholders, sec. 465; Jones on Pledges and Collateral Se- 
curities, sec. 152; 18 Am. & Eng. Ency. of Law, 1st ed., 611.) 
The various cases cited to support the doctrine enunciated 
as to the necessity of a writing to create a valid pledge will 
be found to be cases where the rights of third parties were 
involved. (See Gumming v. Prescott, 2 Younge & C. 488; 
Nisbit V. Macon Bank etc. Co., 12 Fed. 686; Wagner v. Mar- 
pie, 10 Tex. Civ. App. 505.) The decisions in Cumming v. 
Prescott, 2 Younge & C. 488, and Wagner v. Marple, 10 Tex. 
Civ. App. 505, both recognize the doctrine that where there 
is a delivery of the certificate with the clear intent thereby 
to pledge the stock, an equitable right is created in the person 
to whom the delivery is made, which may be enforced in 
equity, as between the parties. (See, also, Rice v. OUbert, 
173 111. 349.) In no case that we have been able to find, 
where the controversy was between the original parties, and 
the rights of third parties had not intervened, has a contrary 
doctrine been enunciated. The precise question appears never 
to have been decided by this court. In some of the cases 
to be found in our reports it is apparent that there was noth- 
ing beyond a mere delivery of the certificate, but the question 
in each of these cases was as to the rights of third parties, 
and in the case of Brewster v. Hartley, 37 Cal. 15,^ the ques- 
tion was not involved. 

We can see no reason why the well-established rules **that 
an agreement in writing to give a mortgage, or a mortgage 
defectively executed, or an imperfect attempt to create a mort- 
gage, or to appropriate specific property to the discharge of 
a particular debt, will create a mortgage in equity, or a 
specific (equitable) lien on the property intended to be mort- 
gaged" {Daggett v. Rankin, 31 Cal. 321; Higgins v. Manson, 
126 Cal. 467^) is not applicable to the case at bar. Mr. Pome- 
roy, in his Equity Jurisprudence, says that a merely verbal 



199 Am. Dee. 837. 177 Aau 8t Bep. 192. 



Oct. 1908.] Hall v. Catot. 19 

agreement may create such a lien on personal property, en- 
forceable against the property in the hands not only of the 
original contractor, bnt of his heirs, administrators, execu- 
tors, voluntary assignees, and purchasers or encumbrancers 
with notice ; and that equity looks at the final intent and pur- 
pose rather than the form, and if the intent appear to pledge 
certain property as security for an obligation, the lien follows. 
(Pomeroy's Equity Jurisprudence, sees. 1235-1237.) There 
was here a clear attempt to hyx>othecate the shares of stock 
represented by the certificate delivered to the creditor as se- 
curity for the note. The debtor undoubtedly intended, in 
placing the certificate of ownership of his shares in the pos- 
session of his creditor, to pledge these shares as security for 
the performance of his obligation, and the creditor received 
the certificate with the understanding that the shares were 
to be retained as such security. If the attempt to appro- 
priate these shares as such security was imperfect by reason 
of the absence of indorsement or other writing signed by the 
debtor, equity will, in the absence of intervening rights of 
third parties, looking at the intent rather than the form, ''treat 
the subject-matter as to collateral consequences and incidents 
in the same manner as if the final acts contemplated by the 
parties had been executed exactly as they ought to have been. " 
{Daggett v. Banhin, 31 Cal. 321.) It will, as between the 
parties, treat the property as pledged, and allow the creditor 
to enforce in this proceeding the lien attempted to be created. 
(Higgins v. Manson, 126 Cal. 467.*) 

We are of the opinion that upon the findings of fact the 
plaintiff should be held entitled to a lien upon the shares of 
stock evidenced by the certificate and to an order of sale 
thereof to satisfy the claim embraced in her second cause of 
action. 

As to the first cause of action, the judgment is affirmed. 
As to the second cause of action, the portion of the judgment 
appealed from is reversed, with directions to the court 
below to enter judgment in accordance with the views herein 
expressed. 

Shaw, J., and Van Dyke, J., coneurred. 

177 Am. St B«p. IM. 



20 Roberts v. Krafts. [141 Cal. 



[L. A. No. 1144. Department Two.— Oetober 17, 1003.] 

WILLIAM M. ROBERTS, Respondents, v. GEORGE H. 
KRAFTS et al., AppeUants. 

WATEa-BioHTS — Grant of Bight to Develop WatDt— Ootrnakt 
AGAINST Diminution — Action k>r Breach — iNsurricnNT Defense. 
— In an action l^ a grantee of the defendants of the right to de 
yelop water on defendants' land for use on plaintiff's land, in the 
sub-surface waters of a creek passing through defendants' land, 
to recover damages for breach of the covenant hj the defendants 
that if the rights owned hj the plaintiff were interfered with by a 
contemplated diversion of the flow of the stream by the defendants, 
or their successors or assigns, through a stone ditch above defend- 
ants' land, the defendants would grant him a perpetual right to the 
amount of diminution thereby effected, not exceeding ten inches 
of water, — an answer that the owners of the stone ditch had the 
right to the surface flow of the water, aiid that the diversions com- 
plained of as diminishing plaintiff's rights, were made by defend- 
ants' grantees by the permission of such uwLors, constituted no 
defense to the action upon the covenant m&de by the defendants, 
and was properly stricken out. 

Id. — Development of Water — Contract— Appropriation. — Under a 
grant to plaintiff of the right to enter upon defendants' land and 
"develop any and all water thereon by means of cuts, tunnels, or 
otherwise," and convey them to plaintiff's laud, where the plaintiff 
did, by means of tunnels and cuts, concentrate and accumulate the 
waters diffused through a saturated mass of sand, gravel and boul- 
ders, constituting the sub-surface flow of a creek on defendants' 
land which was the only water contemplated by the grant and the 
covenant made by defendants, such acts constituted a de\elopment of 
the water as provided in the contract, and was also a development 
of water as generally understood with reference to procuring, con- 
trolling, and appropriating subterranean waters. 

Id. — Estoppel of Defendants — Eights of Other Parties. — Under 
the terms of the deed and agreement between defendants and plain- 
tiff, under which defendants granted and confirmed the right of 
plaintiff to the waters developed on his land, and covenanted against 
diminution thereof, the defendants are esto])ped from claiming that 
the waters granted by them, and developed and appropriated by the 
plaintiff' did not belong to them, but to third parties having rights 
below their land. 

Id. — Change op Poini or Diversion peiom Stone Ditch — Liabilitt of 
Dependants undee Conteact. — The fact that the grantees of the 
defendants, after diverting the water through the stoae ditch aa 
proposed in the contract, subsequently changed the point of div<r- 



Oct. 1903.] Roberts v. Krafts. 21 

sion to a point above plaintiff's cuts, ditches, and tunnels, is not 
material to the liability of the defendants under the contract to 
indemnify plaintiff a^i^inst loss by diminution of the water to the 
extent agrreed. The gist of the covenant was the diversion of the 
waters of the creek by the defendants, not to be interfered with by 
the plaintiff, for which non-interference defendants covenanted that 
he would be protected against damage. 
Id. — Special Damage — Injury to Trees and Pbuit Crop. — ^Where the 
court found that defendants knew when the contract was made 
that the ten inches of water contracted for had a peculiar value to 
plaintiff, inasmuch as his land and orchard were of little value 
without ity and the orchard waa in bearing when the breach of 
covenant was eonmiitted, and there was no other source from which 
plaintiff could obtain water for irrigation, the court was warranted 
in making an award of special damages to the extent of the injury 
suffered to the trees and crops by reason of the failure to furnish 
the water as agreed. 

APPEAL from a judgment of the Superior Court of San 
Bernardino County and from an order denying a new trial. 
D. EL Trask, Judge presiding. 

The facts are stated in the opinion of the court 

Curtis & Curtis, and E. E. Annable, for Appellants. 

The contract for the development of the water on defend- 
ants' land was an actionable wrong against the zanja-owners, 
and could not confer a right. {Holman v. Brown, 1 Cowp. 
341; Arnold v. Clifford, 2 Sum. 238.) Improper damages 
were allowed for the loss of crops. {Pallett v. Murphy, 131 
Cal. 192; Wallace v. Ah Sam, 71 Cal. 197.*) 

Byron Waters, James Hutchings, and Waters & Wylie, for 
Respondent. 

There was a development of water as contemplated by the 
deed and contract, and within the right of appropriation of 
developed water. {Vineland Irr. Dist. v. Azusa Irr, Co., 123 
Cal. 495 ; Beck v. Pasadena etc. Water Co., 130 Cal. 53 ; Yar- 
wood V. West Los Angeles W. Co., 132 Cal. 207 ; ChurchM 
V. Maviana Rose, 136 Cal. 576.) The defendants were es- 
topped by their deed and contract from disputing plaintiff's 
rights. (Bigelow on Estoppel, 4th ed., 355; Cordon v. City 

100 Amu B«p. 584. 



22 Roberts v. Krafts. [141 Cal. 



of San Diego, 101 Cal. 522.i) The damages to the orchard 
were properly allowed. (Mabb v. Stewart, 133 CaL 559.) 

LORIQAN, J. — ^This is an action to recover damafres for 
breach of a covenant relative to certain water-rights. Plain 
tiff obtained judgment for nine thousand dollars, and de- 
fendants appeal from the judgment and from the order deny- 
ing their motion for a new trial. The general features of the 
case, as gathered from the findings, are that prior to 1887, 
and up to the commencement of this action, plaintiff was the 
owner of one hundred acres of land in San Bernardino (Tounty, 
in proximity to a stream known as Mill Creek, which tract was, 
to a large extent, set out in orchards, and plaintiff and his 
family resided upon the premises. 

Mill Creek is a natural, innavigable stream of water in 
said county, rising in the San Bernardino Mountains, and 
flowing through and emerging from Mill Creek Canyon upon 
a portion of the San Bernardino Valley, until it empties into 
the Santa Ana River. The bed of said creek, where the same 
emerges from said canyon, which is about a mile above a 
certain forty-acre tract through which it flows (which tract 
\vdll presently be more particularly referred to), is composed 
of sand, gravel, and boulders, extending down a considerable 
depth, and is at all times capable of a ready flow of water 
through the same underneath the surface of said creek, and 
said stream from the point where it emerges from said canyun, 
until it empties into the Santa Ana River, has a surface and 
subterranean flow, constituting a watercourse, having a known 
and well-defined channel and continuous flow of water there- 
in. 

On August 19, 1892, the defendants granted to plaintiff the 
right to enter upon said certain forty-acre tract of land, — 
the S. W. % of the N. W. J4 of Sec. 13, T. 1 S. etc.— below 
the point of diversion hereafter referred to, **and develop 
any and all water thereon by means of cuts, tunnels, or other- 
wise." Prior to said grant plaintiff had entered on said tract 
and appropriated six and three-fourths inches of water of 
the subterranean flow of said stream (to which he had ac- 
quired a prescriptive right) , and by means of a pipe-line^ 

140 Am. St. Bep. 73. 



Oct. 1903.] Roberts v. Krafts. 23 

conveyed it onto his said one-hundred-acre tract, and used it 
for irrigation, household and domestic purposes. 

On August 22, 1892, the defendants, who were the ownen 
in fee of the forty-acre tract above referred to, subject to 
said right of plaintiff to develop water thereon, and the plain- 
tiff, executed an agreement, the material portions of which 
are: **That, whereas, the party of the second part [plaintiff] 
is the owner of certain water-rights, and the right to develop 
water on" said forty acres, ''and the parties of the first part 
[defendants] contemplate diverting the flow of the water of 
the stream Imown as Mill Creek," in or near sections 13 and 
14 in said township ''by diverting said water from the natural 
channel of said stream, at or near the upper end of the stone 
ditch built and owned by the owners of Mill Creek Zanja, 
and running the same through said stone ditch. Now, in con- 
sideration of," etc., "the said parties of the first part do 
hereby covenant, promise, and agree to and with the party 
of the second part that, if by the diverting of said water of 
Mill Creek, as aforementioned by them, or their successors, 
or assigns, the water-right now belonging to the party of 
the second part, or any water that he may hereafter develop 
on the said 'forty-acre tract,' is diminished within seven years 
from date hereof, that they will furnish him with a perpet- 
ual water-right, conveying an amount of water equal to the 
amount so diminished, and deliver the same into his pipe- 
line, flume, or ditch," on said forty-acre tract, "provided, 
that the total amount to be furnished under this agreement 
shall not exceed ten inches of water. In consideration of the 
above agreements . . . the party of the second part promises 
and agrees that he will not hinder, impede, or delay the chang- 
ing of the course of the water as herein contemplated." 
When said agreement was executed defendants claimed to 
own the right to divert the waters of said Mill Creek, in the 
manner and at the points indicated in it, below said forty-acre 
tract, and convey the full flow to a point over a mile below 
said forty-acre tract, and in December, 1892, conveyed such 
ownership or right to divert said water to the Redlands Elec- 
tric Light and Power Company, a corporation; that between 
August 22, 1892, and June 1, 1896, plaintiff, by means of 
futs, ditches, and tunnels, made and excavated on said forty- 
acre tract, about the middle thereof, developed and intercepted 



24 Roberts v. KRAPra [141 Cal. 

a large quantity of the subterranean flow of said water, and 
of the water percolating through the sand, gravel, and boul- 
ders of said tract, from both the surface and subterranean 
flow of said creek to the extent (with the six and three-fourths 
inches theretofore appropriated) of fifty-four and three- 
fourths inches, and conveyed the same to his hundred-acre 
tract, and beneficially used it for agricultural, domestic, and 
household purposes; that in 1893, by virtue of the convey- 
ance from defendants, the said electric company entered upon 
the creek at the northeast corner of said forty-acre tract, and 
above plaintiff's cuts, ditches, and tunnels, and by means of a 
pipe-line constructed in its bed, diverted all the surface water 
flowing in said creek, and conveyed it about a mile below sai J 
forty-acre tract, to a point some four hundred and fifty feet 
lower in elevation than said tract, and used it for electrical 
purposes; that in 1896, after all of the plaintiflf's developments 
were made, the company extended its pi[)e some thirty -six hun- 
dred feet farther up stream, and took all the surface water 
from this last point for the use above indicated; that before 
the construction of said pipe-line in 1893, or its extension in 
1896, and from time immemorial, the surface flow of said 
creek was sustained by a saturated mass composed of sand, 
gravel, and boulders beneath it, and that said surface flow 
had always wasted and been diminished by wajstaj^^e into said 
sand, gravel, and boulders, and constituted a subterranean 
stream, which, to the extent of upwards of a hundred inches, 
flowed in said subterranean channel between the points of 
diversion by the company and the location of plaintifT's tun- 
nels, shafts, and ditches, down and through said forty-acre 
tract; that none of the water developed and used by plaintiff 
had been theretofore appropriated or used by any perso'i 
whatever, but had theretofore been allowed to run to waste 
and percolate through the soil until developed and saved from 
waste and devoted to a useful purpose by plaintiff; that the 
diversion by the company had so diminished the subterranean 
flow in said forty -acre tract that the amount of water devel- 
oped by plaintiff was reduced forty-four inches and upwards 
and that the liow thereof is but 4.94 inches; that ir 18S9 
plaintiff demanded, under the said agreement, that the de- 
fendants deliver him said ten inches of water agreed for, 
which they refused to do. The court found, in addition to 
the above f acts, that the one-hundred-acre tract of plaintiff 



Oct. 1903.] BoBERTS V. Krafts. 25 

was practically arid land, and his orchard of little value with- 
out irrigation, and that by the failure of defendants to furnish 
the water as agreed, the fruit-trees in said orchard were in- 
jured and the fruit thereon was rendered valueless, for which 
special damages of one thousand dollars were awarded, in ad- 
dition to eight thousand dollars, which the court found was 
the value of the perpetual flow of ten inches of water. 

As grounds of reversal, appellants insist that no water 
was developed on the forty-acre tract, as provided in the con- 
tract ; that no water was diverted by them, or their successors, 
at the place, and by the means, described in the contract, and 
that improper damages were allowed. 

Defendants also insist that the court erred in striking out 
parts of their amended answer. 

While in the transcript, it appears that specifications con- 
cerning the insufficiency of the evidence to sustain certain 
of the findings are made, no point in regard to any of them is 
urged in appellants' brief, and we take it, that reliance Ls 
placed solely upon the grounds above indicated, and we shall 
limit ourselves to a consideration of them alone. Disposing 
first of the alleged error in striking out portions of the 
amended answer : In this answer which was offered during the 
trial of the case, it is set up that when the grant to plain- 
tiff was made by them, and the contract entered into with him 
was executed, the surface waters of Mill Creek were, and for 
a long time had been, diverted through a certain ditch, known 
as the Mill Creek Zanja, and that the Redlands Electric Light 
and Power Company made the diversions complained of 
through the permission of the owners thereof. 

We cannot see how this would constitute any defense under 
the contract. There is no question but that the electric com- 
pany succeeded to the rights which the defendants claimed to 
possess, to divert these waters for electrical purposes, when 
the contract was executed. The contract did not provide that 
the plaintiff was to establish his right against all claimants 
to the waters he might develop under defendants' grant, and 
the right to do which was confirmed by recital in the agree- 
ment, before he could have a right of action against defend- 
ants upon it. Under the terms of the contract it is of no 
moment whether the zanja-owners, or defendants, had the 
better right to appropriate the water. Defendants claimed to 



26 Roberts v, Krafts. [141 Cal. 

own the right, and recited in the contract that they contem- 
plated diverting the waters of the zanja, and to run the same 
through that ditch. They contracted that if a diversion by 
them, or their successors in interest, damaged plaintiff, they 
would indemnify him in the way provided for in the contract. 
It was not a matter under the contract as to how the company 
acquired the right to divert the stream — ^whether from de- 
fendants or some third person, or from both — ^but whether, 
in exercising its right of diversion, plaintiff was damaged. 
If he was so damaged, defendants are bound by their con- 
tract as it is written, and in accordance with the fact, and the 
defense interposed could not avail them. 

Coming now to the merits of the appeal : — 

It is insisted, first, that there was no water developed by 
the plaintiff, as provided in the contract. We do not discover 
the slightest ground for this claim. That the plaintiff did, 
by means of tunnels and cuts, concentrate and accumulate the 
waters diffused through the saturated mass of sand, gravel, 
and boulders constituting the sub-surface flow of Mill Creek, 
and convey them to his home premises for general use, there 
can be no question. This was not only a development, but it 
was the exact method of development, and the waters to which 
it should apply, as specified in the conveyance of August 19, 
1892, by the defendants to plaintiff, of the right to enter the 
land, and ** develop any and all waters thereon by means of 
cuts, tunnels, or otherwise." It was equally this development 
which all the parties had in mind, when, in the agreement of 
August 22, 1892, they recited that the plaintiff was the owner 
of certain water-rights, and the right to develop water on this 
forty acres. And it was the possible loss of the waters so de- 
veloped, by the diversion of Mill Creek, that they had in 
mind. They certainly could have had no other, because there 
is no pretense that any other waters existed on the tract, 
except this subterranean flow. 

It was equally a development, as generally understood, 
with reference to procuring, controlling, and appropriating 
subterranean water. In Vineland Irr. Disi. v. Azusa Irr. Co., 
126 Cal. 495, the court says **We therefore hold it to be the 
law, and we think it to be a moderate and just exposition 
thereof, that one may, by appropriate works develop and se- 
cure to useful purposes the sub-surface flow of our streams, 



Oct. 1903.] BoBBBTS V. Krafts. 27 

tind become, with due regard to the rights of others in the 
stream, a legal appropriator of water by so doing. . . . It', 
upon the other hand, one can by development obtain subter- 
ranean waters without injury to the superior rights of others, 
clearly he should be permitted to do so." {Beck v. Pasadena 
V^aier Co,, 130 Cal. 53; Yarwood v. West Los Angeles Water 
Co., 132 Cal. 207; ChurchiU v. Maviana Rose, 136 Cai. 576.) 
Under this same head counsel for appellants discuss, quite 
generally, the proposition that the subterranean waters so 
developed by plaintiff were not subject to development or ap- 
propriation, as they were part of the Mill Greek stream, which 
many years before plaintiff entered on this forty-acre tract 
at all, had been diverted and appropriated some distance 
below it, through a ditch, and was still being diverted and 
used. Assuming this to be true, still under the terms of the 
deed and agreement between defendants and plaintiff we can- 
uot see how any advantage can be taken of that fact. This is 
only under another phase of the question attempted to be pre- 
sented under that portion of the amended answer stricken out, 
and what was said concerning it applies here. Aside from 
the finding of the court that the appropriation by plaintiff 
was the only appropriation made of these waters (which un- 
der Vineland Irr. Dist. v. AziLsa Irr. Co., 126 Cal. 495, he could 
make) still, aside from this, the defendants, by their deed and 
agreement, are estopped from asserting that plaintiff did not 
have title to the waters developed by him. They granted him 
the right to develop all the waters on the tract, without reser- 
vation or limitation, and cannot be heard now to say that some 
of the waters which he did develop were not waters which 
they granted him the right to develop, but which belonged to 
some one else. They cannot go behind their deed to attack 
the right to these waters, which they purported to convey, and 
the ownership of which in the contract they recognized in 
the plaintiff. 

Appellants' second point is, that no water was developed 
at the place and by the means described in the contract. Theii 
particular claim is, that the diversion of which plaintiff com- 
plains was not made at the upper end of the stone ditch men- 
tioned in the contract, but at a much farther point up the 
stream. We do not think the particular point of diversion 
is of controlling or any importance. The fact is, that the first 



28 Roberts t;. Krafts. [141 CaL 

diversion made by the Electric Light and Power Company, 
as successors to the defendants, was above the upper end of 
the stone ditch, and the diversion farther up the stream wan 
not made by it until 1896. In insisting on this point we think 
appellants are attempting to place too strict and literal a 
construction on the contract, one which certainly is not in har 
mony with its general terms, or its particular object, or thv» 
purposes they had in view, and which is calculated to sub- 
stitute the manner or means of diversion for the fact of 
diversion, which was the important matter in the contract 
While the recital in the agreement is, that the defendants con- 
template diverting the flow of the water of Mill Creek "by di- 
verting said water from the natural channel of said stream at 
and near the upper end of the stone ditch . . . and runnin^^ 
the same through said ditch," this is, nevertheless, only a 
recital and not part of the covenant. It is simply the declarap 
tion of a general purpose to be accomplished near a certain 
point, in a certain way. The covenant which follows this 
recital, and upon which plaintiff's rights are based, provides 
that **»/ by the diversion of said water of MiU Creek, as afore^ 
mentioned, by them, or their successors, or assigns," the water 
now belonging to plaintiff, or to be developed, **is dimin- 
ished,' ' etc., etc. This covenant embraces the purpose and 
object the parties had in view when they contracted, and does 
not apply to any particular place or method. The general 
purpose they had in view was to divert all the waters of the 
stream, and it was this general diversion which they recog- 
nized might injure the plaintiff's acquired rights in developed 
water, and against which he was to be protected by the 
contract. And this is further apparent from the covenant on 
plaintiff's part not to ** hinder, impede, or deJay the changing 
of the course of the water. " The gist of the covenant was the 
diversion of the water of Mill Creek by the defendants, not 
to be interfered with by the plaintiff. Under the terms of 
that contract, as it was a matter of more particular interest 
to them, the defendants accorded themselves wide discretion 
in determining where, or how, the diversion should be made, 
a discretion which the plaintiff covenanted not to interfere 
with, and which covenant he faithfully kept, and for which 
non-interference the defendants covenanted that he would 



Oct. 1903.] Roberts v. Krafts. 29 

be protected against any damage, which the exercise of that 
discretion on their part should result in to him. 

As to the amount of damages. This only applies to the one 
thousand dollars which the court found the plaintiff had 
suffered as special damages for injuries to trees, and the 
fruit crop thereon, by reason of the defendants' failure to 
furnish the water as agreed. It is insisted by appellant that 
such damages are remote and speculative. The court found 
that, when the contract between the parties was made, the de- 
fendants knew that the ten inches of water contracted for 
had a peculiar value to plaintiff, inasmuch as his land and 
orchard were of little value without it. The orchard was in 
bearing when the breach of the covenant was committed, and 
there was no other source from which plaintiff could obtain 
water for irrigation. There is no question but what the 
amount of damages awarded was suffered, and we think that 
under the facts as found the court was warranted in making 
the award. {Mabb v. Stewart, 133 Cal. 559.) 

The judgment and order appealed from are affirmed. 

McParland, J., and Henshaw, J., concurred. 

Hearing in Bank denied. 

Beatty, C. J., dissented from the order denying a hearing 
in Bank. 



30 Stimson Co. v. Los Angeles Traction Co. [141 Cal. 



[L. A. No. 1063. Department One.— October 20, lOOS.] 

STIMSON MILL COMPANY, Respondent, v. LOS ANGE- 
LBS TRACTION COMPANY, AppeUant. 

Mechanic's Lixn — Oonstbdotion or BRiDcnD— Usb or Matisialb dt 
Temporary Structure — Propertt or Oontsactors — ^Provision in 
Ck>NTRACT. — Materialmen cannot enforce a lien upon a completed 
bridge for materials which were not furnished to be used, and were 
not actually used, in the bridge as contracted for and completed, 
but were furnished and used only in the erection of a temporary 
structure which formed no part of the completed bridge, bat which 
the contractors were permitted by the contract to proyide for tem- 
porary support of track, rails, and cars, to prevent damages for 
delay under the terms of the contract until permanent steel support 
should be furnished as contracted for, which temporary structure 
remained the property of the contractors, and was properly re- 
moved by them when the bridge was completed. 

li>. — ^UsE or Temporary Structure— Aockptancb — ^Void Contract^— 
EviDENCB or CoNSTRUOTiON.— The use by the defendant of the tem- 
porary structure for the running of trains did not, under the cir- 
cumstances of the case, furnish any evidence of the aeeeptance of 
the bridge as completed; nor was its occupation by it under a void 
contract conclusive evidence of construction. 

APPEAL from a judgment of the Superior Court of Loa 
Angeles County and from an order denying a new triaL 
W. F. Fitzgerald, Judge. 

The facts are stated in the opinion. 

E. E. Millikin, for Appellant 

Percy R. Wilson, for Respondent 

SMITH, C. — This suit was brought to foreclose a lien for 
materials furnished by plaintiff in the construction of defend- 
ant's bridge over the Los Angeles River in the city of Los 
Angeles. The plaintiff had judgment, from which and from 
an order denying its motion for a new trial the defendant 
appeals. The bridge was constructed under an unrecorded 
contract with Sawyer and Arthur, partners, by the terms of 
which it was to consist of five steel spans and the balance of 



Oct. 1903.] Stimson Ck). v. Los Angeles Traction Co. 31 

wood and steel, or of wood By the terms of the contraet it 
was to be completed November 9, 1898 ; and it was stipulated 
that for delay in completion the contractors should pay, while 
the bridge remained uncompleted, fifty dollars per day for ten 
days, and thereafter one hui^dred dollars. But it was pro- 
vided ''That from and after the day that said contractors al- 
low said party of the first part to run cars over said bridge, 
. . . whether over the completed structure or a temporary 
structure which said contractors may provide, ... no dam- 
ages shall be awarded hereunder ; but that for the purposes of 
ascertaining said liquidated damages said structure shall be 
considered as completed." 

The bridge was completed, with the exception of the five 
steel spans, some time prior to the 15th of November; when it 
was ascertained that the steel for the uncompleted part could 
not be obtained in time to complete the bridge within the time 
stipulated. Thereupon, at the suggestion of the manager of 
defendant, the contractors undertook to put up, before the 
30th of November or 1st of December, a temporary structure 
of timber over which the cars could be run on that date ; and 
this was accordingly done. This structure rested upon planks 
laid on the ground, and was not in any way physically con- 
nected with the bridge, except that on it was laid the per- 
manent track consisting of stringers, ties, and rails. The 
structure was soon afterwards replaced by the steel structure 
originally contemplated — ^the work of substitution conmienc- 
ing immediately upon the completion of the temporary struc- 
ture, and its effect being to leave the track supported by the 
new steel structure in place of the wooden structure removed. 
It is admitted that the plaintiff furnished the contractors 
lumber of the aggregate value of something over five thou- 
sand dollars, and it is found by the court that this was 
used in the construction of the bridge. But it appears 
from the evidence that a part of the lumber went into 
the temporary structure and wajs afterwards carried away 
by the contractors; and it is claimed by the defendant 
that the plaintiff's claim should be reduced by this amount 
The court below held the contrary, refusing to allow the 
defendant to show the amount and value of the lumber 
used in the temporary structure, and whether in this the 



32 Stimson Co. v, Los Angeles Tbaction C!o. [141 CaL 

court erred is the only question in the case that will require 
consideration. 

The contention of the appellant on this point must, we 
think, be sustained. It is settled by many decisions in this 
state that to entitle a materialman to a lien under section 
1183 of the Code of Civil Procedure the materials must be 
furnished to be used^ and must actually be used, in the con- 
struction of the building or other structure against which 
the lien is sought to be enforced (Houghton v. Blake, 5 CaL 
240; Patent Brick Co. v. Moore, 75 Cal. 211; Silvester v. Coe 
Quartz Min. Co,, 80 Cal. 513; Bewick v. Muir, 83 Cal. 378; 
Hamilton v. Delhi Min. Co., 118 Cal. 153, 154^; Roebling's Sons 
Co. V. Bear Valley Irr. Co., 99 Cal. 488) ; and this we under- 
stand means that the materials must be used, not merely in 
the process of construction, but ''in the structure," — ^that 
is to say, they must be used as the materials of which it is 
constructed. {Hamilton v. Delhi Min. Co. 118 CaL 153; 
Silvester v. Coe Quartz Min. Co., 80 Cal. 513 ; Gordon Hard- 
ware Co. v. San Francisco, etc. B. R. Co., 86 Cal. 620.) 

The case, we think, comes clearly within the application of 
this principle. The temporary structure was put in merely 
for the purpose of supporting the track until the steel neces- 
sary for its permanent support could be obtained. This was 
aone by the contractors on their own account, under the pro- 
vision of the contract authorizing them, as a means of avoid- 
ing liability for the heavy damages stipulated for delay in 
completion of the work, to do so. The temporary structure 
was therefore not a part of the bridge, either as contracted 
for or as actually completed; but it remained the property 
of the contractors, who were entitled to remove it. Hence 
neither the contractors, nor the plaintiff as furnisher of the 
materials for it became entitled to a lien. 

Nor, as is claimed by the respondent's counsel, did the use 
of the temporary structure by the defendant, under the cir- 
cumstances of this case furnish any evidence of its acceptance 
of the bridge as completed. Nor, is it true, that the ** occu- 
pation of a structure under a void contract is conclusive upon 
the question of construction." It is not so held in Joost v. 
Sullivan, 111 Cal. 286 (cited by counsel), or in the case 
therein cited {Oiant Power Co. v. San Diego Flume Co^ 



Oct. 1903.] Estate of Eassok. 83 

78 Cal. 196). Nor is the law now the same as when those 
eases were decided. (Code Civ. Proc, sec. 1187.) 

We advise that the judgment and order appealed from be 
reversed. 

Gray, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order appealed from are reversed. 

Shaw, J., Angellotti, J., Van Dyka^ J« 



[Sae. No. 998. Department One.*-Oetober 81, 1908.] 

In the Matter of the Estate of GBOEGB M. KASSON, De- 
ceased. GEORGE W. LINDY, Respondent, v. MAR- 
THA E. McGHESNEY et al., Respondents, and MART 
E. MANN, Appellant. 

PROCXEDINO TO DSTIERMINS HUBSmP — BbOOND TWAL— OOKTINUANO*— 

DiBGRsnoN. — Upon the second trial of a proceeding to determine 
heirship, where the cause was long pending, and a previous con- 
tinuance had been granted to the appellant for several months, 
and he had had ample opportunity to prepare for trial, and the 
cause was set for trial, without objection, hj a jury demanded by 
the appellant, a motion for continuance by him t^hereafter was ad- 
dressed to the discretion of the court, and it was not an abuse of 
discretion to refuse it and to proceed to a trial of the proceeding. 

lA— DlSQUALIPICATION OF JUDOS — BlAS AND PREJXTDICS — OONFLIOTINO 

Ajtidavits — Motion Pbopebly Denied. — Where the disqualification 
of the judge to try the proceeding was objected to by the appellant 
for alleged bias and prejudice, but upon the showing made by the 
affidavits and counter-affidavits it did not appear that the ju'lge 
could not fairly and impartially try the cause, the motion to dis- 
qualify him for bias and prejudice was properly denied. 
Id. — Nature or Pbooeeding — Each Party an Actor as against Ad- 
verse Parties — Failure to Appear at Trial — Nonsuit. — In a 
proceeding to determine heirship each party is an independent actor 
and is a plaintiff, as against all other parties whose claims are 
adverse, though styled a defendant; and where the appellant who 
claimed the entire estate as against the other parties to the pro- 
ceeding failed to appear at trial, after refusal of her motion for 
CXTiT. CkL— « 



84 Estate of Kasson. [141 CaL 

eontinuance, and offered no evidenee in support of her elaun, m 
nonsuit was promptly grranted against her, and her elaim was prop- 
erly eliminated from the trial. 

Id. — Ebbor not Excepted to. — If there were any error in granting the 
nonsuit, it would be error occurring at the trial, which could not 
be eonsidered upon appeal where no exception was taken thereto at 
the time. 

Id. — Motion fob New Tbiax#— Disqualification of Judge as Attobnxt 
— Affidavits Filed Too Late — Counteb-Showing. — ^Where the 
disqualification of the judge to hear the appellant's motion for a 
new trial was objected to, on the additional ground that he had 
acted as an attorney for a special administrator in the matter of 
the estate, but the affidavits in support thereof were filed too hite to 
be considered^ and it appeared by counter-affidavits that the judge 
was not disqualified as alleged, the motion to disqualify him was 
properly refused. 

APPEAL from an order of the Superior Court of San 
Joaquin County denying a new trial. Edward I. Jones, 
Judge. 

The facts are stated in the opinion of the court 

Woods & Levinsky, and James H. Budd, for Appellant 

John A. Percy, and Budd & Thompson, for Martha E. 
UeChesney et al., Respondents. 

VAN DYKE, J. — The action in which this appeal is taken 
is a proceeding to determine heirship under the provisions 
of section 1664 of the Code of Civil Procedure, in the estate 
of George M. Kasson, deceased. Said Kasson died Septem- 
ber 23, 1895, leaving a will, which was duly admitted to pro- 
bate November 1, 1895, in the superior court of San Joaquin 
County. 

The proceeding to determine heirship was instituted Jan- 
uary 15, 1897, by George W. Lindy, who is styled plaintiff. 
In his petition, or complaint, it was set forth and claimed 
that he was the only child and heir at law of said George M. 
Kasson; that having been omitted from the will he was en- 
titled to the whole of said estate. The respondents here are 
legatees and devisees under the will of said Kasson, and 
appeared in due time, denying the claim of said Lindy, and 
set forth their claim to the whole of said estate under said 



Oct. 1903.] Estate of Kasson. 35 

will. Appellant here was the last to appear and file her claim 
in said proceedings. She denied the claims of all the other 
parties, and alleged that she was, and is, the only child and 
sole heir at law of said deceased, and that being also omitted 
from the will, she is entitled to the whole of said estate. 

Said action or proceeding thereafter came on for trial, 
and on April 28, 1898, judgment was entered decreeing that 
neither Lindy nor the appellant were entitled to any part 
of said estate, and that the respondents were entitled to the 
whole thereof by virtue of the terms of the will. On appeal 
by the appellant herein from this judgment a new trial was 
granted by this court in January, 1900, mainly on the ground 
Df error committed by the trial court in refusing to allow 
the appellant the right of cross-examination of certain of 
the witnesses on the part of the respondents. {Estate of 
Kasson, 127 Gal. 496.) 

The matter was thereafter regularly set down to be again 
tried on May 28, 1900, and upon motion of counsel for ap- 
pellant the date of the trial was afterwards postponed; and 
on the calling of the regular trial calendar of the court below, 
in October, 1900, the cause was set down to be tried before a 
jury on the 13th of December, 1900. On December 3, 1900, 
counsel for appellant moved the court for a postponement 
of the trial, which motion was denied on December 5, 1900. 
On December 10th — ^being three days before the cause and 
been set down for trial by a jury — counsel for appellant ap- 
peared and alleged the disqualification of the judge, before 
whom the cause was then pending, to try the same, upon the 
ground of prejudice and bias. The other judge of the supe- 
rior court of said county, at that time Honorable Joseph H. 
Budd, was disqualified, being the father of one of the attor- 
neys in said cause. On December 13, 1900, the cause was 
regularly called for trial, and a jury was in attendance, and 
respondents, being in attendance and ready for trial, de- 
manded that the trial should proceed. The appellant was 
not present, nor were her counsel, but R. E. Beardslee, Esq., 
representing appellant's counsel, appeared and presented a 
motion for a continuance of the trial, which motion was de- 
nied, and thereupon Mr. Beardslee stated that he had nothing 
further to do with the case, and left the courtroom. The jury 
was dismissed, pursuant to a rule of the court, because no 



36 Estate of Easson. [141 Cal. 

one was present to deposit the jury fee. The appellant not 
appearing, the court below caused her default to be entered 
for failure to prosecute or defend her rights at the trial, 
and thereupon the court also entered a nonsuit against her, 
and proceeded to hear the evidence of the resix>ndents in 
support of their claim, and thereafter entered judgment in 
their favor and against the appellant. The appellant there- 
after moved for a new trial, which motion was denied, and 
this appeal is taken from the order denying said motion. 
Appellant also attempted to appeal from the judgment and 
from the order granting a nonsuit against her, and from the 
order entering her default as aforesaid. This court, in De- 
cember, 1901, on motion of the respondents, dismissed the 
appeals taken in said cause from the orders granting a non- 
suit against her, and also granting a default, and from the 
judgment given and entered therein in favor of the other 
defendants and against her, but denied the motion to dismiss 
the appeal from the order denying a new trial. {Estate of 
Easson, 135 Cal. 1.) 

The only appeal, therefore, now before the court to be 
considered is that from the order denying appellant's motion 
for a new trial. 

One of the main contentions of appellant on this appeal 
is, that the refusal of the trial court to grant her motion for 
a continuance or postponement of the trial was such an 
abuse of discretion as to amount to error. In the bill of ex- 
ceptions prepared by appellant on motion for a new trial it 
is recited: **That on October 1, 1900, at the calling of the 
calendar for the purpose of setting cases for trial, the above- 
entitled action and proceeding was, without objection by 
any one, set for trial before Edward I. Jones, one of the 
judges of said court, on December 13, 1900, attorneys in said 
cause being present, including L. Levinsky, of Woods & Le- 
vinsky, attorneys for defendant and claimant Mary B. Mann, 
who then and there demanded a trial with a jury. At a 
former trial of said action and proceeding by a judgment 
duly had, given, and entered, it was adjudged that (George 
W. Lindy, plaintiff therein, is not the son or heir of said 
George M. Kasson, deceased, and is not entitled to any part 
of the estate of said deceased, and such judgment as against 
said Lindy had become final long before the said time of 



Oct. 1903.] Estate op Kasson. 37 

calling such calendar on October 1, 1900, as aforestated; and 
presumably, therefore, because of the finality of such jud:?- 
ment the said Lindy did not appear in person, by attorney, 
or otherwise, at the said calling of said calendar, or at any 
time after such judgment became, as aforesaid, final." The 
principal ground on which the motion for continuance was 
based, according to the affidavit of said appellant's attorney, 
Levinsky, was, that his partner, S. D. Woods, had departed 
from the state of California for the purpose of attending 
to his duties as Congressman in the second district of Cali- 
fornia, and would be absent for several months. But in 
another affidavit filed in said cause by said attorney, he says: 
''That affiant has had full charge and control of all litigation 
on behalf of said defendant and claimant, Mary E. Mann, 
in the above-entitled action, matter, and proceeding, at all 
times since the firm of Woods & Levinsky became associated 
and connected therewith.'' In view of the fact that this was 
the second trial, and that the case had been long pending, 
giving the appellant ample opportunity to be ready for the 
trial, and the statement in the bill of exceptions that the 
setting of the trial was without opposition by her attorney, 
but by consent, and that a jury had been summoned at her 
request, we think it was not an abuse of discretion on the 
part of the judge to deny the motion and proceed to the trial 
of the cause. 

Another of the contentions on the part of appellant is, 
that the trial judge was disqualified by reason of prejudice 
and bias, and upon the application of appellant should have 
called in another judge to try the case. In the affidavit in 
support of this demand, the attorney in charge of the case 
on behalf of the appellant says: ''The said Edward I. Jones 
took said motion for continuance under advisement until 
Wednesday, the fifth day of December, 1900, at which time 
he stated: 'I, this morning, have read this affidavit and I 
feel that it will be error to grant a continuance thereon.' 
And affiant cannot understand why said judge should appear 
anxious to try this case on the 13th of December, 1900, when 
no harm can befall the defendants, or either of them, by 
a continuance thereof until some time in January, 1901 ; and 
that on the former trial said judge, Edward I. Jones, re- 
marked from the bench: 'It may seem strange, but, neverthe- 



38 Estate of Kasson. [141 Cal. 

less, it is a fact that until this morning I have not had any 
opinion in this case, but now that the case is submitted to 
me I will decide it. There is no question in my mind that 
neither George W. Lindy, the plaintiff, nor the claimant, 
Mary E. Mann, have any right in this case. I shall find that 
George W. Lindy is not and never was a son of George M. 
Easson, and shall find that the claimant, Mary £. Mann, 
never was the daughter of George M. Easson. And permit 
me to say further that I am strongly opposed to cases of this 
kind. I am opposed to cases where a man who has lived in 
a community for many years dies and then some one appears 
and claims to be a child. This state has had too much of this 
kind of business, and it is time it was stopped. It is veiy 
easy to get counsel to represent parties who claim to be in- 
terested in an estate, and this court is opposed to it.'" 
But he also says: ''That affiant and the claimant, Mary E. 
Mann, desires it expressly understood that in and by this 
affidavit no charge is made or attempted to be made against 
the integrity of the aforesaid Honorable Edward I. Jones, 
and this affidavit is made for the purpose of showing that 
by the conduct and statements made by the said Honorable 
Edward I. Jones, that he is biased and prejudiced in this 
case, and by reason thereof has become and is disqualified 
to sit in the hearing of or at the trial of this action, matter, 
and proceeding.*' 

John E. Budd, attorney for respondents, was sworn, and 
testified in reply to said affidavit, and among other things 
said: **That at no time prior to December 10th, 1900, which 
is tliree days before the date set for the trial of this action, 
did counsel for claimant, Mary E. Mann, make or file any 
objection to the Honorable Edward I. Jones sitting as judge 
on the trial of this case, or in any of the proceedings taken 
therein on any ground whatever." The affidavit of Budd 
also denies that on the former trial Judge Jones made any 
of the statements above set forth. In this connection it may 
be proper to state that on December 13, 1900, substantially 
the same showing was made before this court by said attorney 
Levinsky, on behalf of the appellant herein, in an appli- 
cation for a writ of prohibition restraining the said Honorable 
Edward I. Jones, judge of said superior court of San Joaquin 
County, from proceeding to the trial of the above-entitled 



Oct. 1903.] Estate op Kasson. 39 

action on the ground that said .iudge was disqualified, which 
said application was by this court denied. From the showing 
made by the affidavits and counter-affidavits it does not ap- 
pear that the Honorable Edward I. Jones could not fairly 
and impartially try the cause on account of bias or prejudice, 
and the motion to disqualify him was therefore properly de- 
nied. 

On the day fixed as aforesaid for the trial of the action, 
December 13, 1900, defendants and respondents, with their 
attorneys, appeared, but the attorneys of said Mary E. Mann 
failed to appear, and Robert L. Beardslee, an attorney at law, 
appeared in their behalf, and a jury being regularly drawn 
to try the cause was present in court. Thereui)on Mr. Beards- 
lee said: **At this time, on behalf of Mary E. Mann, one of 
the defendants and claimants, and representing Woods & 
Levinsky, I move the court that the trial of this case be post- 
poned to the regular term in January," and submitted affi- 
davits in support of his motion, which was opposed by the 
defendants and respondents. The affidavit, in support of the 
motion for continuance, was based upon the ground substan- 
tially as in the motion for continuance made on the 3d of 
December, which motion the court denied. What was said 
in reference to the motion of December 3d, is applicable here, 
and it was not an abuse of discretion in denying the motion. 
Dilatory motions are not favored in law. A motion for con- 
tinuance is addressed to the discretion of the court, and, 
as said in Barnes v. Barnes, 95 Gal. 177, the action of the 
court thereon "will not be revised except for the most cogent 
reasons. The court below is apprised of all the circumstances 
in the case, and the previous proceedings, and is therefore 
better able to decide upon the propriety of granting the 
application than the appellate court, and when it exercises 
a reasonable and not an arbitrary discretion its action will 
not be disturbed." After the court denied this last motion 
for a continuance, Mr. Beardslee, who had appeared for the 
regular attorneys of Mary E. Mann, stated that he had noth- 
ing further to do with the case, and thereupon, no one being 
present representing the said appellant, the court granted a 
nonsuit as to her, and this appellant claims to be error, be- 
cause she was not the plaintiff in the action. It is true that 
the appellant was, in the title of the pleadings, styled a "de- 



40 EsTATB OF Eassok. [141 OaL 

fendant," but this fact does not fix her status in the pro- 
ceeding. In a case like this, every party is an independent 
actor, and is a plaintiff as against all other parties whose 
claims are adverse. {Estate of Kasson, 127 Cal. 505.) Section 
1664 of the Code of Civil Procedure, tinder which the proceed* 
ing was had, provides that when the pleadings of all the par- 
ties are in, the subsequent proceedings shall be the same as in 
an ordinary civil action, and that the provisions of said code 
regulating the mode of procedure for the trial of civil actions 
are applicable to this proceeding. The section in question 
also provides that the court shall enter a default against all 
parties failing to ''prosecute or defend their rights," as well 
as those who fail to appear or plead. Under the order of trial 
established by the court in this case, the appellant should 
have introduced her testimony first, she being, as against the 
parties claiming under the will, the plaintiff in the case, and 
it was the duty of the court to determine the heirship of 
said deceased, the ownership of the estate, and the interest 
of each of the respective claimants thereto or therein. {Blffthe 
V. Ayres, 102 Cal. 259.) Appellant failing to introduce any 
proof in support of her daim, it is proper to enter a nonsuit 
as against her, and eliminate that claim from the trial. 
Thereupon the other claimants proceeded to prove that they 
were entitled to distribution of the estate. If this were error 
at all (which we do not admit), it would be one occurring at 
the trial, and it was not excepted to at the time. No exception 
was entered against the nonsuit or default until the bill of 
exceptions was prepared. 

On the hearing of the motion for a new trial, on April 6» 
1901, the appellant, through her attorneys, moved to dis- 
qualify the judge from hearing said motion. In the affidavit 
in support of this last motion, the only additional ground 
why the said judge should not act in the case was, that he had 
beeoi the attorney for Clark McChesney, as special administra- 
tor of the estate of said Kasson. McChesney filed an affidavit 
that he never was so employed nor had acted as his attorney 
in any action or proceeding. And the judge, asking permis- 
sion so to do, stated that he was never employed nor acted 
as attorney in the case, nor had any interest in it as attorney 
for McChesney, nor had been consulted by him in any man- 
ner. The judge was therefore not disqualified under the 



Nov. 1903.] Pboplb v. Gat. 41 

statute, not having been attorney or counsel for the party in 
the action or proceeding. (Code Civ. Proc., sec. 170.) But, 
as respondent suggests, the affidavits under consideration were 
not served within the time prescribed by the code, and should 
not be considered. The notice of intention to move for a new 
trial was filed December 24, 1900. The affidavits therefore 
were not filed within the time prescribed by the code, — to 
wit, within ten days after said notice. (Code Civ. Proc, sec. 
659, subd. 1.) 
The order appealed from is affirmed 

Shaw, J., and Angdlotti, J., eonoorred. 



[L. A. No. 1150. Department Two. — ^NoTember 4, 1908.] 

THE PEOPLE, Respondent, v. HENRY C. GAY et al.. De- 
fendants; MARY E. CANTY, Assignee, Appellant. 

JUDOliSNT FOBXOLOSINa GEBTinOATX 09 PURCHASE — ^MOTION OF AS* 

siOKEB TO Vacate— Appeal — ^Ajtwdayit not Paet or Bboobd— Prjb- 
SUMFTiON. — ^Upon appeal from an order denying the motion of an 
assignee of a certificate of purchase of school land to T&cate a 
judgment foreclosing the certificate of purchase, for a defective 
affidavit for publication of summons, where the only proof that she 
iras such assignee is an affidavit not embodied in any bill of ex- 
ceptions, but merely certified l^ the clerk, the affidavit is no part 
of the record, and cannot be considered for any purpose. There 
being nothing in this court to show that appellant was a party 
aggrieved, or had any interest in the controversy, or any right to 
make the motion, it must be presumed the motion was properly de- 
nied. 

APPEAL from an order of the Superior Court of Santa 
Barbara County denying a motion to vacate a judgment 
W. B, Cope, Judge. 

The facts are stated in the opinion. 

F. D. Brandon, and C. F. Carrier, for Apx>ellant 



42 People v. Gat. [141 Cal. 

Tirey L. Ford, Attorney-General, and B. W, Squier, Dis- 
trict Attorney, for Respondent. 

GRAY, C. — Thijs is an action brought by the state against 
the holder of a certificate of purchase of certain school land 
in Santa Barbara C!ounty to foreclose his right and title 
therein for non-payment of interest thereon. 

The sununons was published and judgment thereafter en- 
tered for plaintiff July 9, 1896. In 1901 Mary E. Canty 
seems to have moved the court to set amde the judgment be- 
cause of a defective affidavit for publication of the summons. 
The court denied the motion, and Mary E. Canty appeals. 
The appellant was not a party to the suit or judgment of 
which she complains. There is, however, printed in the tran- 
script an affidavit showing that she is by deed the successor 
in interest to the rights of the defendant Gay in and to the 
land in question. This affidavit is not included in any bill 
of exceptions, nor is it certified in any way except by a cer- 
tificate of the clerk of the trial court. It cannot therefore 
be considered upon this appeal for any purpose. (Rule 
XXIX of supreme court; Melde v. Reynolds, 120 Cal. 234.) 
This leaves nothing before us to show that appellant was a 
party aggrieved, or had any interest in the controversy, or 
any right to make the motion. We must therefore presume 
that the trial court properly denied the motion. 

We advise that the order appealed from be affirmed. 

Haynes, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the order 
appealed from is affirmed. 

McFarland, J^ Lorigan, J^ Henshaw, J. 



Nov. 1903.] Patebson v. Ogdsn. 48 



[Sac. No. 922. Department Two. — ^Noyember 4, 1903.] 

DAVID PATEBSON et al., Appellants, v. B. A. OGDEN 
et al., Respondents. 

PuBuo Lands — ^AoBiouLfruEAL Paibnt— Chabaoter oi' Land— Ajektodi- 

CATION — COLLATERAIi ATTACK BT MnnNO CLAIICANT — ACTION TO 

Quiet Title. — ^A United States patent for agrieoltnral land is an 
adjudication by a tribunal baving jurisdietion tbat tbe lands were 
agricultural and not mineral in character, and a mining claimant 
who did not appear and protest or make any adyerse claim against 
the issuance of the patent cannot collaterally attack the patent in 
an action to quiet his title to the mining claim against the patentee. 
Id. — ^Bbbebvation in Patent — Oonstsuction — ^Bight to Minx. — A 
clause in an agricultural patent making it ''subject to the right 
of a proprietor of a yein or lode to abstract and remoye his ore 
therefrom, should the same be found to penetrate or intersect the 
premises hereby granted, as provided by law,'' if not void, is to be 
properly construed as only permitting the proprietor of a vein 
whose apex lies outside of the land, but which penetrates the land 
on its dip or downward course, to abstract and remove his ore 
therefrom. It does not confer a right to enter and mine upon the 
surface of the patented land. 

APPEAL from a judgment of the Superior Court of Tuo- 
lumne County and from an order denying a new triaL B. C 
Bust, Judge. 

The facts are stated in the opinion of the court 

P. W. Street, for Appellants. 

The appellants by their location, annual work, and ex- 
penditures had acquired a grant from the United States of 
the lands embraced within the Qem Mine, and the ground was 
not afterwards oi>en to sale and patent, or subject to the dis- 
posal of the government. {Wirth v. Branson, 98 U. S. 121; 
Belk V. Meagher, 104 U. S. 279; OwiUim v. Donnellan, 115 
U. S. 45; Noyes v. Mantle, 127 U. S. 348; StMivan v. Iron 
Silver M. Co., 143 U. S. 431 ; Mery v. Brodt, 121 Cal. 332-335 ; 
Lindley on Mines, sec. 539.) Lands in which there are known 
mines are not subject to pre-emption or homestead entry. 
(U. S. Bev. Stats., sees. 2258, 2289; Deffeback v. Hawke, 115 



44 Patbrson v. Ooden. [141 CaL 

U. S. 404; Burfenning v. Chicago By. Co., 163 U. S. 321- 
323.) The government having no title to the land included 
within the Gem Mine at the time of the iasnance of the agri- 
cultural patent, including that mine, the patent was void to 
that extent, and may be collaterally attacked, {Durfee v. 
Plaisted, 38 Cal. 80; Thompson v True, 48 Cal. 601; Ed- 
wards V. Rolley, 96 Cal. 408 ;i Klauher v. Higgins, 117 Cal. 
451-464 ; Cucamonga Fruit and Land Co. v. Moir, 83 Cal. 101 ; 
Dolan V. Carr, 125 U. S. 618, 624; Oerrard v. SUver Peak 
Min. Co., 82 Fed. 578-583.) 

J. P. O'Brien, for Respondents. 

All parties were bound to take notice of the application for 
the agricultural patent, of which public notice was given, 
and to file any adverse claims thereto. {Wight v. Dubois, 
21 Fed. 695; Bichards v. Wol fling, 98 Cal. 195.) The patent 
was a conclusive adjudication as to the character of the land 
patented, which is not open to contestation in any collateral 
proceeding. {Doll v. Header, 16 Cal. 297; Oale v. Best, 78 
Cal. 235;* Irvine v. Tarbat, 105 Cal. 237; Dreyfus v. Badger, 
108 Cal. 58; 1 Lindley on Mines, sec. 208, p. 253; Saunders 
V. La Purissima Oold Min. Co., 125 Cal, 159.) Merely by 
virtue of plaintiff's location and option to purchase not exer- 
cised, the government did not part with its title. {Forbes 
V. Oracey, 94 U. S. 762; Black v. Elkhom Min. Co., 163 
U. S. 449.) 

McFARLAND, J. — ^This is an action to quiet title to an 
alleged quartz-mining claim called the Oem Mine. Judgment 
was for defendants, and plaintiffs appeal from the judgment 
and from an order denying their motion for a new trial. 

The contest is only about that part of the alleged Oem 
Mine which lies in the west half of the southwest quarter of 
section 3, township 2 north, range 14 east, M. D. M. On 
November 2, 1881, respondents' predecessor in interest, John 
McNamee, made homestead entry as agricultural land at the 
United States land office at Stockton, California, of land 
which includes the west half of the southwest quarter above 
mentioned. On February 5, 1889, he conmiuted the said 
homestead entry to cash entry No. 9753, and paid the United 
States government therefor; and on November 24, 1890, the 



ISI Am, St. Bop. 234. S12 Am. St Bep. 44. 



Nov. 1903.] Patebson v. OaDEN*. 45 

goyemment issued to him a patent for saia land. After the 
said homestead entry, and after the land had been returned 
by the United States surveyor-general as agricultural land, 
J. N. Paterson, appellants' predecessor in interest, located 
what is called the Oem Mine. At the time when McNamee 
made his final proofs no protest or adverse claim was made 
by Paterson, or any other person. 

It is well settled that issuance of a United States patent 
for land as agricultural in character is a judgment by a 
tribunal having jurisdiction that such is the character of the 
land, which cannot afterwards be collaterally attacked. {Oale 
V. Best, 78 Cal. 235,^ and Saunders v. La Purissima Gold 
Mining Co., 125 Cal. 159, and the authorities cited in those 
two cases ; also Richards v. Wolfling, 98 Cal. 195, and Wright 
V. Dubois, 21 Fed. 695.) The patent, therefore, conveyed 
the land to McNamee, and was an adverse adjudication of 
any asserted right of appellants' grantor to the land as a 
mining claim. In the case at bar the patent to McNamee 
contained the following clause: ''Subject to the right of a 
proprietor of a vein or lode to abstract and remove his ore 
therefrom, should the same be found to penetrate or intersect 
the premises hereby granted as provided by law." We have 
not been referred to any law authorizing the insertion of 
this clause; and it was held in CoweU v. Lammers (10 Saw. 
246), 21 Fed. 200, that a reservation of mineral land in an 
agricultural patent is void. But waiving that question, the 
court below in the case at bar correctly construed the clause 
as only subjecting the patented land ''to the right of the 
proprietor of a vein or lode, the top or apex of which lies 
outside of the west half of the southwest quarter of section 3 
aforesaid, but which penetrates into the land on its dip or 
downward course, to abstract and remove his ore therefrom 
as provided by law." It does not give any right to enter and 
mine upon the surface within the patented lands. These 
views make it unnecessary to consider the express finding 
that at the time of the patent no part of the lands was 
"knovm valuable mineral land, but on the contrary all of the 
lands embraced within the west half of the southwest quarter 
of said section 3 were at that time, and now are, agricultural 
lands." 



112 Am. St Bep. 44. 



46 Pool v. Bxttlbr. [141 CaL 

In answer to the claim by appellants of title under the 
statute of limitations by adverse possession since the date of 
the patent, the court finds ezprefisly that there was no such 
adverse possession; and the evidence is clearly sufficient to 
support that finding, irrespective of the further finding that 
appellants had not paid any of the taxes levied on any part 
of said land. The above views dispose of the controlling 
questions in the case adversely to appellants' contention; and 
there are no other points necessary to be noticed. 

The judgment and order appealed from are affirmed. 

Lorigan J., and Henshaw, J., eoneorred. 



[Sae. No. 1081. Department One. — November 5, 1903.] 

D. C. POOL et al., Respondents, v. WILLIAM BUTLER, 
and GEORGE SIMMONS, Administrators, etc.. Appel- 
lants. 

Action to Condemn Land — ^Plaintut not Bound to Tasz. — ^A plain- 
tiff, by bringing an action to condemn land for a public use, does 
not bind himself to take the land and pay the compensation fixed 
by the conrt or jury. 

Id. — ^Unaccepted Deposit — Tender — Appeal prom Decree — Abandon- 
ment OF Enterprise — ^Withdrawal of Deposit. — ^Where a deposit 
of the compensation fixed was made with the clerk but was not 
accepted, it amounted to no more than a tender; and where the 
defendants by motion for a new trial and appeal sought to reverse 
the entire decree, and thereby effected a long delay, the plaintiffs 
had the right, before the defendants were willing to accept the de- 
posit, or were in a position to demand it, after affirmance of the 
judgment upon appeal, to abandon the enterprise and withdraw the 
deposit except as to costs. 

Id. — Notice Pending Appeal— Dismissal of Action — Order after Af- 
firmance. — ^Where the defendants were notified before the judg- 
ment became final by affirmance upon appeal, that the plaintiffs 
would not take the property, and would move immediately upon the 
filing of the remittitur to vacate the judgment and dismiss the ac- 
tion, an order dismissing the action pursuant to such notice and 
motion will be affirmed upon appeal therefrom. 



Nov. 1903.] Pool v. Butler. 47 

APPEAL from an order of the Superior Court of Yolo 
County dismissing an action. E. E. Gaddis, Judge. 

The facts are stated on the opinion. 

B. Clark, and G. Qark, for Appellants, 

On payment, or tender of payment, the right to discontinue 
ceases. {Merrick v. Mayor etc. of Baltimore, 43 Md. 231; 
Chicago v. Barbain, 80 111. 485 ; Los Angeles Ky, Co. v. Rumpp, 
104 Cal. 20, 25; 6 Am. & Eng. Ency. of Law, 634; Randolph 
on Eminent Domain, 181; Denver etc. By. Co. v. Lamborn, 
8 Colo. 380.) He who pays money into court loses all control 
over it. (25 Am. & Eng. Ency. of Law, 943.) The money 
is paid into court for the owner. (Const., art. I, sec. 11; 
Code Civ. Proc, sees. 1251, 1252, 1253; Callahan v. Dunn, 
78 Cal. 370; Olenn County v. Johnson, 129 Cal. 408.) 

Hudson Grant, for Respondents. 

The action for condemnation may be withdrawn where the 
land has not been taken nor paid for. (Lamb v. Schottler, 
54 Cal. 319; Lewis on Eminent Domain, sees. 541, 656; 
O'Neill V. Freeholders of Hudson, 41 N. J. L. 161 ; Chicago v. 
Barbain, 80 111. 402; Chicago v. Shepard, 8 HI. App. 602; 
Denver etc. By. Co. v. Lamborn, 8 Colo. 380 ; Land and Canal 
Co. V. Hartman, 17 Colo. 141.) 

HAYNE3, C. — ^This appeal is from an order dismissing the 
action, made upon plaintiffs' motion. The action was to con- 
demn a strip of land 60 x 145 feet, for a ferry-landing on the 
Sacramento River, in Yolo County. There was a prior ap- 
peal from the judgment condemning the land for said pur- 
pose in which the judgment was afBrmed (reported in 134 
Cal. 621, entitled Pool v. Simmons). In that case the trial 
court gave judgment to the plaintiff, condemning the land 
to the burden of an easement for the proposed ferry-landing, 
and assessing the damages at $285. The defendants upon the 
trial reserved several exceptions, and moved the court for a 
new trial upon all the issues, and the motion was denied. 
Thereupon said former appeal was taken from the judgment 
and from the order denying a new trial. Both the motion for 



48 Pool v. Butler. [141 Cal. 

a new trial and the appeal presented several questions relat- 
ing to the regularity and validity of the proceedings and 
judgment, as well as the amount of damages awarded. The 
plaintiff deposited with the clerk the said sum of $285 and 
costs, within thirty days after the entry of the judgment. 
The defendants did not accept the money so deposited, but 
took and perfected their appeal, and did not abandon all 
defenses except for greater compensation, and could not de- 
mand or obtain the money until the appeal should be deter- 
mined. Section 1254 of the Code of Civil Procedure provides, 
among other things, as follows : — 

''The defendant who is entitled to the said money paid 
into court as aforesaid, or upon any judgment in such pro- 
ceedings, shall be entitled to demand and receive the same at 
any time thereafter upon obtaining an order therefor from 
the court.'* 

No such order was asked for by defendants. They could 
not get it without abandoning bH the defenses they had 
to the action, except as to the sufficiency of the damages 
awarded; and such other defenses were not abandoned, but 
were pressed upon the motion for new trial, and in this court 
upon the appeal. If they had applied to the court for an 
order directing the clerk to pay over the money, it could not 
have been granted pending the motion for a new trial, or at 
any time after the appeal was taken until the judgment was 
affirmed or the appeal dismissed. The court had no power 
to make the requisite order for the payment of the money, 
the judgment having been suspended by the appeal, which was 
a refusal to accept the money, or to treat the judgment as 
a final determination of the rights of the parties, though it 
was in form final. Judgment in the court below was entered 
June 21, 1898, and th« appeal was decided December 3, 1901, 
and became final January 2, 1902, a period of three and a 
half years after judgment in the court below. Such delay may 
have furnished in this case, and might in many others, suf- 
ficient reasons for an abandonment of the enterprise. During 
all that time defendants were protesting against the judg- 
ment, and when plaintifb finally relieved them from what 
they insisted was a wrong, oppressive, and erroneous judg- 
ment by dismissing the proceeding, now appeal from the order 



Not. 1903.] Pool v. Butlbb. 49 

rdievizig them from it The ultimate question, however, is 
whether the court erred in dismissing the action. 

The proceeding in eminent domain is an exercise of the 
sovereign power of the state, though the state does not appear 
upon the face of the record as a party. The owner of the 
land sought to be appropriated to a public use may volunta- 
rily agree with the agent of the state as to price, and convoy 
it to the person or corporation who may desire it for a public 
use, but in the proceeding under the statute there is no de- 
ment of contract. It is an adversary proceeding wherein the 
state appropriates the use of the land to the public, subject 
only to tiie requirement of the constitution that the land shall 
not be taken or damaged for public use without just com- 
pensation having been first made or paid into court for the 
owner. (Const, art I, sec. 14.) But a plaintiff seeking to 
condemn land for a public use does not, by bringing the action 
to condemn, bind himself to take the land and pay the com- 
pensation fixed by the court or jury, since it may be so great 
as to make the proposed use impossible, or the delay in ob- 
taining the right to use the land for the purpose intended 
may permit another to acquire a competitive use of other 
lands for the same purpose, and thus make his use undesirable, 
even if the compensation were reasonable. Hence a plaintiff 
in such action is conceded to have a right to abandon the 
proceeding and decline to take the land, the question then 
being, at what stage of the condemnation proceedings may he 
abandon the enterprise or decline to take the property! 
Pending the motion for a new trial, and later, pending tiie 
appeal, it is clear that plaintiiEs were not bound to pay or de- 
posit tlie damages assessed upon the trial; and it is equally 
dear by the motion and the appeal that the defendants re- 
fused to accept payment, at least until they had exhausted 
all their resources to defeat the condemnation, and during 
all that time the plaintifib had the right to abandon the enter- 
prise and refuse to pay the compensation assessed by the 
court. It is contended, however, that having deposited the 
money with the derk of the court, they could not withdraw it, 
and that upon the affirmance of the appeal the defendants 
were entitled to receive it. I think plaintiSis had the right to 
abandon at any time before the defendants were willing to 
receive it, or were in a position to demand it. Before the 
CXLL OU.— 4 



50 Pool v. Butlbb. [141 Cal. 

former appeal was decided plaintiffs informed defendants 
lit their intention to abandon the establishment of the ferry, 
and that, if the judgment should be affirmed, they would move 
to dismiss the proceeding, and they withdrew the money de- 
posited, except sufficient thereof to pay costs. 

It is contended on behalf of appellants that the right of the 
defendants to the land, or the easement therein, vested in the 
plaintiffs by the deposit with the clerk, and that there can be 
no abandonment by the plaintiffs thereafter. But the deposit, 
I think, under the circumstances, was only a tender, and in 
such cases the money tendered does not vest in the person to 
whom it is tendered unless it is accepted. In this case the de- 
posit was not accepted. The defendants persisted in their 
contention that the judgment was erroneous and invalid, and 
sought to have it reversed, and could hardly contend that the 
money or the right to it was vested in them so long as they 
contended that the plaintiffs had no right to the land. The 
vesting of the title to the deposit in the defendants is coin- 
cident with the vesting of the right to the land for the pur- 
poses for which it was sought, but pending the appeal the 
plaintiffs could assert no right to the land or its use under the 
judgment which >^^d been stayed and suspended by the ap- 
peal, during which time the court was powerless to enforce 
it; nor could the defendant say, **The right to the money 
is vested in us, but you shall not have the land." The title 
to the land does not vest in the plainti£b until ''the final order 
of condemnation" is made by the court, and a copy of the 
order filed in the office of the county recorder, ''and there- 
upon the property described therein shall vest in the plain- 
tiff for the purposes therein specified." (C!ode Civ. Proc, 
sec 1253.) Counsel for appellants cites Los Angeles Ry. Co, 
V. Rumpp, 104 Cal. 20, to tiie proposition that the appeal to 
the supreme court gave no right to withdraw the money. But 
that case and this are materially different There the plain- 
tiff paid the money into court, and it was paid over to the 
defendant, who filed her abandonment of all defenses except 
''her claim for greater compensation," and as to that claim 
she appealed, and the plaintiff took possession of the land 
and constructed its road over it. The judgment, except as 
to the amount of damages, was accepted by the defendant 
and remained in force ; and it was upon this state of the facts 



Nov. 1903.] Pool v. Butueb. 51 

that the court said, **Upon the payment of the money plain- 
tiff acquired a vested right in the property, and the defendant 
a vested right in the compensation/' and it was held ''that 
the appeal of defendant, accompanied by her abandonment 
of other defenses, did not, as in ordinary cases, vacate the 
judgment." Here, the defendants not having abandoned 
all defenses except their claim for greater compensation, the 
entire judgment was suspended, and they did not, nor could 
not, demand the money deposited by the plaintiffs, nor could 
the court make any order for its payment to defendants until 
after the afBrmance of the judgment by the appellate court. 
**In the nature of things, this provision for payment cannot 
apply to the claim of a defendant for unliquidated damages 
thereto, if the land be not finally taken. As to such claim the 
money is not paid into court for the defendant, but as security 
only." {Steinhari v. Superior Court, 137 Cal. 575, 576.*) 
In the same case (p. 579), it was further said: ''I do not 
agree to the proposition that compensation is made to the 
owner by paying into court a sum of money before the dam- 
age has been judicially determined and when the property- 
owner cannot take the money. ... It is not paid into court 
for him until he can take it" In the face of the appeal as 
taken, they could not know that they could ever acquire 
the right to appropriate it, and were not bound to keep the 
deposit good, and the withdrawal of it was evidence of an 
abandonment, which was made more explicit by informing de- 
fendants, the appellants in that case, that they desired to dis- 
miss the action and abandon the establishment of the proposed 
ferry, and oflfered to pay the defendants' costs in the trial 
court and one half of the costs on appeal, provided the appeal 
be then dismissed; which offer was refused, and the defend- 
ants were then notified that whatever the judgment of the 
supreme court might be plaintiffs would, upon the filing of 
the remiiiitur, move the court to vacate the judgment and 
dismiss the action, and this motion was promptly made, and 
the defendants (appellants here) made a counter-motion to 
proceed in said cause and enter an order of final condemna- 
tion, and the two motions were heard at the same time. Plain- 
tiffs put in evidence the judgment-roll of the original judg- 
ment from which said appeal was taken showing facts herein- 



192 Am. St Bep. 183. 



52 Pool v, Butlbb. [141 C«L 

' '■■ III I ■ III ■ i—iiiii II 11^ 

before stated, and gave parol evidence of other facts which 
have also been stated. 

As to the time when, or within which, the plaintiff in con- 
demnation proceedings may abandon them and decline to 
take the property, there is a conflict in the authorities; but 
this conflict relates to the time of abandonment and not to 
the right to abandon where the statute is silent upon the sub- 
ject. The constitutional as well as the statutory law upon 
this subject assumes that the owner of the land is unwilling 
that it shall be taken for the proposed use, and the provisions 
of the statute are framed to prevent it from being taken or 
damaged without just compensation, and not with the view 
or for the purpose of enabling the owner to speculate upon 
the supposed necessities of the plaintiff or the public by 
appeals which not only involve the amount of compensation, 
but set at large the question whether he had a right to con- 
demn the land at all. Lewis, in his work on Eminent Do- 
main (sec. 656), says: ''The weight of authority is, that 
in the absence of statutory provisions on the question, the 
effect of proceedings for condemnation is simply to fix the 
price at which the party condemning can take the property 
sought, and that even after confirmation or judgment the 
purpose of taking the property may be abandoned without 
incurring any liability to pay the judgment awarded." 

The author cites in support of the foregoing quotation a 
very large number of cases from many different states; and 
later in the section, after citing cases from New York and 
Nebraska, says: ''These cases from New York and Nebraska 
are, we believe, the only ones which are contrary to the doo* 
trine stated at the beginning of the section.'' 

In Dillon's Municipal Corporations (4th ed., see. 608) the 
learned author says: "Under the language by which the 
power to open streets and to take private property for that 
purpose is usually conferred upon municipal corporations, 
they may at any time before taking possession of the property 
under completed proceedings, or before the final confirma- 
tion, recede from or discontinue the proceedings they have 
instituted. This may be done, unless it is otherwise provided 



Nov. 1903.] Pool v. Butueb. 58 

by legislative enactment, at any time before vested rights in 
others have attached.'^ 

This section is cited and approved in O'Neill v. Freeholders 
of Hudson, 41 N. J. L. 161, 172, in a well-considered opinion 
by Chief Justice Beasley. (See, also, Oraff v. Mayor etc. of 
Baltimore, 10 Md. 544; State v. C. and T. R. R. Co., 17 Ohio 
St. 103.) In Chicago etc. Co. v. Chicago, 143 111. 641, it wafl 
held: '^A monicipal corporation seeking to condemn real 
estate for public use may, after the assessment of damages 
and judgment of condemnation, abandon the enterprise in 
aid of which the condemnation is sought, and unless, within 
a reasonable time, the damages are paid and possession taken 
of the property condemned, the proceeding will be regarded 
as abandoned" To the same effect is Bensley v. Mountain 
Lake Water Co., 13 Cal. 307, 817.* In St. Louis etc. R. R. Co. 
V. Teters, 68 111. 144, 150, it was said: ** Where the company 
has not appropriated the land at the time of the trial, it would 
be improper to render a judgment for the recovery of the 
money, or to award execution, because it could not be known 
that the company will ever enter upon the land. It is, under 
the statiiti* the payment of the money found by the jury, 
and not the order of the court alone, that confers the right. 
Although the petition has been filed, the damages assessed, 
and the order of the court pronounced and entered, the money 
must be paid before the right to enter attaches, and until 
they pay the damages they have the right to abandon the 
location of the route thus made, and adopt some other. Hence, 
it is improper to render a judgment of recovery or award 
execution, unless the jury find, or it conclusively appears from 
the record, that the company has entered and is in possession 
of the land sought to be condemned." In this case the de- 
fendants were notified before the judgment became final by 
its affirmance on appeal that they would not take the property, 
and would move to dismiss the action. Defendants cannot 
complain if while they were making every effort to destroy 
the judgment by a reversal, the plaintiffs should abandon the 
enterprise and withdraw a deposit the defendants refused to 
accept ; and especially must this be true where the motion for 



1 78 Am. Dee. 575. 



54 Pool v. Butlbr. [Ul Cal 

a new trial and appeal, both and each, denied and contested 
to the end the right of plaintiffs to condemn the land for the 
purposes alleged. Justice requires that where possession has 
not been taken, and the purpose for which condemnation was 
sought has been abandoned, that the award of damages should 
not be enforced, especially where the defendants have pre- 
vented for an unreasonable time the accomplishment of the 
purpose. The greatest right the plaintiffs could secure in 
this proceeding was simply an easement for a specific purpose. 
Having abandoned the construction of a ferry, the plaintiffs 
could not convert it to another use, but the land, unencum- 
bered by any use by the plaintiffs, would remain the property 
of the defendants. If the dismissal of the action has injured 
the defendants, it is obvious that the value of the land which 
has not been taken, and the injury to other lands which would 
have been injured if the ferry had been established are not the 
measure of their damages, while a reversal of the order dis- 
missing the proceeding would have the effect of a judgment 
therefor. It may be that the question of dismissal is a matter 
within the discretion of the court, but, if so, it is clear 
there has been no abuse of discretion in this case. 
I advise that the order dismissing said action be affbmed. 

Gray, C, concurred. 

For the reasons given in the foregoing opinion the order 
dismissing said action is affirmed. 

Angellottiy J^ Van Dyke, J^ Shaw, J. 



Nov. 1903.] Woods v. Diepenbrock. 55 



[8ae. No. 983. Department Two. — November 5, 1903.] 

S. D. WOODS et al., Appellants, v. M. DIEPENBROCK 
et al.y Bespondents. 

DismssAL OF Action — Afpeax upon Judohsnt-Boll — Pebsumption — 
Want of Prosbcdtion. — Upon appeal from a judgment dismissing 
an action taken upon the judgment-roll alone, without any bill of 
ezceptionsi every intendment is in favor of the judgment; and in 
the absence of any aflrmative showing to the contrary, it will be 
presumed that the dismissal was ordered on some good ground, and 
in conformity with the rules of law. Where the record permits, a 
reasonable inference will be indulged that the dismissal was for 
failure to prosecute the action with reasonable diligence. 

APPEAL from a judgment of the Superior Court of San 
Joaquin County. J. W. Hughes, Judge. 

The facts are stated in the opinion of the court 

Woods & Levinsky, and Bruner & Bros., for Appellants. 

B. Platnauer, and A. L. Shinn, for Respondents. 

LORIGAN, J. — This is an appeal from a judgment dismiss- 
ing the action, and is taken wpon the judgment-roll alone. 
There is no bill of exceptions ; hence we are not advised upon 
which particular ground the lower court ordered the dismis- 
sal. The judgment recites that '*The court, after hearing the 
evidence adduced . . . and good cause appearing therefor, it 
is ordered that said motion be and the same is hereby 
granted." 

Upon appeal every intendment is in favor of the validity 
of the judgment appealed from, and it is incumbent upon the 
party assailing it to show affirmatively that it is erroneous. 
Nothing towards that end appears in the record. 

The superior court has power to dismiss an action upon 
several grounds (Code Civ, Proc, sec. 581), and it will be 
presumed, in the absence of any showing to the contrary, 
that the dismissal was ordered on some good ground, and that 
in ordering it the court properly exercised its power in con- 
formity with the rules of law. {Pardy v. Montgomery, 77 



56 Donnelly v, Bebi (141 CSaL 

Gal. 326.) One of the grounds upon which the lower eoort 
18 anthorued to dismiss an action is for failure to proseeate it 
with reasonable diligence, and from the record in this case a 
reasonable inference can be indulged in that it was for 
this reason the action was dismissed. 

The judgment appealed from is afSrmed. 

McFaiiandy J., and Henshaw, J., ooncurredL 

Hearing in Bank denied. 



[L. A. No. 1129. Department Two.— Norember 6, 1908.] 

WINIFBED KBAN DONNELLY, R^pondent, v. D. W. 
BEES, and THOMAS O'BRIEN, AppeUants. 

AonoN BT Hm to Sit Asidb Deed— FaiiuD and UMDim iNrunofOB 
UPON Habztual Dbttnkabd. — An action nut/ be maintained hf the 
sole heir of a deeeased person to set aside a deed proeared from 
the deceased without consideration by the fraudulent practieee of 
the defendants and their undue influence over the deceased^ who 
was known to be an habitual drunkard for more than flre years 
before the execntion of the deed, to an extent teriouafy to impair 
his mind, and who was so intoxicated at the time as to render him 
unfit to transact business, and entirely incapable of realising, under- 
standing, or attending to the transaction. 

Id. — ^EVOBNGB— DSOLA&ATION OF GEAJ9TOB^-SnJD7GI OF DxrEHDAMTB. — 

In such action a declaration of the grantor made in an affidavit in 
an attachment suit brought by his creditor, to the effect that the 
deed was not sham, or without consideration^ or in frand of cred- 
itors, was admissible, but not conclusiye on the court; and where 
the affidavit was made in the presence of the defendants, and alluded 
to "a contemporaneous writing executed" by them, of which they 
say nothing in their testimony, their alienee is a significant eireom- 
stance against them. 

Id. — ^IirvoLUNTABY Tbubt^-Conbtbuotion of Oosb. — ^Where it appears 
that the defendants gained the land Yxj actual fraud, and also by 
undue influence, and by the violation of an assumed trust, they are, 
imder section 2224 of the Civil Code, involuntary trustees of the 
thing gained as against the heirs of the deceased grantor. 

Id.— Fbaud upon GktXDiTMS— Oxnblal Bdu Inappuoabu.— The gen- 
eral rule that a eoort of equity wiH not grant rdief to one who 



Nov. 1903.] Donnelly v. Rees. 57 

hu made a deed to defraad erediton has no application where the 
deed was procured by fraud or undue influence of the defendants, 
who will not be allowed to perpetrate a greater fraud, and to take 
advantage of their own wrong and of the absence of free consent 
of the grantor, and who, under express statutory provision, take as 
trustees of the grantor. 

Id. — ^EviDKNOE — Habits and Condition of Grantor. — ^The objection 
that evidence was allowed as to the drunken habits and condition of 
the grantor, at periods from seventeen to twelve years prior to the 
date of the transaction, goes rather to the weight than to the ad- 
missibility of the testimony. 

Id. — ^AcnoN to Bniorce Trust— Rescission not Involved. — In an ac- 
tion to enforce an involuntary trust in favor of an heir of the de- 
ceased frrantor, the objection that the grantor did not resdnd 
promptly is untenable. « 

Id. — Charges not Connected with Transaction — ^Pathsnts not Re- 
quired. — The plaintiff was not required to make any payments on 
account of an alleged bill against the grantor, or for moneys alleged 
to have been advanced to him subsequently to the alleged transac- 
tion, where these matters cannot be regarded as connected with the 
transaction. 

APPEAL from a judgment of the Superior Court of San 
Bernardino County RnZ from an order denying a new trial. 
John L. Campbell, Judge. 

The facts are stated in the opinion. 

B. F. Del Valle, and M. E. C. Munday, for AppellantB. 

Heirs cannot attack a deed ^ecuted to defraud creditors. 
(Reichart v. Castaior, 5 Binn. 109;^ TerreU's Heirs v. 
Cropper, 9 Martin, 350;* Davis v. Swanson, 54 Ala. 277.*) 
Mere ordinary drunkenness will not avoid a deed or contract. 
{Pickett V. Sutter, 5 Cal. 412 : Carender v. Waddington, 5 Mo. 
App. 457; Mansfield v. Watson, 2 Iowa, 111; Belcher v. Bel- 
cher, 10 Yerg. 121 ; Harbison v. Lemon, 3 Blackf . 51 ;* Taylor 
V. PurceU, 60 Ark. 606; Henry v. Ritenour, 31 Ind. 136; 
Loftus V. Malony, 89 Va. 576 ; Johis v. Fritchey, 29 Md. 258; 
Bates V. BdU, 72 111. lOS.) Prompt rescission and restitution 
of consideration was necessary to avoid the deed, which may 



16 Am. Dec. 402. t25 Am. Bep. 678. 

>18 Am. Dee. 809. «» Am. Dee. 876. 



58 DoNKELLY t;. Rees. [141 CaL 

be ratified when sold. {Joest v. Williams, 42 Md. 565;^ 
Carpenter v. Rogers, 61 Mich. 384;* Waiiams v. Walnek, 1 
Bail. 343; Eaton v. Perry, 29 Mo. 96; Smith v. WtUiamson, 
8 Utah, 219.) 

H. C. Bolfe, and Crawford & Clarke, for Respondent 

The parties were not in pari delicto, and the defendants 
are chargeable as being gailty of the greater fraud, and are 
chargeable in equity. {Copeland v. Lang, (Tenn.) 41 S. W. 
866, 872; Ford v. Harrington, 16 N. Y. 162; Osbom v. WU 
liams, 18 Ves. 379; Pinckstan v. Brown, 3 Jones Bq. 494; 
Phalen v. Clarke, 19 Conn. 420; Freelove v. Cole, 41 Barb. 
318; Bailee's Executor v. Bailee, (18 Ky. Law Rep. 74) 
35 S. W. 437; Long v. Long, 9 Md. 348; Boyd v. Montagnie, 
73 N. Y. 498 ;• Boston v. Balch, 69 Mo. 115; Davies v. 0«y, 
35 Beav. 208; Rozell v. Van Sycle, 11 Wash. 79; Harper v 
Harper, 85 Ky. 100.) Rescission was not required. That is 
only one of the remedies the defrauded party may resort to. 
{More V. More, 133 Cal. 489; Field v. Austin, 31 Cal. 379; 
1 Perry on Trusts, sec. 166; 2 Pomeroy's Equity Jurispru- 
dence, sees. 1044, 1045, 1055; Civ. Code, sec. 2224.) 

SMITH, C. — Appeal from a judgment for the plaintiflf and 
from an order denying the defendants' motion for a new trial. 
The plaintiff is the daughter and sole heir of Patrick Eean, 
and brings this suit to set aside, as fraudulently obtained, 
a deed made by her father to the defendant — of date Novem- 
ber 15, 1897. The land conveyed was an undivided half of 
certain mines owned by the former, and, it is found, was of 
the value of ten thousand dollars. The material questions 
in the case are presented by the second finding of the court, 
which is as follows: — 

**That on the fifteenth day of November, 1897, and while 
said Patrick H. Kean was the owner of the half interest in 
the mining claims described and referred to in the complaint, 
the defendants fraudulently, and without any consideration, 
and by arts and importunities and by greater force of charac- 
ter and ascendency over the mind of said Patrick H. Eean, 



lis Am. Bep. 877. «29 Am. Rep. 197. 

«1 Am. St. Rep. 595, 



Nov. 1903.] Donnelly v. Rebs. 59 

procured from him the deed of conveyance and transfer to 
them set out and described in the complaint, which deed was 
made while the said Kean was in a condition of intoxication 
and drunken imbecility and very weak in mind from the ef- 
fects of the excessive drinking of intoxicating liquors to such 
an extent as to render him unfit to transact business and en- 
tirely incapable of properly realizing and understanding or at- 
tending to the said transaction. And for more than five years 
immediately before the making of said deed, the said Kean 
had been and was an habitual drunkard and constantly under 
the influence of the excessive drinking of intoxicating liquors, 
which were injurious to his mind so as to make him an easy 
prey to the arts and schemes of the defendants, which they 
exercised over him to induce him to execute said deed, and 
but for which he would not have done it." 

Hence, rearranging the order of the findings, and stating 
merely their effect, the case presented may be briefly stated in 
four propositions, to wit: 1. For five years before the execu- 
tion of the deed Kean had been an habitual drunkard to an 
extent seriously to impair his mind, and such as ''to make him 
an easy prey to the arts and schemes" of defendants or other 
designing people ; 2. He was in such a condition of drunken- 
ness when he made the deed ''as to render him unfit to 
transact business, and entirely incapable of realizing and 
understanding or attending to the said transaction"; 3. The 
deed was without consideration; and 4. It was procured by 
the fraudulent practices of the defendants, or, in the terms 
used in the findings, it was fraudulently procured by "the arts 
and importunities" or "arts and schemes" of the defendants, 
and by undue influence exercised over the grantor by them. 

It is necessary only to consider the evidence bearing on the 
last finding, which consists of the facts found in the first, 
second, and third — all of which tend strongly to support it — 
and the testimony of Carroll; which is to the effect that the 
day before the transaction "Kean was speaking of transfer- 
ring his mine for the purpose of evading" an anticipated 
attachment by one Monaghan (to whom it appears he was in- 
debted in the sum of about one hundred dollars), and wanted 
him or his wife to accept the deed, which they declined to do. 
Thereupon the defendant Bees, who was present, asked Kean 
to make the transfer to him ; and Kean consenting, a deed was 



60 DoNNSLLT V. Rbbs. [141 Cal. 

drawu up by the witness and executed by Kean, but, by reason 
of Kean's determining to put in another grantee with Rees, 
was not delivered. The parties then separated, and the de- 
fendant O'Brien, having been informed of the facts, told the 
witness he would like to get his name in the deed, and asked 
him *'to use [his] influence with Kean to that end" In com- 
pliance with this request, the deed was drawn up by Carroll, 
who says he spoke to Kean about it, and used his influenoe to 
procure its execution, and the deed was accordingly executed 
The defendants, the witness further testified, ''both said they 
would return the property to Kean as soon as he was out of 
the woods," etc. But after the deed had been executed, he 
says, ''They laughed; they said that was the last of the mine 
so far as Kean was concerned," etc. Carroll further testifies 
that Kean was drinking with the defendants during the trans- 
action, and "three or four times" on the invitation of O'Brien ; 
which, in view of Kean 's general condition, and of his condi- 
tion at the particular time, may have been regarded by the 
court as significant of fraudulent intent, and if the court so 
regarded it we cannot say it was not justified in doing so. 

The defendants' account of the matter is somewhat differ- 
ent, but in view of the findings of the court need not be con- 
sidered. The same observation is true of Kean's own declara- 
tion made in an affidavit in the Monaghan case, to the effect 
that the deed was not sham, or without consideration, op in 
fraud of creditors. This was admissible in evidence (Code 
Civ. Proc, sec. 1853), and if the facts had been doubtful, 
would have been cogent in its effect ; but it was not conclusive 
on the court. It may be observed that this affidavit, which 
was made in the presence of the defendants, alludes to a ^^con- 
temporaneous writing executed by" them, of which th^ say 
nothing in their testimony; which is a significant dream- 
stance. (Code Civ. Proc, sec. 1963, subd. 5.) 

On the facts found, the case comes within several of the pro- 
visions of section 2224 of the Civil Code, which, in view of 
other questions involved in the case, it may be important to 
distinguish: (1) The defendants gained the land by ** fraud** 
— i. e. by actual fraud,— and also (2) by "undue influence,'* 
and are therefore — or, rather, each is "an involuntary trustee 
of the thing gained" ; and (3) the same result follows, because 
they gained the thing by "the violation of a trust." Upon 



Nov. 1903.] DoNKELLY V. Bebs. 61 

either of these principles, therefore, the plaintiff is entitled to 
recover, unless precluded — ^as is contended by the appellants 
— by the fact appearing from the testimony of Carroll, that 
the deed was made to defraud a creditor; with reference 
to which contention it is important to observe that the ground 
of relief under the first and second of the principles referred 
to is fraud and undue influence in procuring the original con- 
veyance {Brison v. Brison, 75 Cal. 527^) ; while under the 
third there is no fraud in the procurement of the instrument, 
but the fraud is one of those consisting "in the fraudulent 
use of instruments entered into upon a mutual confidence of 
the parties," or, in other words, in violation of the trust 
voluntarily assumed in accepting the instrument. (Civ. Code, 
sec. 2219 ; Pierce v. Robinson, 13 Cal. 127 ; Kimball v. Tripp^ 
136 Cal. 634, 635; Knight v. Tripp, 121 CaL 674; Davies v. 
Otiy, 35 Beav. 213.) 

Counsel for the respondent **do not deny the general rule 
that a court of equity will not grant relief to the person who 
has made a deed to [defraud] creditors," and, for the piir- 
poses of the decision, this will be assumed to be the law ; but 
their position is, that the rule has no application to a case like 
the present, where the deed was procured by undue influence 
or fraud of the defendants; and in this contention I think 
they are sustained by the authorities cited by them and 
by others. (Anson on Contracts, 159; Pomeroy's Equity 
Jurisprudence, sees. 403, 942; Wharton on Contracts, sec. 
353, p. 526 ; Pollock on Contracts, 332 ; Bump on Fraudulent 
Conveyances, sec. 436; Broom's Legal Maxims, 701; Story's 
Equity Jurisprudence, sec. 300; 14 Am. & Eng. Ency. of 
Law, 279; Tracy v. Talmage, 14 N. Y. 181;* 8t. Louis R. R. 
Co. V. Terre Haute R. R, Co., 145 U. S. 406, and authorities 
cited; Michaels v. Hain, 78 Hun, 499, 500.) The application 
of the principle is illustrated by the numerous cases cited in 
respondent's brief, and also by the decision of this court in 
the case of Vitoreno v. Corea, 92 Cal. 69, which in principle 
cannot be distinguished from the case at bar. 

The reason of the rule is variously given in the authorities 
eited; and all the reasons given are good. Commonly it is 
said merely that the parties are not in pari delicto — ^the offense 
of the party imposed upon being trivial in comparison with 



17 Am. St Bep. 189. S67 Ahl I>ee. 132, and notiu 



62 DoNimZiLT V. Bees. [141 CaL 

that of the other, who is not only guilty of the fraud common 
to the two, but of a more heinous fraud, in which he alone 
participates. Another statement of the rule is, that it is 
founded on **the necessity of preventing imposition/' or, 
as otherwise expressed, **of preventing the perpetration of 
a greater fraud by the grantee*' (Bump on Fraudulent Con- 
veyances, sec. 436), which is also a weighty consideration. 
For otherwise the rule would in effect hold out a reward to 
designing persons, who would find in its operation a ready 
means of defrauding others; of which the case at bar fur- 
nished an instructive illustration. Again, it is said: ''If the 
superior should be allowed immunity under such circum- 
stances, he would be permitted to take advantage of his own 
wrong*' (14 Am. & Bug. Ency. of Law, 279) ; which would be 
in violation of the fundamental principle of the law embodied 
in the maxim, Nullum commodum capere potest de injuria 
iua propria. (Coke on Littleton, 148b, cited in Broom's Le- 
gal Maxims, 275.) For, it is said, ''No man shall set up his 
own iniquity as a defense, any more than as a cause of ac- 
tion." {Monte fiori v. Montefiori, 1 W. Blackstone, 262, 263.) 
Finally it is said in the Encyclopedia at the place cited: "The 
wrong [in such case] rests chiefly, if not solely, on the super- 
ior, by whom it will be presumed it was contrived, and the in- 
ferior will be regarded as a mere instrument for accomplish- 
ing an end not his own" ; which is in effect to put the rule on 
the ground that in such cases the consent of the party imposed 
on is not free. (Civ. Code, sees. 1567, 1572, 1575.) All 
of these reasons are satisfactory; but it may be observed 
especially that the case here comes clearly within the last, 
which is the narrowest, of the grounds assigned for the rule. 
It may be added that the principle applies a fortiori in this 
ease, where, by express statutory provisions containing no 
qualifying or excepting words, "one who gains a thing by 
fraud . . . [or] undue influence" takes as trustee for the 
grantor. (Civ. Code, sec. 2224.) 

Other points urged by appellants may be briefly disposed 
of. These are, that Kean did not rescind promptly, and that 
it was error to allow testimony as to the habits and con- 
dition of Eean at periods from seventeen to twelve years prior 



Nov. 1903.] SwETT v. Gray. 63 

to the date of the transaction. But the last objection affects 
rather the weight than the admissibility of the testimony 
(Code Civ. Proc, sees. 1832, 1957, 1960, subd. 2); and the 
former contention is also untenable. {More v. More, 133 CaL 
489; Field v. Austin, 131 Cal. 379; Civ. Code, sees. 3406 
et seq.) It was not necessary that the plaintiff should pay 
to the defendants the amount of their alleged bill, or to 
O'Brien the amounts alleged to have been advanced to Kean 
subsequently to the transaction; or that the court should so 
adjudge under the findings — ^which we have held to be sus- 
tained by the evidence. These matters cannot be regarded 
as being connected with the transaction. 

We advise that the judgment and order appealed from be 
affirmed. 

Chipman, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order appealed from are affirmed. 

Henshaw, J., McParland, J., Lorigan, J. 



[L. A. No. 1120. Department Two.— November 6, 1903.] 

NELLIE SWETT, Appellant, v. JOHN A, GRAY, E©. 
spondent. 

Motion for Nrv^r Trial — Amendments of Statement— Curb of Defec- 
tive Specifications — Discretion of Jinxes. — Amendments to the 
statement on motion for new trial to cure defective si>ecifieation8, 
and to embody the question, answer, objection, and ruling in each 
instance as shown by the record, instead of referring to them 
only by number, were properly allowed in the discretion of the 
judge, under section 659 of the Code of Civil Procedure. 

Id. — ^Notice of Motion to Amend — Appellant not Injxtred. — The ap- 
pellant was not injured because not served with notice of the motion 
to amend the statement, if served with notice of the proposed 
amendments, and, being present at the hearing of the motion^ of* 



64 SwBTT V, Gray. [141 CaL 

/ered no further amendments, and did not objeet to tlie matter pro- 
posed to be added, bat merelj objeeted generally to any amendment. 

lb.— AM2NDMXMT8 rSEiLTBD AS PaBT OV STATBIOEIIT— ABSBMOI 07 BX- 

iNaaossMXNT. — ^Where the minntee of the court ihow that the 
amendments to the statement were allowed, and that thej were be- 
fore the eonrt when the motion for a new trial was passed upon, 
and were referred to in the motion, and were considered bj the 
eourt in passing upon the motion, and were treated both by the 
eourt and by the parties as part of the statement, although not re- 
engrossed as would have been proper, no injury was done to appel- 
lant by the amendments, or by failure to embody them in a re- 
engroesed statement, and th^ may be considered as part of the 
statement. 

Ift.— JuBisDicnov TO Dmaioini Moiiok— Psopb BncnnoATiOHS.— 
Where, besides the def ectiTC speeiiKeations sought to be eared \fj 
the allowed amendments, there were other speeiilcations in the en- 
groesed statement amply sufSoient to point out the particulars in 
which it was claimed the court was authorised to grant a new trial, 
the eonrt clearly had jurisdiction to determine the motion. 

Id.— Conditional Obdxb Grantino Nxw Tbial— AcnoM ka SsDuonoN 
— BiMiBSiON or Damaqxs. — ^The court had power in an action for 
seduction to make a conditional order granting a new trial after 
judgment for the plaintiff unless the plaintiff should remit a por- 
tion of the damages. Such order does not necessarily assume that 
the order was made on the ground of passion and prejudice having 
influenced the verdict. 

Id. — Gboundb or Obdkb — OoNTUoriNa Evidbngi. — ^Where the record 
does not disclose the ground of the conditional order granting a new 
trial, it may be sustained upon any ground assigned; and where 
there was conflicting eyidence as to whether the defendant was 
guilty of the seduction charged, as to the previous good character 
of the plaintiff for chastity, truth, and veracity, and as to the 
amount of damages, and there were speciflcations of insuiBciency 
of the evidence to justify the verdict in these respects, it cannot 
be said that the eourt erred in making the order appealed from. 

Id. — SumoiXNOT or Ooxplaint — Nxw Tbial. — ^The question of the 
Buificieney of the complaint cannot be considered on motion for a 
new trial, where there is no appeal from the judgment. 

Id. — ^Appeal vbom Oomditional OBDOb— Bbfubal or Bxmission — ^Ezxa- 
dBX or Option. — ^Where the appellant by appeal from the condi- 
tional order in effect refused to remit any part of the judgment, 
or to abide by the terms of the order, the appeal was an exercise 
of the appellant's option, and this court will not upon affirming the 
order granting a new trial fix any time within which such 
may be made. 



Nov. 1903.] SwBTT V. Gbat. 65 

APPEAL from an order of the Superior Court of River 
side County granting a new trial. Lucien Shaw, Judge pre- 
siding. 

The facts are stated in the opinion* 

Gibson & Gill, for Appellant 

The verdict of the jury should not have been interfered 
with by the judge, the amount not being so grossly excessive 
as to shock the moral sense and raise a presumption of passion 
and prejudice. {WiUon v. Fitch, 41 CaL 363; Howland v. 
Oakland etc. By. Co., 110 CaL 523; Harris v. Zanano, 93 Cal. 
71, 72; Mize v. Hecht, 130 Cal. 630.) The specifications in 
the statement were insufficient to justify the order. {HaU 
V. Susskind, 120 Cal. 559, 566; McLeman v. Wilcox, 126 Cal. 
52; Taylor v. Bell, 128 Cal. 307.) There was no engrossment 
of the amendment allowed, and the statement being unsettled, 
the court had no jurisdiction to determine the motion. (Hart 
V. Burnett, 10 Cal. 65; Warner v. Thomas etc. Works, 105 
Cal. 412; People v. Southern, 118 Cal. 360; Lucas v. Mayor, 
etc., 44 Cal. 210.) 

Kendrick & Knott, John G. North, Byron L. Oliver, Hart- 
ley Shaw, and Byron Waters, for Respondent. 

The order as made was within the discretion of the trial 
court, and the order will be sustained on any ground assigned, 
including insufficiency of evidence. {Domico v. Casasa, 101 
Cal. 413 ; Breckenridge v. Crocker, 68 Cal. 403 ; Nally v. Mc- 
Donald, 77 Cal. 284; Harnett v. Central Pacific R. R. Co., 
78 Cal. 33; Anglo-Nevada etc. Corporation v. Ross, 123 CaL 
522; Mills V. Oregon etc. Co., 102 Cal. 359; Warner v. Thomas 
etc. Works, 105 Cal. 411; In re Martin, 113 Cal. 481; Kauff- 
man v. Maier, 94 Cal. 269.) Overestimate of damages for 
any other cause than passion or prejudice is ground for a 
new trial or reduction of verdict for insufficiency of the evi- 
dence. {Etchar v. Orena, 121 Cal. 270; Dahntz v. Jessup, 
54 Cal. 119 ; Bennett v. Hohro, 72 Cal. 179 ; Doolin v. Omnir 
hus Cable Co., 125 Cal. 144.) The specifications as to in- 
sufficiency of the evidence were sufficient to enable the 
adverse party to insist upon all evidence bearing upon 
the point going into the statement. (American Typ4 
GXU. GaL--6 



66 SwETT V. Gray. [141 Cal 

Founders' Co. v. Packer, 130 CaL 459.) The order 
from which the appeal is taken shows that the amend- 
ments to the statement were allowed, and the motion 
was made npon the settled statement and amendments. The 
amendments are entitled to consideration here. (Valentine 
V. Stewart, 15 Cal. 387; Loucks v. Edmondson, 18 Cal. 203; 
Low V. McCallan, 64 Cal. 2.) The order granting the new 
trial became absolute for refosal of appellant to accept the 
condition. (Sherwood v. Kyle, 125 Cal. 652; Brooks ▼. San 
Francisco etc. R. B. Co., 110 CaL 177; Davis ▼• Southom 
Pacific Co., 98 Cal. 13.) 

CHIPMAN, C. — Seduction. The cause was tried by a jury, 
and plaintiff had the verdict assessing ^'the amount of dam- 
ages at the sum of eight thousand two hundred and fifty 
dollars, as compensatory damages, and five thousand and fifty 
dollars as exemplary damages." Judgment was entered that 
plaintiff recover from defendant "the sum of thirteen thou- 
sand and three hundred dollars," and costs assessed, etc. 
Defendant moved for a new trial, and on hearing the motion 
the court, on May 4, 1901, ** ordered that a new trial be 
granted, unless plaintiff, within ten days, in writing, remits 
all of the judgment in excess of $5,000, and if plaintiff shall 
remit the sum of $8,300 from the judgment within ten days, 
then and in that case the motion for a new trial will be de- 
nied." Plaintiff did not remit any part of the judgment, but 
on May 10, 1901, without waiting the ten days mentioned 
in the order, served notice of appeal from this order and now 
contends: 1. That the ** trial court did not exercise a proper 
legal discretion in granting a new trial," on the terms stated; 
and 2. That the court had no jurisdiction to determine the 
motion, and the order is therefore void. 

1. As to the second of these points, the first calling for 
attention, the jurisdiction of the court is challenged on two 
grounds : 1. The specifications of insufficiency of the evidence 
to justify the verdict are themselves insufficient, and are in- 
applicable where a new trial is sought on the ground of 
damages given through passion or prejudice; and 2. Because 
the court allowed the amendments to the proposed statement 
at the hearing of the motion after the statement had been 
settled and signed by the judge. The proposed statement 



Nov. 1903.] SwETT V. Gray. 67 

was settled and allowed and signed by the judge on Feb- 
ruary 27, 1901. On March 1, 1901, defendant, by his counsel, 
filed certain amendments to the proposed statement. These 
amendments are indorsed by the clerk: ''Beceived for the 
judge who tried the cause this 6th day of February, 1901," 
and on the same day a copy was served on plaintiff's counsel 
and acknowledged by them. No objection to the proposed 
amendments was noted in the acknowledgment. On May 
4, 1901, as shown by the minutes of the court, counsel for 
defendant ''moved the court for an order granting leave to 
file amendments to statement on motion for new trial." 
Plaintiff objected ''on the ground that plaintiff has had no 
notice of the motion. Objection overruled and motion granted. 
Plaintiff excepts." Defendant then moved for a new trial 
"on the grounds set forth in his statement on motion for a 
new trial and the amendments thereto." This motion was 
argued by respective counsel without further objection by 
plaintiff, and the court made the order already noticed. We 
have what purport to be the minutes of the court, made at 
the time the motion for a new trial was argued and passed 
upon. These minutes show that the proposed amendments 
were before the court at the time that motion was before it, 
and were then allowed, and they were referred to in the mo- 
tion for a new trial, made at the same time the amendments 
were allowed. I think it sufficiently appears that the pro- 
posed amendments were considered by the court in making 
the order appealed from and the record made of the proceed- 
ings then had may be considered here. Appellant was not 
injured because not previously served with notice of the 
motion to amend the statement. She had actual notice of the 
proposed amendments by service of them upon her counsel 
two months before the motion. At the hearing of the motion 
she offered no amendments and did not object to the matter 
proposed to be added to the statement, but objected gen- 
erally to any amendment. The specifications in the notice of 
the motion failed to state the ruling on certain questions and 
answers of witnesses duly objected to by defendant, but re- 
ferred to them only by number. The amendments embodied 
the question, answer, objection, and ruling in each instance 
as shown by the record, and were in fact amendments of the 
specifications in the notice of the motion. The amendments 



«8 SwBTT V. Qbat. [141 Cal 

were proper under section 659 of the Code of Civil Procedure, 
and it was within the discretion of the judge to allow thein. 
(Warner v. Thomas etc. Works, 105 Cal. 409. Upon the 
question of notice, see People v. Southern, 118 Cal. 359.) It 
is urged by appellant, however, that the statement should 
have been re-engrossed, with the amendments embodied in the 
re-engrossment, and then recertified by the judge, and this 
not having been done, there is no statement before the court, 
and the order was without authority. If these amendments 
were improperly allowed, the effect would not necessarily 
be to vacate the already settJed statement, but would simply 
leave the original statement undisturbed as previously settled. 
The proper course perhaps would have been as taken iii 
Warner v. TJiomas etc. Works, 105 Cal. 409,— namely, to 
move the court to vacate the settlement and allowance of the 
statement, with leave either to re-engross the same and place 
the proposed amendments therein or to have them deemed to 
be so re-engrossed, settled, and allowed. As we have seen, 
however, the amendments were treated by the court and by 
the parties as part of the statement. No injury was done to 
plaintiff, either by the amendments thereto or failing to 
embody them in a re-engrossed statement, and we think they 
may be considered as part of the statement. It cannot be 
said, therefore, that the court made the order without having 
any statement before it, as claimed by appellant. (See Val- 
entine V. Stewart, 15 Cal. 387 ; Loncks v. Edmondson, 18 Cal. 
203 ; Low v. McCaUan, 64 Cal. 2. See, also, Hayne on New 
Trial, p. 476.) 

Upon the other objection we think the specifications without 
the amendments dearly fall within the rule laid down in 
American Type Founders' Co. v. Packer, 130 Cal. 459. There 
were defective spedflcations, but there were others amply 
sufficient to point out the particulars in which it is claimed 
the court was authorized to grant a new trial. 

2. The remaining point relied on by appellant is, that the 
court had no authority to make the order reducing the judg- 
ment, and the discussion of the point by appellant proceeds 
upon the erroneous assumption that the trial court made the 
order on the ground of passion or prejudice having influenced 
the verdict. The motion was made on most of the statutory 
grounds, including insufficiency of the evidence to justify the 



Nov. 1903.] SwETT V. Gray. 69 

verdict, and that the verdict is against law, but did not include 
subdivision 5 of section 657 of the Code of Civil Procedure, — 
namely, ''Excessive damages appearing to have been given 
under the influence of passion or prejudice." The order does 
not disclose, and nothing in the case shows the ground on 
which it was made. But if it had done so, this court will re- 
view the entire record upon which the order is based, and the 
order will be affirmed if any error be found which would have 
justified the court in making it ; and so, also, where the order 
was silent as to the ground on which it was made. {Kauff' 
man v. Maier, 94 CaL 269; People v. Flood, 102 Cal. 330; 
Tibbetts v. Bower, 121 Cal. 7 ; Anglo-Nevada etc. Corporation 
V. Ross, 123 Cal. 520.) It was said in Sherwood v. Kyle, 125 
Cal. 652, the action being for slander: '^ Except where one 
ground is as to the sufficiency of the evidence, and this only 
as to the ruling upon that one point, it is utterly immaterial 
here upon what ground the new trial was granted. The re- 
spondent may defend the ruling upon any point involved in 
his motion." It was also. said in this case: ''The power of 
the court to make a conditional order of this character is 
thoroughly settled in this state. " Where the order is made by 
the court on the ground that the damages were given under 
the influence of passion or prejudice, as was the case in 
Sherwood v. Kyle, 125 Cal. 652, the rule is stated to be as 
claimed by appellant, — ^namely, ''The judge should not grant 
a new trial merely because he deems the verdict excessive, 
unless it is so excessive as to indicate that it was the result of 
passion or prejudice." But where the court makes the order 
without assigning the ground on which it was made, the order, 
as we have seen, may be supported upon any point involved 
in the motion. If tiie court excludes the ground of insuffi- 
ciency of the evidence by direct language, and the record 
shows a conflict of evidence, *'the court, upon the same prin- 
ciple that caused it to affirm an order granting or denying 
a new trial upon that ground, will accept the conclusion of the 
trial court and not re-examine the evidence." {Kaufman 
V. Maier, 94 Cal. 269.) That the evidence is insufficient to 
justify the verdict or other decision is a ground distinct from 
that of damages appearing to have been given under the in- 
fluence of passion or prejudice, and the court may grant a 
new trial where in its judgment the evidence is insufficient 



70 SwETT V. Qbay. [141 CaL 

to justify the verdict without regard to the question as to 
whether the verdict was the result of passion or prejudice; 
and ''as the granting or denying a motion for a new trial 
upon the ground that the decision or verdict was contraiy to 
the evideDce is largely within the discretion of the trial court, 
its action will not be reversed unless its discretion in this 
respect has been abused, whether this be the only ground upon 
which the motion is made or only one of the several statutory 
grounds." {People v. Flood, 102 Cal. 330.) In the present 
case there was a conflict upon the question as to whether 
defendant was guilty of the seduction charged; there was 
conflict as to the previous good character of the plaintiff for 
chastity, as to her character for truth and veracity, as to the 
evidence touching the amount of damage, — ^plaintiff testi- 
fying that she was ruptured and her attending physician 
testifying that there was no rupture. Upon the record before 
us we cannot say that the court erred in making the order. 

3. The question of the sufticiency of the complaint cannot 
be considered on motion for new trial where there is no appeal 
from the judgment. {Swift v. Occidental Mining Co., (Cal.) 
70 Pac. 470.) Plaintiff appealed from the order before the 
ten days had expired, during which time she was given an 
option to remit a part of the judgment, and by so doing the 
order would have stood denied. She now asks that if the 
judgment be aiSrmed ''that this court designate and fix in its 
judgment and decision a reasonable time within which plain- 
tift' may, if she shall desire so to do, make such remission as 
specified in said order of the said superior court" The ap- 
peal, in efl'ect, was a refusal by plaintiff to remit any portion 
of the judgment or abide by the terms of the order, and was 
an exercise of her option. 

We do not think she should be permitted to appeal here on 
the assumption that she had all to gain and nothing to lose 
by the course taken. 

It is advised that the order be affirmed. 

Haynes, C, and Gray, C, concurred. 

For the reasons given in the foregoing opinion the order 
appealed from is affirmed. 

McParland, J., Lorigan, J., Henshaw, J. 



Nov. 1903.] TiNGLET V. Ons. 71 



[L. A. No. 1897. In Bank.— November 7, 1903.] 

KATHBEINE TINGLET, AppeUant, v. HABBISON GRAY 
OTIS et al., Respondente. 

Obdbb Ohamgino PLiLcn of Tbial— Appeal — Insuffioixnt Bboobd — Dia- 
MISSAL. — ^npon appeal from an order ebanging the place of trial, 
where a bill of exeeptiona settled without notice has been stricken 
from the files of the superior court, and by this court from the tran- 
script on appeal, leaving nothing but the notice of appeal and the 
clerk's certificate as to the undertaking, it is the duty of this court 
to dismiss the appeal of its own motion, without considering a mo- 
tion to dismiss it for failure of appellant to serve and file points 
and authorities. 

MOTION to dismiss an appeal from an order of the Supe- 
rior Court of San Diego County granting a change of the 
place of trial. N. H. Conklin, Judge. 

The facts are stated in the opinion. 

A. B. Hotchkiss, and P. Shay, for Appellant 

Eugene Daney, Hunsaker & Britt, and D. M. Hammack, 
for Respondents. 

VAN DYKE, J. — This is an appeal by plaintiff from an 
order granting the defendants' motion for a change of the 
place of trial from the county of San Diego to the county of 
Los Angeles. 

Defendants moved to dismiss said appeal on the ground 
that the appellant had not served or filed printed points 
and authorities within thirty days after the filing of the tran- 
script, as required by the rules of this court. That motion 
was argued and submitted July 6, 1903. Thereafter, October 
19, 1903, at the Los Angeles term of court, respondents, pur- 
suant to notice given, moved to strike from the printed tran- 
script that portion purporting to be a bill of exceptions 
settled by the lower court, on the ground that the bill of ex- 
ceptions was presented and settled without notice, and that 
since the filing of the transcript said superior court had can- 
celed the certificate of allowance, and stricken the bill of 



72 Estate of Cahpbelu [141 GaL 

exceptions from the files of the lower court, which motion was 
by this court, on October 20th, granted. 

The bill of exceptions having been stricken from the tran- 
script, nothing remains before this court except the notice of 
appeal and the certificate of the clerk of the court below 
that an undertaking on said appeal in due form had been 
filed. Without considering the motion to dismiss, based upon 
the technical ground of failure on the part of the appellant 
to serve printed points and authorities, it would be the duty 
of the court of its own motion, in the present condition of the 
record, to dismiss the appeal; and it is so ordered. 

Shaw, J., Angellotti, J., Lorigan, J., McFarland, J., ani 
Beatty, C. J., concurred. 



[8. P. No. 3718. In Bank.— November 16, 1908.] 

In the Matter of the Estate of JAMES CAMPBELL, De- 
ceased. 

Estates of Deceased Persons — Decree or Distribution — Disohaboi 
OF Administeatrix — Tims fob Appeal — Dismissal. — The time for 
an appeal from probate orders, judgments, and decrees is limited 
by section 1715 of the Code of Civil Procedure to sixty days from 
the date of entry. This court has no jurisdiction of appeals from 
a decree of distribution or from a decree of final discharge of an 
administratrix, taken more than sixty days after their entry; and 
such appeals will be dismissed. 

MOTION to dismiss appeals from a decree of distribution 
of the Superior Court of Santa Clara County and from a 
decree discharging an administratrix with the will annexed. 
M. H. Hyland, Judge. 

The facts are stated in the opinion of the court. 

H. L. Gear, Charles W. Slack, and J. J. Dunne, for Ap- 
pellant. 

The decree of distribution appealed from in this case by 
heirs of the decedent is a final judgment for the direct pay- 



Nov. 1903. J Estate of Campbell. 73 

ment of money to trustees under the will, in pursuance of a 
trust which is void in its creation, as suspending the power 
of alienation beyond heirs in being. (Estate of Walkerly^ 
108 Cal. 627, 657-658.*) It is a ** final judgment in a special 
proceeding," within the express terms of section 939 of the 
Code of Civil Procedure, and is appealable as such within six 
months from the date of entry. Section 1715 should be con- 
strued, in principle, as applicable only to appeals in probate 
proceedings which are not from final judgments ; and any case 
to the contrary should be overruled. Construction should 
favor the right of appeal. (Appeal of Houghton, 42 Cal. 51, 
52; San Francisco v. Certain Real Estate^ 42 Cal. 518; Con* 
verse v. Burrows, 2 Minn. 229 ; Pearson v. Love joy, 53 Barb. 
407.) Statutes and the code are to. be construed so as to give 
effect to each part. {Chever v. Hazen, 5 Cal. 169 ; San Fran- 
cisco V. Hazen, 31 Cal. 412 ; Langenour v. French, 34 Cal. 92 ; 
Lates V. Salmon, 35 Cal. 576 ;* People v. Southwell, 46 Cal. 
141 ; McOary v. Pedrorena, 58 Cal. 91.) 

C. T. Bird, for Respondent 

The appeals must be dismissed. (Code Civ. Proc, sec. 
1715 ; Estate of Wiard, 83 Cal. 619, and cases in which it is 
cited ; In re Walkerly, 94 Cal. 353 ; In re Backus, 95 Cal. 672 ; 
In re Heldt, 98 Cal. 553; In re Smith, 98 Cal. 639; Estate of 
Wittmeier, 118 Cal. 256.) 

THE COURT. — Decrees were entered herein making final 
distribution in February, 1903, and discharging the adminis- 
tratrix with the will annexed in April, 1903. Notices of ap- 
peal from these decrees were served August 15th following, — 
more than sixty days after their entry. Respondent moves to 
dismiss the appeals upon the ground that the notices were not 
served in time. 

The motion must be granted. The time for appealing from 
probate orders, judgments, and decrees is limited by section 
1715 of the Code of Civil Procedure to sixty days from date 
»f entry, and this court has no jurisdiction of an appeal at- 
tempted after the lapse of that time. The decisions to this 
effect are numerous, and the language of the statute is plain. 



149 Am. St. Bep. 97, and note. >95 Am. Dee. 139. 



74 fioRiES V. Union BmLDmo 2to. Assn. [141 Cal. 

(See Estate of Wiard, 83 Cal. 619, and the nnmerous caseB 
in which that decision has been cited and followed.) 
The appeals are dismissed. 



fSac. No. 1017. Department One.— November 20, 1903.] 

KATE BOBIES, AppeUant, v. UNION BUILDING AND 
LOAN ASSOCIATION, and T. W. O'NEIL and 
L. HEILBBON, as its Trustees and Receivers, Respond- 
ents. 

BT7nj>iNo AND Loan Association — Attachmxnt Lden — Bepobt of 
Commissioners to Attoenbt-General — Subsequent Action. — The 
property of a building and loan association is subject to attach- 
ment by any creditor thereof, at any time prior to the commence- 
ment of an action by the attorney-general to enjoin it from doing 
business; and the lien of an attachment upon its real estate is not 
affected by a prior report of the commissioners to the attorney-gen- 
eral that the association was doing business in an unsafe manner. 

Id. — Subsequent Possession or Becettebs — Existing Liens not At- 
veoted. — The subsequent possession of receivers appointed by the 
court cannot affect the existing lien of the attachment. The ap- 
pointment of a receiver works no injury to the least right of any 
one; but the receiver is the hand of the law, which preserves and 
enforces rights, and never destroys them. The receiver's possession 
is subject to all valid and existing liens upon the property at the 
time of his appointment. 

APPEAL from an order of the Superior Court of Saen^ 
mento County dissolving an attachment. J. W. Hughes, 
Judge. 

The facts are stated in the opinion. 

M. S. Wahrhaftig, for Appellant 

A. M. Johnson, and Devlin & Devlin, for R€Si)ondent8. 

HATNES, C. — ^Plaintiff appeals from an order dissolving 
her attachment levied upon real estate of the said association 



Nov. 1903.] BoRiES V. Union Buildino etc. Assn. 75 

in her action upon a money demand. The transcript con- 
tains a bill of exceptions. There is no controversy as to 
the material facts relating to the validity of the attachment. 

On December 14, 1897, the state board of commissioners 
of building and loan associations made an investigation of the 
affairs and condition of the defendant Union Building and 
lioan Association, a corporation, and on January 24, 1898, 
reported to the attorney-general that said association was 
''transacting an unsafe business," and on January 26th, noti- 
fied the association that it had so reported to the attorney- 
general. On February 7, 1898, that officer, on behalf of the 
people, commenced an action against said association, pur- 
suant to the provisions of the act creating said board of 
commissioners (Stats. 1893, p. 229), and on February 24, 
1898, judgment was entered enjoining the said association 
from the further transaction of business, and appointing a re- 
ceiver. Upon appeal this court affirmed the judgment, ex- 
cept as to the appointment of the receiver, and as to said ap- 
pointment the judgment was reversed. (People v. Unioti 
Banking Assn., 127 Cal. 400.) Afterwards, in an action 
brought by a member of the association, the defendants O'Neil 
and Heilbron were appointed trustees and receivers to liqui- 
date the business and affairs of the association, and it was 
upon their motion that plaintiff's attachment was dissolved. 

The action in which said attachment was issued was brought 
by plaintiff on January 21, 1898, and the attachment was 
levied January 31, 1898, on real estate of the defendant asso- 
ciation. The association had suspended business in Decem- 
ber, 1897. 

The only grounds upon which respondents rely to sustain 
the action of the court in dissolving appellant's attachment, 
have their basis in the examination of the affairs and condi- 
tion of the association by the state board of commissioners, 
and their report to the attorney-general thereof, and the ac- 
tion of the court taken upon his complaint under the provi- 
sions of said act of 1893, creating said board of commission- 
ers. 

Said report of the board of commissioners to the attorney- 
general is as follows : 

''The Union Building and Loan Association of Sacramento 
is conducting its business in an unsafe manner, such as to 



76 BoBiEB V. Union Bmu>iNa bto. Assn. (141 Cal. 

render its farther proceeding hazardous to the public and to 
those having funds in its custody." 

Said examination was made (or commenced) December 14, 
1897, but no report was made to the attorney-general until 
January 24, 1898, and appellant's action was commenced 
three days before that date, and her attachment was issued 
and levied seven days before his complaint was filed. But 
the length of time that elai)6ed after the levy of the attach- 
ment before said action was commenced by the attorney-gen- 
eral is immaterial, since the property of the association re- 
mained subject to attachment or execution at least until the 
conmiencement of that action. Whether it remained so liable 
until its sequestration by the appointment of a receiver need 
not, in this case, be considered. But neither the appointment 
of a receiver in that case nor the subsequent appointment of 
respondents Heilbron and O'Neil as receivers affects the lien 
of appellant acquired before the action was commenced. In 
Lanz V. Fresno etc. Bank, 125 Gal. 458, it is said: ''In this 
case it nowhere appears that any proceedings have ever been 
taken by the bank commissioners and the attorney-general 
resulting in the judicial declaration contemplated by the 
Banking Act; and until such action is taken, the bank's legal 
status as to its creditors is not changed. . . . We conclude 
that in the absence of the judicial declaration contemplated 
by the Banking Act, the right of action against the bank by 
creditors stands exactly as though its doors had never been 
closed and its business was progressing in the usual and ordi- 
nary channels." 

Von Roun v. Superior Court, 58 Cal. 358, arose under the 
Insolvency Act (Stats. 1880, p. 82). In that case it appeared 
that an order directing the sheriff to take charge, etc., was 
made on January 4, 1881. Von Roun had brought suit and 
procured a writ of attachment therein to be levied on certain 
property by the sheriff, and on the 8th the sheriff was orderetl 
to turn over to the receiver the attached property then in his 
hands. This court said: ''It seems to be the impression of 
counsel for the applicants for the writ of review that they 
have a lien acquired by the levy of the writ of attachment on 
the property seized which will be lost if the property is 
turned over to the receiver. This is an entire misapprehen- 
sion of the law. The appointment of a receiver works no in- 



Nov. 1903.] BoRiBS i;. Union Building Assn. 77 

jury to the least right of any one. It would be strange if it 
did. The receiver is the hand of the law, and the law con- 
serves and enforces rights — never destroys them. His ap- 
pointment determines no right, and in no way affects the title 
of any party to the property in litigation" (citing numerous 
cases). ''If the applicants have any lien the receiver holds 
the property subject to such lien as fully as did the sheriff; 
and if such property is sold by the receiver, whatever lien ex- 
ists attaches to the proceeds." 

In High on Receivers (see. 138), it is said: ''It is impor- 
tant to observe that the receiver's possession is subject to all 
valid and existing liens upon the property at the time of his 
appointment, and does not divest a lien previously obtained 
in good faith." 

Respondents rely, however, upon the case of Crane v. Pact- 
fie Bank, 106 Cal. 64, where this court aflSrmed an order dis- 
solving an attachment levied upon the assets of the bank by 
Crane, a creditor who was a depositor. That case involved 
a construction of the Bank Commissioners' Act, which in 
some of its features is similar to the act creating the board of 
commissioners of building and loan associations ; but the two 
acts are materially different, not only as to the powers and 
duties of the respective boards, but as to the character and 
importance of the coiporatious to which they relate. 

In People v. Superior Court, 100 Cal. 114, speaking of sec- 
tion 11 of the Bank Commissioners' Act, it was said: "We 
have no doubt that this section was intended by the legisla- 
ture to provide for every case involving the winding up of 
the business of a banking corporation, and that it necessarily 
supersedes the provisions of the Insolvent Act of 1880, so far 
as this class of corporations is concerned." And again, 
**The statute is essentially one of bankruptcy in relation to 
this class of corporations." Under said act said bank com- 
missioners are constantly charged with the duties of examina- 
tion, and of a limited direction during the business life of the 
bank and the supervision of its liquidation when its life ends 
in insolvency. The commissioners of building and loan asso- 
ciations have no similar power except that of examination 
and reporting to the attorney-general. 

It is not necessary, however, to enlarge upon the distinc- 
tions between the x>owers and duties of these two boards, since 



78 BoBiBS V. Union Building etc. Assn. [141 Cal. 



the legislature has given an emphatic expression upon th«! 
Bubject since the case of Crane v. Pacific Bank, 106 Cal. 61, 
was decided. 

The Bank Commissioners' Act was passed in 1878 (Stats 
1877-1878, p. 740), and was amended March 10, 1887, (State. 
1887, p. 90,) and tne said amended act was in force when 
Crane v. Pacific Bank, 106 Cal. 64, was decided. The act 
creating the board of commissioners of building and loan as- 
sociations was enacted March 23, 1893, (State. 1893, p. 229,) 
section 9 of which act corresponded in some material respecte 
to section 11 of the Bank Commissioners' Act. The last- 
named act was, however, again amended March 26, 1895, 
(State. 1895, p. 172,) and section 11 of the amended act con- 
tains, among others, the following provision: ''The issuance 
of the injunction hereinabove provided for shall, by opera- 
tion of law, dissolve any and all attachmente levied upon any 
property of such corporation within one month next preced- 
ing the date of notification of the commissioners to the attor- 
ney-general, as provided for in this section, and no attach- 
ment or execution shall, after the issuance of such injunction, 
and during the process of liquidation hereinafter provided 
for, be levied upon any property of said corporation, nor 
shall any lien be created thereon." 

On the same day (March 26, 1895), the act creating said 
board of commissioners of building and loan associations was 
also amended, but section 9 of that act was unchanged, nor 
was there in the act so amended any provision such as that 
above quoted, nor any prohibition against acquiring liens 
upon the property of such associations by attachment or oth- 
erwise. These amendmente, passed by the same legislature, 
on the same day, and doubtless considered by the same com- 
mittee, we think conclusively show the legislative intent to 
leave the property of such associations subject to attachment 
and other liens acquired prior to the commencement of the 
action by the attorney-general. The act gives no effect to the 
examination made by the board of commissioners. The 
board cannot give any order or direction to the corporation, 
nor give notice of the condition of the association to creditors, 
nor is it compulsory upon the attorney-general to bring suit. 
If respondente' contention is sound, until suit is brought the 
association may continue ite business, borrow money, contract 



Nov. 1903.] BoBiES V. Onion Building Assn. 79 

debts, sell its property, though insolvent, while a creditor is 
denied the right to resort to the writ of attachment to secure 
pa3^inent of his just demands. It is well settled that the prop- 
erty of insolvent private corporations is subject to attach- 
ment — a fact distinctly recognized by the amended Bank 
Commissioners* Act — and we see no ground to distinguish be- 
tween building and loan associations and other private cor- 
porations in this regard in the absence of a statute creating 
a distinction either by express provisions or by necessary 
implication. 

It follows that the real estate attached by appellant is 
charged in the hands of the receiver with her attachment 
lien, and that the order dissolving the attachment should be 
reversed. 

Cooper, C, and Smith, C, concurred. 

For the reasons given in the foregoing opinion the order 
appealed from is reversed. 

Shaw, J., Angellotti, J., Van Dyke, J. 

Hearing in Bank denied. 

Beatty, C. J., dissented from the order denying a hearing 
in Bank. 



[8ae. No. 1182. Department One.— November 20, 1903.] 

KATE BORIES, Claimant, Appellant, v. UNION BUILD- 
ING AND LOAN ASSOCIATION, T. W. O'NBIL, and 
L. HEILBRON, Receivers and Trostees, HERMAN 
STEINMAN et al.. Creditors, and J. C. DEVINB, 
Stockholder-Plaintiff, Respondents. 

BunoiNG AND Loan Association — ATTAOHifSNT Lixn — Oosrs — iNjmro- 
TiON— PxnnoN or Stoobcholdeb^-Bzcsivsbs. — ^An attachment upon 
a note of a building and loan association, levied upon its land 
before the commencement of an injunction suit by the attorney- 
general to restrain its business, creates a TaKd lien for the amount 
of the note and costs of suit, which is not affected bj the injunction 



80 BoRiES V. Union Buildino etc. Assn. [141 Cai. 

suit; and subsequent recdvera appointed upon petition of a stoek- 
holder of the assoeiation to wind up its bntinees, took the attached 
property charged with the Uen of the attachment. 

Id.— Sals of Attached Propxbtt— Lun xtpon Pboosbds— Pbo Rata 
Distribution. — Upon a sale of the attached propertj hj the receiT- 
ers, the proceeds were still charged with the lien for the amount of 
the note and costs of the attachment suit, and must be applied bj 
the receivers in payment thereof in foil, if sufficient ; and the claim- 
ant of the lien can only be made to share with onseenred creditors 
in a pro rata distribution of assets, at to the amoont of any unsa- 
eured deficiency. 

Id. — IicpBOPXB DiSTiNCTxoN AB TO CLAIMS — ^Moiorr LoANXD-— Non fOS 
Debt — Ebbonious Judombnt. — There is no ground for the dittiiio- 
tion in the judgment of the superior court in allowing claims in 
full for "cash money loaned '' to the association, and in rejecting 
the validity of the attachment levy of appellant upon a note given 
in discharge of a debt or liability of the association for a given 
sum, due for the surrender of stock worth the £aoe value of the note, 
and ordering the note paid pro rata with other creditors, after full 
satisfaction of all claims for cash mon^ loaned to the corporation. 
The court was not justified in putting all claims for money loaned 
in a preferred class to be paid in fulL 

APPEAL from a judgment of the Superior Court of Sac- 
ramento County. J. W. Hughes, Judge. 

The facts are stated in the opinion. 

M. S. Wahrhaftig, for Appellant 

A. M. Johnson, for Thomas W. 0*Neil, Receiver, Respond- 
ent. 

Devlin & Devlin, for L. Heilbron, Receiver, Respondent 

Hiram W. Johnson, for PlaintifF-Respondent 

H. C. Ross, Hinkson & Elliott, Prewett & Henderson, R 
Platnauer, A. L. Shinn, A. E. Miller, Prank Brown, W. A 
Gett, and Isaac Joseph, for various Creditors, Respondents. 

HAYNES, C— This is an appeal by Kate Bones from 
parts of a judgment entered in the above-entitled action, or 
proceeding, taken upon the judgment-roll and bill of excep- 
tions. 



Nov. 1903.] BoBiBS V. Union Building Assn. 81 

Appellant, on January 21, 1898, commenced an action upon 
a promissory note executed by said building and loan associa- 
tion in 1896, and in said action on January 31, 1898, attached 
real estate of said defendant. On February 7, 1898, in an 
action commenced by the attorney-general, said association 
was found to be insolvent, and was enjoined from the further 
transaction of business, and a receiver was appointed. On 
appeal that part of the judgment appointing a receiver was 
reversed. (People v. Union Building and Loan Assn., 127 
Gal. 400.) After said reversal, upon the petition of a stock- 
holder, receivers were appointed. 

Afterwards, pursuant to an order of the court requiring 
claimants to present their claims for adjudication, appellant 
presented her claim, for the amount due on the obligation 
sued upon and costs. Appellant presented her claim, reserv- 
ing, however, all rights under her attachment; and upon 
the hearing of her claim the court found the execution and 
delivery of the note, that it was executed in consideration 
of a valid claim against the association, that at the time 
her action was brought, and the attachment levied, the de- 
fendant corporation was being investigated by the board ')f 
commissioners, and was found by said board to be conduct- 
ing an unsafe business, that the attorney-general brought 
an action against the corporation, and in said action an order 
was made enjoining it from continuing its business, and ap- 
pointing a receiver to wind up its affairs. 

As conclusions of law, the court found her claim for 
principal and interest to be valid; that she should be paid 
said sum of fifteen hundred dollars with interest, "in the 
course of liquidation pro rata with other creditors, after pay- 
ment in full for claims against said defendant corporation 
for cash money loaned to said corporations, and that said at- 
tachment was illegally levied and therefore void, and that 
claimant is not entitled to costs incurred in her said action,*' 
and judgment was entered accordingly. This appeal is taken 
by Kate Bories, the claimant, from so much of said judgment 
as disallows the costs of her said action amounting to $13.25, 
and from that part which directs the receivers to pay her 
claim **pro rata with other creditors after full satisfaction 
of all claims for cash money loaned to said defendant corpora- 
tion.'* 

GXLL OaL— 6 



82 BoBiBS V. Union Buildino kto. Assn. [141 CaL 

Prior to the entry of this judgment appellant's said attach- 
ment was dissolved upon motion of the receivers. Appellant 
here, Eate Bories, in due time appealed from that order, and 
upon the hearing in this court the order dissolving the attach- 
ment was reversed. (See Baries v. Union Building and Loan 
Assn., ante, p. 74, this day decided.) 

1. Appellant's attachment being valid, and her said action 
authorized and unreversed, her costs were secured by the at^ 
tachment, and should be paid in full from the proceeds of the 
sale of the attached property, her daim for costs sta n d ing , 
in that respect, with the judgment for $1,807.50, allowed 
upon her claim upon the promissory note. 

2. The remaining part of the judgment from which this ap* 
peal is taken is also erroneous. Her attachment lien was un- 
affected by the appointment of the receivers. The property 
attached came into their hands charged with the lien of the 
attachment, and when sold by them the proceeds are still 
charged with the Uen, and must be applied by the receivers 
in payment of appellant's claim. (See Bories v. Union 
Building and Loan Assn,, ante, p. 74, this day decided, and 
authorities there cited.) 

If the proceeds of the attached property are sufficient, her 
claim must be paid in full. If insufficient, the remainder 
thereof will stand as an unsecured claim and share in a pro 
rata distribution of the assets. 

3. Nor can we see any ground for the distinction made 
by the court between "claims for cash money loaned" and 
the claim of appellant concerning which claim the couit 
found : "That the said note was executed for and in considera- 
tion of a valid claim of said assignor [Joseph Bories, to whom 
the note was made] against said defendant corporation for the 
surrender of a certificate of shares of stock in the said corpora- 
tion duly appraised and estimated to be worth the face value 
of the said note." We see no distinction in the character or 
consideration of a note given in discharge of a debt or liabil- 
ity against the maker for a given amount of money and a 
note or obligation for the same amount for "cash money*' 
loaned. Besides, the effect of this part of the judgment 
would be, that creditors whose claims are for money loaned 
would be put in a preferred class and paid in full, and the 
remaining creditors would share pro rata in any balance that 



Nov. 1903.] SwBTT V, Gray. 83 

might remain after the claims of the preferred class shonld 
be paid in full. 

Counsel for respondents do not cite us any statute or au- 
thorities sustaining this part of the judgment, and barely al- 
lude to it in the briefs. It is clear that the findings do not 
justify or sustain the judgment as to the parts appealed 
from, and as to such parts the judgment should be reversed, 
with directions to amend the judgment by an order to the 
receiver to apply the proceeds of the sale of the attached 
property to the payment of appellant's said claim in full, if 
it be sufficient to do so, and if it be insufficient, that as to the 
deficiency she share pro rata with the unsecured creditors. 

Cooper, C, and Smith, C, concurred 

For the reasons given in the foregoing opinion it is ordered 
that the judgment as to the parts appealed from be reversed, 
and that an order be made by the court below directing the 
receivers to apply the proceeds of the property attached by 
appellant to the payment of her claim in full, if it be sufficient 
to do so, and if it be insufficient, that as to the deficiency she 
share pro rata with the unsecured creditors. 

Shaw, J., Angellotti, J., Van Dyke, J. 

Hearing in Bank denied 

Beatty, C. J., dissented from the order denying a hearing 
in Bank. 



[L. A. No. 1142. Department Two.— November 20, 1903.] 

NELLIE SWETT, Respondent, v. JOHN A. GRAY, Ap- 

pellant. 

AonoN FOB Seduction — Sufkciknot of OoicFuimT — Chastity of 
Plaintiff. — A complaint in an action for seduction, which alleges 
that it was induced solely by the defendant's promise of marriage, 
and false pretenses of great love, and his urgent importunity, to 
which she reluctantly yielded, and that she was then a minor, 
and then #a8 and still is unmarried, and that at the time of the 



84 SwBTT V. Gray. [141 Oal. 

grievanees cozDplained of, and at all times prior thereto, she had 
been chaste and yirtuous, avers with sufficient definiteness that she 
was chaste and virtuous at the time of the actual seduction. 

Id. — AvzB^vEvi: of Ability and Wiuingness to Mabbt not Bbqttibid. 
— Where the promise of marriage was only one of the means made 
use of to accomplish the minor's seduction, and other artifices and 
pretenses were resorted to for the same purpose, the complaint need 
not allege her ability or willingness to marry the defendant. 

Id.— Special DBifUBiua — Misjoinder of Causes — Ambiguitt. — ^A spe- 
cial demurrer on the ground that the complaint misjoins a cause 
of action for seduction and for breach of a contract to marry, and 
for ambiguity and uncertainty as to whether the cause of action is 
based on the aUeged seduction, or upon the alleged contract to 
marry, or upon the alleged suffering of the plaintiff, was properly 
overruled. The promise of marriage is merely set out as one of the 
inducements of the seduction, and the cause of action and prayer 
for damages is solely for the alleged seduction, and in nj sense on 
a contract to marry, and there is no ambiguity as to the cause of 
action. 

APPEAL from a judgment of the Superior Court of River- 
ride County. Lucien Shaw, Judge presiding. 

The facts are stated in the opinion. 

Kendrick & Ejaott, John G. North, Byron L. Oliver, Hart- 
ley Shaw, Valentine & Newby, and Byron Waters, for Ap- 
pellant. 

Gibson & Gill, for Respondent 

CHIPMAN, C. — The action is for alleged seduction, ac- 
complished by promise of marriage and other inducements. 
The cause was tried to a jury, and plaintiff had the verdict. 
Defendant appeals from the judgment on the judgment-roll 
and statement of the case. There is an appeal by the plain- 
tiff from the order granting a new trial, L. A. No. 1120, 
which, having been aflSrmed November 6, 1903, makes it un- 
necessary to notice the numerous alleged errors of law occur- 
ring at the trial, specified in the motion for a new trial. 

Defendant interposed a demurrer to the amended com- 
plaint which was overruled, and he now insists that it should 



Nov. 1903.] SwBTT V. Gray. 85 



have been sustained. Counsel for respondent have filed no 
brief in support of their pleading. The grounds of the de- 
murrer are: 1. Insufficiency of facts alleged; 2. Misjoinder 
of a cause of action for failure to carry out a promise to 
marry; and 3. Ambiguity and uncertainty, in that it is not 
possible to ascertain from the complaint whether the cause 
of action is based on the alleged seduction or upon the al- 
leged contract to mariy referred to, or because of the al- 
leged suffering of plaintiff in consequence of the illness men- 
tioned in the complaint as attending her pregnancy. 

In support of the general demurrer it is contended that 
it is an essential element of a cause of action of this character 
that the plaintiff was chaste at the time of the alleged se- 
duction, and that without an allegation to that effect there is 
no cause of action stated (citing Marshall v. Taylor, 98 Cal. 
55;^ People v. Krusick, 93 Cal. 79; People v. Wallace, 100 
Cal. 613). It is further urged that the complaint is fatally 
defective, because there is no averment of plaintiff's willing- 
ness to marry the defendant or the refusal of defendant to 
marry plaintiff. The complaint contains the following alle- 
gations: ''That at the time of the commission of the griev- 
ances hereinafter mentioned, plaintiff was a minor under the 
age of eighteen years, and was and still is an unmarrieJ 
female; and at all the times prior thereto had been chaste 
and virtuous." It is contended that the complaint alleges a 
series of grievances, and that the allegation only alleges chas- 
tity prior to this series, which it is said is not equivalent to 
an allegation that plaintiff was chaste at the time of the al- 
leged seduction. The complaint alleges that about May 30, 
1898, defendant, by false pretenses of his love for plain- 
tiff, and by promises to marry her, and by urgent and per- 
sistent importunities, induced her to have sexual intercourse 
with him; **that she was young and was without experience 
in what he asked her to do, as above stated, and she greatly 
loved the defendant, and by reason of such love he had great 
influence over her, and she fully believed that he would 
soon marry her as he had promised to do, and that he loved 
her as he had so represented to her, and she alleges that she 
had no information, knowledge, or belief to the contrary, 

185 Am. St. Bep. 144. 



86 SwBTT V. Gray. [141 Cal, 

and that trusting and rdying solely upon his said promise 
to marry her, and in the love and affection he professed for 
her, and influenced by his urgent importunity, she, with 
great reluctance, consented to and did then and there have 
sexual intercourse with the said defendant/' It is then al- 
leged: ''That the said defendant on divers days and times 
thereafter, up to and including on or about the fifth day ot 
September, 1899, upon the representations and pretenses 
hereinbefore set out, on his part, and which representations 
and pretenses and promise of marriage plaintiff relied upon 
and believed, did debauch and carnally know plaintiff; and 
particularly on or about the fifth day of September, 1899, 
upon the pretenses and representations aforesaid made and 
repeated to plaintiff, upon which plaintiff solely relied and 
believed, and while plaintiff was still a minor and under the 
age of eighteen years, to wit, of the age of seventeen year) 
and nine months, did said defendant debauch and carnally 
know plaintiff, whereby plaintiff became sick and pregnant 
with child," etc. Then follow allegations of the falsity '*of 
each and every representation made by the defendant," and 
that defendant knowing the same to be false, made the same 
to deceive plaintiff and take advantage of her love and affec- 
tion for him and induce her to have sexual intercourse with 
him; **that in consequence of the seduction of plaintiff by 
the defendant as aforesaid, plaintiff has suffered greatly in 
her health," etc., **to her damage," etc. It is clear from the 
complaint that the alleged seduction occurred in May, 1898, 
and while it may be true that on the face of the complaint 
it appears that plaintiff could not have been chaste when she 
subsequently yielded to defendant's importunities, still there 
is an allegation **tbat at the time of the commission of the 
grievances hereinafter mentioned, plaintiff . . . was . . . 
and at all the times prior thereto had been chaste and virtu- 
ous," and this certainly included the time of the actual seduc- 
tion, and we think was sufficiently definite. 

There is no allegation of plaintiff's ability and willingness 
to marry defendant. It is conceded by appellant that in a 
criminal prosecution for seduction a promise to marry made 
in good faith which was not fulfilled is no defense {PeopU 



Nov. 1903.] SwBTT V. Gray. 87 

V. Samonset, 97 Cal. 448), and it is also conceded that in a 
criminal prosecution seduction is not excused by the willing- 
ness of the seducer to marry his victim and her unwillingness 
to such union, but it is urged that in a civil action for seduc- 
tion the same reasoning does not apply. It is urged that 
because in an action for breach of promise to marry an alle- 
gation of willingness on the part of plaintijff to marry the 
defendant is essential {Hook v. Oeorge, 108 Mass. 324 ; Ora- 
ham V. Martin, 64 Ind. 567) , so must it be in an action 
for seduction. Appellant cites no authority in support of 
this contention, and we do not think it can be the law. There 
might possibly exist some reason in the position where the 
promise of marriage was the sole inducement, and the plain- 
tiff was of age, although even in that case we should doubt 
it, but where other artifices are resorted to, and promise of 
marriage is but one of the means used by defendant to ac- 
complish his purpose, it would certainly not be so. As well 
might it be said that defendant in fact cherished genuine love 
and affection for his victim when he so represented his feeling 
to her, and hence that would excuse him, and so of any other 
of the inducements which brought about her ruin. In a se- 
duction case it may sometimes happen that the victim of the 
seducer's passions may awake to a realization of his un- 
worthiness upon finding herself pregnant, and that her for- 
mer love, which he had played upon, would suddenly turn 
to hate. Must she still avow willingness to marry the author 
of her disgrace and ruin, or be foreclosed the scant recom- 
pense the law affords by civil action? We think not. She 
may be a minor, as in this case, and incapable of contracting 
marriage. Society may be interested in the criminal aspect 
of a seducer's conduct, and hence the reason as appellant 
suggests for the rule in criminal cases. But so also is society 
interested in protecting an innocent woman from forced mar- 
riage with her betrayer. As in a criminal case for seduction, 
so in a civil action, the law will not impose terms so repug- 
nant to good morals and so obviously unjust to the innocent 
victim. 

There is no merit in the claim that there is a misjoinder of 
actions. The promise of marriage is set out as one of the 
inducements for the seduction, and not otherwise, and the 



88 People v. Cole. [141 CaL 

prayer for damages is solely for the alleged seduction. Nor 
do we think there is any ambiguity in this regard. Clearly 
the action is based solely upon the alleged seduction, and in 
no sense on a contract to marry. We think the demurrer was 
rightly overruled The judgment, so far as this appeal is 
concerned, should be affirmed. 

Gray, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment is affirmed, but this affirmance does not affect the order 
granting a new trial, which has been affirmed, and which 
vacates the judgment. 

McFarland, J., Lorigan, J., Henshaw, J. 



[Crim. No. 1025. Department One. — November 21, 1903.] 

THE PEOPLE, Respondent, v. CHARLES L. COLE, Ap- 
pellant. 

Cbiminax Law — Grand Labceky — Theft of Carpets — Evtoencb — 
FALSEnooD OP Defendant — Consciousness of Guilt. — Upon a pros- 
ecution for grand larceny, in stealing carpets belonging to a furni- 
ture company, where it is proved that defendant, while acting as 
shipping clerk for the company, delivered the carpets to one B. at 
the back door of the store, at six o 'clock in the morning, evidence is 
admissible to show that soon after the company discovered the loss 
of the carpets the defendant, when confronted with B., who recited 
the facts, denied the delivery of the carpets to B., and dechired that 
he did not know B. Deception, falsehood, and fabrication as to the 
facts of the case are admissible on the same theory as flight and 
eoneealment of the person charged with crime, as tending to show 
eonsciousness of guilt and criminal intent. 

Id. — Qknkbull Objection to Question — Reasons for Arrest — Matter 
OF Hearsay and Argument — Waiver of Specific Objection — Ap- 
peal. — A general objection to a question asked from a representa- 
tive of the furniture company as to his reasons for arresting the 
defendant, on the ground that it was irrelevant, incompetent, and 
hearsay, was properly overniled, as it could not be anticipated that 
the answer would contain objectionable matter, and where matter 
of knowledge was stated and also matter of hearsay, and argumenta- 



Nov. 1903.] People v. CJoul 



tWe statements mingled with declarations as to his suspicions, 
which were given without further specific objection, or any motion 
made to strike out the objectionable matter, objection thereto is 
fraived, and cannot be urged upon appeal for the first time. 

APPEAL from a judgment of the Superior Court of the 
City and County of San Francisco and from an order deny- 
ing a new trial. F. H. Dunne, Judge. 

The facts are stated in the opinion. 

J. J. Ouilfoyle, Jr., and Robert Ferral, for Appellant 

U. S. Webb, Attomey-Qeneral, and Lewis F. Byington, Dis- 
trict-Attorney, for Respondent 

QRAY, C. — ^Defendant was convicted of grand larceny, 
and appeals from the judgment and order denying him a 
new trial. 

1. The defendant was in the employ of the Indianapolis 
Furniture Company's store, in the city of San Francisco, in 
the capacity of assistant shipping clerk, and occasionally 
made sales for his employer. The evidence introduced by 
the prosecution tended to show that on the morning of March 
19, 1901, at about half -past six o'clock, the defendant at the 
back door of said store delivered to one Burke ten rolls of 
carpet belonging to the Indianapolis Furniture Company, of 
the value of about three hundred and fifty dollars. In addi- 
tion to this evidence, the prosecution, against the objection ot 
defendant, was permitted to show that soon after the dis- 
covery of the loss of the property the defendant, on being 
confronted with Burke, and in response to a recital to him 
by said Burke of the facts showing the removal and delivery 
of the carpets to said Burke, denied the fact of delivery, and 
declared that he did not know Burke. This denial of defend- 
ant we think was competent and proper evidence to go to the 
jury for what it was worth. If the jury believed that defend- 
ant delivered the property, as disclosed by the testimony of 
some three witnesses, then the fact that defendant denied 
the delivery was a circumstance tending to show that the 
delivery was not made innocently in his capacity as a sales- 
man, but with intent to steal the property. If he had deliv- 
ered the property innocently, the most natural thing for him 



90 People v. Cole. [141 CaL 

to have done was to tell the truth about it. If he intended 
to steal it, the most natural thing for him to do when ques- 
tioned about it was to lie concerning it. Deception, falsehood, 
and fabrication as to the facts of the case are treated as tend- 
ing to show consciousness of guilt, and are admissible on the 
same theory as flight and concealment of the person when 
charged with crime. In People v. Arnold, 43 Mich. 303/ 
Judge Cooley, speaking for the court, says: ^'It was never 
doubted that the conduct of a suspected party when charged 
with a crime may be put in evidence against him when it is 
such as an innocent man would not be likely to resort to. 
Thus, it may be shown that he made false statements for the 
purpose of misleading or warding off suspicion ; though these 
are by no means conclusive of ^ilt, they may strenjrthen 
the inference arising from other facts, ... so it may be 
shown that the accused fled to escape arrest, or broke jaii 
or attempted to do so, or offered a bribe for his liberty to hi^ 
keeper. These are familiar cases, and rest in sound reason. 
But the case of deliberate fabrication of evidence or of a^ 
tempt in that direction would seem to be still plainer." 
{People V. Philbon, 138 Oal. 530.) 

There is nothing in People v. Teshara, 134 Cal. 542, out of 
harmony with this rule of evidence. In that case this rule 
is not discussed or even referred to, and the case is entirely 
dissimilar to the one before us. That was a murder case in 
which, under the circumstances developed therein, if tho 
killing by defendant could be shown, his guilt would be pre- 
sumptively established, and the burden would then be upon 
him to show circumstances in mitigation or excuse. But m 
this case to show that defendant took the goods and cause<i 
them to be carried away raised no presumption of his guilt, 
because of the further fact that it was within the lines of his 
employment to do that very thing, and the burden was cast 
upon the prosecution to show by evidence that the carpets 
were removed not in the course of his employment, but with 
intent to steal, and for him to deny that he moved the goods 
when in fact he did move them would tend to show that crimi- 
nal intent necessary to establish guilt. 

2. On cross-examination of Hamilton Page he was asked if 
he did not have defendant arrested ^'because of information 



1 38 /Lm. Bep. 1S2. 



Nov. 1903. j Pboplb v. CoiiB. 91 

that Ryan gave," to which he replied, *'Well, principally," 
and further stated that he knew nothing of his own knowledge 
against defendant. He was then asked by the prosecution: 
"Just state why you had him arrested." This was objected 
to by defendant aa irrelevant, incompetent, and hearsay. The 
objection was overruled and exception taken. The witness 
then began his answer with, ^ ' My carpet-man came to me and 
told me there was something wrong in the carpet depart- 
ment. " This was followed with a statement of how he reached 
the conclusion that somebody in his employ who had as much 
intelligence as he had about the stock had been systematically 
stealing carpets from the house; that at first he didn't know 
whom to suspect, but that he subsequently learned that Cole 
had a key to the house, and that he then suspected that Cole, 
having the key and the intelligence, was the man who stole 
the carpets. The witness went on to relate other facts that 
had come to his knowledge, all pointing the finger of suspicion 
at Cole. In the answer of the witness to the question objected 
to, he stated facts which were clearly hearsay, tending to 
justify the suspicion declared as well as the arrest of the de- 
fendant. At the time the court ruled on the question, how- 
ever, it could not have been anticipated that the witness 
would state matters of hearsay, or would make an argumen- 
tative statement intermingled with declarations as to his sus- 
picions. Also, it must have taken considerable time for the 
witness to have thus delivered himself. It does not appear, 
however, that defendant's attorney interrupted him with any 
new objections or motion to strike out any portion of his state- 
ment. Nor was any such motion made at the conclusion of the 
answer. The question was asked, no doubt, to bring out a 
full reply to the question just previously asked by the de- 
fendant's attorney as to the reason why the witness had the 
defendant arrested. He might with propriety have answered 
that he caused the defendant to be arrested because the latter 
had denied in the presence of the former all knowledge of 
Burke; and this, no doubt, was the answer the attorney for 
the prosecution expected to elicit by the question. This must 
be so, because the previous testimony of the witness given on 
direct examination was to the effect that immediately upon 
this denial of defendant he (witness) had said to Ryan 
''There is nothing to do but to take hold of the prisoner." 



92 People v. Cole. [141 CaL 

The attorney asking the question objected to must have had in 
mind this previous testimony of the witness and desired to 
call attention to it as the real reason, or at least as an addi- 
tional reason, influencing the witness in ordering the arrest. 
There was nothing improper in this attempt to thus eall to 
the attention of the jury, as an additional valid reason for the 
arrest, a matter which did not involve any hearsay statement. 
And if nothing but the answer thus apparently sought had 
been elicited, we think no complaint would here be made. On 
a proper motion all the hearsay and argumentative matter 
might have been eliminated from the answer now complained 
of; and we doubt not that it would have been so eliminated 
had the necessary motion been made. If the defendant did 
not desire to have the answer stand as it was given he should 
have made some such motion, and thereby particularly in- 
voked the ruling of the court as to the objectionable matters. 
{O'Calligan v. Bode, 84 Cal. 489.) He will not be permitte<l 
to remain silent in the court below and object here for tho 
first time. As the record stands, there is really no ruling 
of the court that can be called erroneous. 
We advise that the judg:ment and order be affirmed. 

Chipman, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order are affirmed. 

Angellotti, J., Shaw, J,, Van Dyke, J. 

Hearing iu Bank denied. 



Nov. 1903.] Clabk v. Bbown. 93 

[Sac. No. 993. Department One. — Norember 21, 1908.] 

B. CLARK, Respondent, v. WILLIAM BROWN et al., De- 
fendants; BEST MANUFACTURING COMPANY, Ap- 
pellant 

LiXN FOB Waobs — ^Labobxbs on Thseshdyo MAOHnrs— Comt&aot with 
LsssEX — ^LiEM FOB Yalux. — ^Where the defendant who made the 
eontraet with laborers apon a threshing-machine was a lessee for 
the defendant appealing, who owned the maehine^ an objeetion that 
the appellant was not liable to a lien for the eontraet price, but 
only for the value of the work, is untenable, where the value of the 
work is alleged and found, and a lien is only given for the value 
found by the court. 

Id. — CONTBA.CT FOB SeBVIGES AND HOBSES — SegBSOATION OF SEBVICES.-^ 

The fact that a laborer made an entire contract with the lessee for 
personal services and horses at the rate of four dollars per day 
does not preclude lien upon the threshing-machine for the value 
of the personal services rendered, though no lien could be or was 
allowed for the work done by the horses. 

Id.— AssiONABEUTT OF LOBN. — The lien acquired by a laborer on a 
threshing-machine under the act of March 12, 1885, (Stats. 1885, 
p. 109,) is assignable. 

Id. — FOBSCLOSUBX of Lien — Costs aoainst Owneb DEFENDmo — 
Amount of Judgment. — The foreclosure in the superior court of the 
liens of laborers upon a threshing-machine is an action in equity, 
and costs were properly allowed therein against the owner of the 
machine, who was a necessary party defendant, and who appeared 
and made affirmative defenses against the claims of the plaintiff, 
notwithstanding the amount of the judgment rendered was less 
than three hundred dollars. 

Id. — Ck)NCUBBENT JuBiSDiOTiON. — In actions of this character, where the 
claim is for less than three hundred dollars, the superior court has 
concurrent jurisdiction with that of justices of the peace, and the 
plaintiff is entitled to costs, whether he seeks relief in one jurisdic- 
tion or the other. 

APPEAL from a judgment of the Sui>erior Court of San 
Joaquin County and from an order denying a new trial 
Edward I. Jones, Judge. 

The facts are stated in the opinion of the court 

J. B. Webster, for Appellant 

Charles De Legh, for Respondent 



94 Clark v. Brown. [141 Cal. 

SHAW, J. — ^This is an action to foreclose an alleged lien 
apon a threshing-machine, brought under the act of March 
12, 1885, providing a lien for the wages of persons employe<l 
as laborers on threshing-machines. (Stats. 1885, 109.) The 
complaint contains three counts, the first to recover for labor 
performed by the plaintiff, the other two upon claims assigned 
to the plaintiff by others who i>erformed work in connection 
with the machine. The appeal is taken by the Best Manu- 
facturing Company from the judgment and from an order 
denying its motion for a new trial. 

1. The threshing-machine in question was in the use and 
possession of William Brown at the time the work was done 
for which the liens are claimed, and in each case the work 
was done under a contract by the respective laborers with 
William Brown, to which contract the defendant Best Manu- 
facturing Company was not a party. The appellant daims 
to be the owner of the machine, and it appears from the evi- 
dence, although it is not expressly alleged either in the com- 
plaint or answer, that it is the owner of the machine, and 
that Brown was operating the same under a lease from the 
appellant. The first point urged is, that the appellant is not 
liable for a lien beyond the value of the work, and that the 
contract price is not conclusive on the question of value. 
The allegation in the case of the work by the plaintiff Clark 
is, that it was of the value of $122.77, upon which $41 had 
been paid, leaving due $81.77; as to the work of assignor 
Hawes, that the work was of the value of $96.25, of which 
$49.50 had been paid, leaving a balance of $46.75, and as to 
the work of McHenry, that it was of the value of $139.20, of 
which $60 had been paid, leaving $79.20 due. The court 
finds, upon sufficient evidence, that the work done by the re- 
spective parties for which they were entitled to liens was of 
the value of $108.25, for which sum judgment was given. 
Conceding, therefore, that the owner under the circumstances 
is liable only for the value of the work, there is no error, for 
the judgment is for the value as found by the court. 

2. Another point made is, that a part of the claims in- 
cluded in the complaint were for the services of horses be- 
longing to the plaintiff, for which the statute gives no lien. 
It must be conceded, of course, that no lien existed on the 
threshing-machine for the value of work done by horses upon 



Nov. 1903.] Clark v. Beown. 95 

the machine while engaged in threshing. No error in this 
respect, however, was committed by the conrt below, for the 
reason that the value of the work done by the horses was elim- 
inated from the judgment, which included only the amount 
due for the labor of the men. It appears that the work done 
by the plaintiff was under an entire contract for the services 
of himself and his horses, at the rate of four dollars per day. 
The court, however, found that the services of the plaintiff 
alone were worth two and one-half dollars per day, and gave 
judgment accordingly. The appellant contends that as the 
work was done under an entire contract, it cannot be segre- 
gated, and that by making his contract include the services 
of himself and his horses, he waived any right to a lien. 
The statute, however, provides that every person performing 
work upon any threshing-machine while engaged in threshin^^ 
shall have a lien upon the same to the extent of the value of 
his services. We can see no reason why the fact that a party 
makes an entire contract for the services of himself and his 
horses should deprive him of the right to lien for his own 
services where, as in this case, the amount thereof can be 
ascertained and distinguished from the amount due for the 
services of the horses, and we are therefore of the opinion 
that this point is not well taken. The same point arises with 
reference to the services of McHenry, one of the assignors of 
the plaintiff, and what we have said applies with equal force 
to that part of the case. 

3. The lien which a laborer acquires under this statute is 
assignable, and therefore the plaintiff by the assignment ac- 
quired the rights of McHenry and Hawes to the lien which 
tiiey possessed by reason of their labor upon the machine. 
This was so decided in Duncan v. Hawn, 104 Cal. 10. 

4. There was no error in giving judgment for costs against 
the defendant the Best Manufacturing Company. The plain- 
tiff was the owner of the lien upon the property belonging 
to the defendant, and this is an action to foreclose the lien. 
It is an action in equity, and under sections 1022 and 1025 
of the Code of Civil Procedure costs were properly given 
against necessary parties to the action, who appeared and 
made afi&rmative defenses against the claims of the plaintiff, 
notwithstanding the fact that the judgment was for less than 
three hundred dollars. In actions of this character, where 



96 Jones v. Board of Police Commissioners. [141 CaL 

the claim is for less than three hundred dollars, the superior 
court has concurrent jurisdiction with that of justices of the 
peace, and the plaintiff is entitled to costs, whether he seeks 
relief in one jurisdiction or the other. 
The judgment and order are affirmed. 

Angellotti, J., and Van Dyke, J., concurred. 



[8. F. No. S113. In Bank—November 83, 1903.] 

PATRICK J. JONES, Respondent, ▼. BOARD OP POLICE 
COMMISSIONERS OP CITY AND COUNTY OP SAN 
PRANCISCO et al.. Appellants. 

Mandamus — Bxtnstatemknt of Polioxkan— Statuts or LnaTA- 
TiONS — ^DxMUSBXB. — ^An application for a writ of mandamui is a 
Bpeeial proceeding of a civil nature, which is snbject to the rales 
which govern the limitation of actions. An application, therefore, 
to reinstate a policeman, which shows on its face that more than 
seven jears had elapsed after his dismissal before the petition was 
filed, is demurrable on the ground that it was barred bj the statute 
of limitations, whether it be deemed barred by subdivision 1 of 
section 338 of the Code of Civil Proeedure, or by section 848 of that 
code. 

In. — ^Laches. — ^The proceeding is also barred by laches. Courts will 
not allow parties to sleep upon their rights for so many years and 
then invoke the aid of this prerogative writ. 

APPEAL from a judgment of the Superior Court of the 
City and County of San Francisco. J. C. B. Hebbard, 
Judge. 

The facts are stated in the opinion. 

Franklin K Lane, City Attorney, for Appellants. 

William T. Baggett, and Arthur H. Barendt, for Respond- 
ent. 

COOPER, C. — This is a proceeding in mandamus for the 
purposes of compelling the board of police commissioners of 



Nov. 1903.] JoNiiS V. Board of Poliob Cohmissiokers. 97 

the city and county of San Francisco to admit petitioner to 
the office of policeman in the police department of said city. 
The petition was filed October 4, 1901, and alleges "That on 
the sixteenth day of April, A. D. 1894, the board of police 
commissioners of the city and county of San Francisco did 
unlawfully preclude this plaintiff from the use and enjoy- 
ment of his said office as such policeman, and did pretend 
to dismiss him therefrom, and did preyent him from perform- 
ing any of the duties of his said office. That ever since said 
sixteenth day of April, 1894, plaintiff and petitioner, by the 
said unlawful acts of said board of police commissioners, ha«i 
been and now is precluded from the use and enjoyment of 
his said office." 

Defendant demurred to the complaint upon the ground, 
among others, "that plaintiff's cause of action and right to 
a writ of mandate is barred by subdivision 1 of section 338 
of the Code of Civil Procedure, and by section 343 of the 
Code of Civil Procedure." The demurrer was overruled, 
and defendant failed to answer. Thereupon judgment was 
entered for petitioner as prayed. This appeal is from the 
judgment. The demurrer should have been sustained upon 
the ground that the right to the writ, if it ever existed, is 
barred by the statute. It was more than seven years after 
petitioner was dismissed and discharged before he filed his 
petition. It becomes immaterial to determine which par- 
ticular provision of the code bars this proceeding, because it 
w barred by either provision. The period that elapsed after 
petitioner's alleged rights accrued is longer than the time 
given for the commencing of an action by an individual un- 
der any provision of the code. Not only this, but it is barred 
by laches. Courts will not allow parties to sleep upon their 
rights for so many years and then invoke the aid of this pre- 
rogative writ. It has been said in some cases that the stat- 
ute of limitations is not applicable, strictly speaking, to a 
petition for a writ of mandate, but we think it is applicable 
under our Code of Civil Procedure. The provisions in re- 
gard to granting the writ of mandate are under part III of 
title I. Section 1109 under the same title, provides, "the 
provisions of part II of this code are applicable to, and con- 
stitute the rules of practice in the proceedings mentioned in 
thia title." Part n of the Code of Civil Procedure con- 
CXLL CW.— 7 



98 Jokes v. Board of Police CoAfMissioNERS. [141 CaL 

tains the provisions and sections upon the subject of limi- 
tation of actions, and is therefore applicable. Not only this, 
but the closing section in the title in regard to time of com- 
mencing action provides, **the word * action,' as used in this 
title, is to be construed, whenever it is necessary so to do, 
as including a special proceeding of a civil nature." (See. 
b63.) The application for a writ of mandate is a special 
proceeding of a civil nature. (Code Civ. Proc., sec. 23; 
also, part III, sees. 1063 et seq. ; People v. Board of Super- 
visors, 27 Cal. 655.) In Barnes v. Olide, 117 Cai. 1,^ it was 
held that an application for a writ of mandate to compel the 
trustees of a swamp-land district to levy a tax to pay certain 
warrants was barred by the statute of limitations. It was 
there said: ** Therefore, it is quite clear that not only under 
the general authorities, but under the provisions of our code, 
a proceeding like the one at bar in mandamus is subject to 
the rules which govern the limitations of actions.*' The rule 
as laid down in the above case is the rule in other jurisdic- 
tions (People V. Supervisors of Westchester, 12 Barb. 446; 
People V. French, 12 Abb. N. C. 156 ; Georges Creek Coal etc. 
Co. V. County Commrs,, 59 Md. 262; People v. Chapin, 104 
N. Y. 96), and so stated in the text-books. (Moses on Man- 
damus, p. 190; Merrill on Mandamus, sec. 314.) 

It follows that the judgment should be reversed, with di- 
rections to the court below to sustain the demurrer and dis- 
miss the proceeding. 

Haynes, C, and Gray, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment is reversed, with directions to the court below to sus- 
tain the demurrer and dismiss the proceeding. 

McFarland, J., Van Dyke, J., Shaw, J., 
Angellotti, J., Lorigan, J^ Beatty, C J. 



t59 Am. St. Bep. 150. 



Nov. 1903.] Union Collection Company v. Soulb. 99 



[8. F. No. 3470. Department One.— November 24, 1903.] 

UNION COLLECTION COMPANY, Respondent, v. A. C. 
SOULE, Appellant. 

Action on Notb — Statute of Limitations — Pendbnot of Insolvbnot 
Pbooeedinos — ^Dismissal — Statutoet Prohibition. — The pend- 
ency of inBolvencj proceedings instituted by the maker of a note, 
though subsequently dismissed^ operated, under section 62 of the In- 
solvency Act, and section 356 of the Code of Civil Procedure, as a 
8tat;utory prohibition to an action upon the note, and the period of 
sceh pendency and prohibition is not part of the time limited for 
the commencement of the action. 

APPEAL from a judgment of the Superior Court of the 
City and County of San Francisco. Frank J. Murasky, 
Judge. 

The facts are stated in the opinion. 

Robert Ash, for Appellant 

J. S. Reid, for Respondent. 

GRAY, C. — This is an action on a promissory note. The 
plaintiff obtained judgment, and the defendant Soule appeals 
from the same. The appeal from an order denying a new 
trial has been dismissed. 

The appellant's sole contention is, that the record shows 
without conflict that the note sued on was barred by the four- 
year statute of limitations at the time the suit was com- 
menced. The undisputed facts in that behalf, as they appear 
from the pleadings and findings, are as follows : The note sued 
on is dated March 16, 1893, and matured six months there- 
after. On the eleventh day of November, 1895, the appellant 
filed a petition, schedules, and inventory in insolvency, in 
conformity to the Insolvency Law of the state adopted in 
1895, and was thereupon duly adjudged an insolvent, and the 
usual order was entered as provided in said act staying all 
proceedings against him. Soule failed to apply to the court 
for a discharge from his debts, and thereafter, on March 16, 
1900, on motion of certain of Soule 's creditors, the said in- 
solvency proceeding was duly and regularly dismissed. Thi^ 
action was commenced on January 15, 1902, considerably less 



100 Union Collbotion Company v. Soulb. [141 CaL 

than four years after the note fell due, if we exclude the time 
during which the insolvency proceeding was pending, bat con- 
siderably more than four years thereafter, if we include that 
period. Section 62 of the Insolvent Act of 1895 (Stats. 1895. 
p. 152) provides: ''Pending proceedings by or against any 
person, copartnership, or corporation, no statute of limita- 
tions of this state shall run against a claim which in its na* 
ture is provable against the estate of the debtor." Sectioa 
356 of the Code of Civil Procedure provides : ** When the com- 
mencement of an action is stayed by injunction or statutory 
prohibition, the time of the continuance of the injunction 
or prohibition is not part of the time limited for the com- 
mencement of the action." 

The fact that the Insolvency Act authorizes the mainte- 
nance of suits against insolvents for certain purposes, and by 
leave of court first had, does not affect the rule laid down in 
the above statutes. **The theory of our statute of limita- 
tions is, that a creditor has four years (or other time, as the 
case may be) on any day of which he may, of his own volition, 
commence an action." (Hoff v. Funkenstein, 54 Cal. 233.) 
It is in accordance with the settled law of the state that the 
statute of limitations did not run during the period covered 
by the pendency of the insolvency proceedings. Excluding 
this period, it was less than four years after the note fell duo 
that the suit was commenced, and the cause of action was not 
barred. 

We advise that the judgment be affirmed. 

Haynes, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment is affirmed. Van Dyke, J., Angellotti, J., Shaw, J. 

Hearing in Bank denied. 



Nov. 1903.] McClobket v. Tdsbnby. 101 



[8. F. No. 3245. Department One.— November 24, 1903.] 

JOHN McCLOSKEY and ANN McCLOSKBY, AppeUanta. 
V. MARTIN TIERNEY, Executor, etc., Respondent. 

AssiGincsNT OF Bajyk ACCOUNT — ^DsLnncBT OF Book— Will. — An instru- 
ment executed bj a person about to die, a few days before his 
death, stating that "for services rendered, I, the undersigned, leave 
to Mrs. McCloak^, the balance of mj account with the German 
Savings and Loan Society," speeifjing the amount, together with 
the concurrent deliveiy to her of the bank-book showing the ae- 
eount referred to, evidences a present assignment of the bank ac- 
count, and not a disposition of a testamentary nature, to take ef- 
fect only at the death of the signer of the instrument. 

APPEAL from a judgment of the Superior Court of the 
City and County of San Francisco and from an order deny* 
ing a new trial. Frank H. Kerrigan, Judge. 

The facts are stated in the opinion. 

Finlay Cook, for Appellants. 

The circumstances under which the instrument was exe- 
cuted are to be considered, and the intention to transfer the 
bank account must govern. (Code Civ. Proc, sees. 1856, 
1860; Civ. Code, sees. 1625, 1639, 1640, 1643, 1647, 1649, 
1654; 1 Oreenleaf on Evidence, sees. 282 et seq., 297 et seq. ; 
2 Bncy. of Law, 2d ed., 287 et seq. ; Balfour v. Fresno etc. 
Co., 109 Cal. 221; Balfour v. Fresno etc. Co., 123 Cal. 395; 
Clarke v. lUtnsom, 50 Cal. 595; Boss v. Brusie, 64 Cal. 245; 
Jenny Lind Co. v. Bower, 11 Cal. 198 ; Altschvl v. San Fran- 
cisco etc. Assn., 43 Cal. 171; Truett v. Adams, 66 Cal. 218; 
Board of Educaiion v. Keenan, 55 Cal. 642 ; Piper v. True, 
86 Cal. 606; Saunders v. Clark, 29 CaL 304; Salmon v. WiU 
son, 41 CaL 595.) 

Sullivan & Sullivan^ and B. F. Mogan, for Respondent. 

The word '•leave" is testamentary. {Doe v. Thorley, 10 
East, 438; McKonkey's Appeal, 13 Pa. St 253; Mitchell v. 
Donohue, 100 Cal. 202.^) 

Its Am. St Bep. 297. 



102 McCloskby v. Tibbnst. [141 CaL 

SMITH, C. — This suit was brought against the German 
Savings and Loan Society to recover a balance of $738.85, 
alleged to be due to the defendant's testator, and to have 
been by him assigned to the plaintiflp Ann McCloskey. The 
money was paid into court by the bank, and upon its appli- 
cation, under section 386 of the Code of Civil Procedure, 
the present defendant was substituted for it. 

The main question in the case turns upon the construction 
of the written instrument offered by the plaintiff in proof if 
the alleged assignment, and excluded by the court, which is 
as follows: — 

'*San Prancisoo, Pebmaiy 4th, 1901. 

^'For services rendered, I, the undersigned, leave to Mrs. 
McCloskey the balance of my account with the (German Sav- 
ings and Loan Society, which amounts to date $789.85 (seven 
hundred and eighty-nine dollars and eighty-five cents). 

** Nicholas Murphy." 

This instrument was duly executed by Murphy a few days 
before his death, and, with the bank-book showing the account 
referred to, delivered by him to the plaintiff Mrs. McCloskey. 
It was excluded from evidence by the court on the ground 
that it was not a present assignment of the claim, but a dis- 
position of it to take effect on the death of Murphy, and there- 
fore of a testamentary nature. But we do not think this view 
of the case can be sustained. The language of the instrument 
imports a present disposition of the property for valuable 
consideration, and this construction is confirmed by the con- 
current delivery of the bank-book showing the account. The 
words used ("I . . . leave to Mrs. McCloskey,*' etc.) are not 
indeed the aptest to express the idea of an assignment; but 
m view of the impending death of the assignor, and the re- 
sulting sense of immediate or speedy departure under which 
he must have acted, they were not altogether inappropriate, 
and we do not think that the intention to assign can be 
doubted. The instrument must therefore be construed as a 
present assignment of the claim. (Civ. Code, sees. 1636, 
1637, 1643, 1654, 3541, and note to last section in Pomeroy's 
Edition. See Broom's Legal Maxims, 521, 657; Sprague V. 
Edwards, 48 Cal. 240.) 



Nov. 1903.] Newport Wharf etc. Co. v. Dkbw. 103 

It follows that the judgment and order appealed from 
should be reversed, and we so advise. 

HayneSy C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order appealed from are reversed. 

Van Dyke, J., Angellotti, J., Shaw, J. 



[L« A. No. 1107. Department Oiie.^Noyember 25, 1903.] 

NEWPORT WHARF AND LUMBER COMPANY, Appd- 
lant, V. H. L. DREW et al.. Respondents. 

State Hospital — Bi^lding of Waed — Notice or Matewalmen — ^Lia- 
bility OF Trustees — Interests and Costs. — The tniBtees of a 
state hospital, whose treasurer lawfully holds the eustodj of moneyB 
due to a contractor for the building of a ward, do not, bj joining 
in the answer of a bank which claimed title to the money bj assign- 
ment from the contractor, become liable to interest and costs at 
the suit of materialmen, who by notice of their claims to a particu- 
lar estimate were entitled thereto as against the bank, where no 
claim for interest was made in the complaint, and the trustees were 
enjoined from making payment to the bank, and they did not make 
any adverse claim to the money in litigation, but were willing to 
obey any order of the court in the action in relation thereto. 

Id. — Payment into Coukt — Duty op Public Tkeasubeb. — ^A public 
treasurer is not obliged, in case of conflicting claims to money in 
his hands, to pay it into court in order to avoid interest and costs. 
His office makes him trustee to hold the money until he can pay 
it out under lawful authority. 

Id. — ^Liability of Public Trustees — ^Discretion — Good Faith. — ^The 
trustees of the state hospital are public officers, who are guardians 
of the public money belonging thereto. They have certain discre- 
tionary powers, and should not be made answerable for injury or 
errors of judgment when acting in good faith, within the scope 
of their authority, without malice, corruption, or sinister motives. 

APPEAL from an order of the Superior Conrt of San Ber- 
nardino County granting a new trial. H. L. Campbell, 
Judge. 



104 Nkwpobt Whakp ipto. Co. v. Drew. [141 CaL 

The facts are stated in the opinion and in 125 CaL 585, 
therein cited. 

John S. Chapman, and James O. Scarborongh, for Appel- 
lant 

The trofitees were liable for interest and costs because they 
did not pay the money into court and contested plaintiff's 
claim. (Code Civ, Proc., sec. 386; Civ. Code, sees. 1917, 3287; 
3 Pomeroy's Equity Jurisprudence, sees. 1320, 1325; 16 Am. 
& Eng. Ency. of Law, 2d ed., 1012; 11 Am. & Eng. Eney. of 
Law, 2d ed., 477; Pfisier v. Wade, 69 CaL 133; De Camp L. 
Co. V. Tolhursi, 99 CaL 631 ; Brown v. Campbell, 110 Cal. 
644; Converse v. Ware 8av. Bank, 152 Mass. 407; Bevier v. 
Shoomaker, 29 How. Pr. 411; Spring v. 8. C. In$. Co., 8 
Wheat. 270-293; Powers v. May, 123 CaL 147.) 

Otis & Oregg, for Respondents. 

Money held in a public treasury is held for the benefit of 
the party adjudged entitled thereto, and need not be paid into 
court, and the treasurer cannot be charged with interest until 
he has failed to pay it out as directed. (United States v. 
Curtis, 100 U. S. 119.) A trustee is not chargeable with mor« 
than he has received of the trust estate, unless there is gross 
negligence or willful default. (Osgood v. Franklin, 2 Johiu. 
Ch. 1 ;* Wheeler v. Bolton, 92 Cal. 159.) Costs are not usual- 
ly allowed against a public officer. (5 Am. & Eng. Ency. of 
Plead. & Prac, pp. 152, 153.) 

COOPER, C. — This case has been here before, and the facts 
are there fully stated, 125 Cal. 585. It is a contest between 
plaintiff, arising by reason of material furnished and used m 
building a ward to the Southern California State Hospital, 
as to certain amounts that became due the contractor under 
the contract, and the Farmers' Exchange Bank, one of the 
defendants, to whom the contractors had assigned the install- 
ments in contest. 

The other defendants are members of the board of trustees 
of the asylum. The case originally involved the amount that 
became due to the contractors under the eighth estimate. 



17 Am. Deo. 5ia. 



Nov. 1903.] Newport Whabf bto. Co. v. Dkbw. 105 

$2,814.75; the ninth estimate, $584.77; and the tenth esti- 
mate, $2,579.33. 

It was held on the former appeal that the plaintiff, by vir- 
tue of a notice g^i^en to the trostees before payment became 
due, was entitled to the amount of the tenth estimate, but 
that the defendant bank had acquired title to the amount due 
under the eighth and ninth estimates, by virtue of prior as- 
signment by the contractors. This became the law of the 
case, and is not here called in question. After the former ap- 
I>eal upon the case being remanded to the lower court, a new 
trial was had. Upon such trial the sole contest was as to 
whether or not plaintiff was entitled to interest upon the 
amount of the tenth estimate, from May 20, 1895, the day it 
gave notice to the trustees, to December 11, 1899, the day tlie 
trustees paid the money to the derk of the court to abide the 
final result of the suit, the amount of such interest bein^T 
$822.50. The court below found that the defendants, trus- 
tees, ''have joined with, aided, and assisted the defendant 
bank in resisting and contesting plaintiff's claim in every 
stage of this case, and that they have never occupied the posi- 
tion of disinterested stakeholders until December 11, 1899," 
when they deposited with the clerk of the court the amount 
of the tenth estimate. The court, upon said finding, con- 
cluded that the plaintiff was entitled to a judgment against 
the trustees for the amount of said interest and for costs, and 
judgment was accordingly entered. Defendants made a mo- 
tion for a new trial upon a statement of the case, and the 
court below was convinced that it was in error in giving judg- 
ment for such interest and costs, and made an order granting 
defendants, trustees, a new trial. This apx>eal is from the 
order so made, and the only question is as to the interest and 
costs for which judgment was given against said trustees. 

We think the trustees were not liable for interest or costs, 
and that the court properly granted a new trial. The trustees 
are in charge of public moneys to be expended for lawful 
purposes, and as provided by statute for the care of the insane 
and inebriate wards of the state. In the course of their 
duties they let the contract for building the ward to the asy- 
lum in pursuance of the appropriation made by the legisla- 
ture therefor. They were met by notices and conflicting 
claims as to the eighth, ninth, and tenth estimates that had 
become due under the contract The attorney for plaintiff 



106 Newport Whaep etc. Co. v. Dbbw. [141 CaL 

appeared before the trustees and desired them to take some 
action as to the payment of the oonflicting claims, so that 
the matter might be determined in court. The trustees re- 
ferred the matter to their attorney, who advised them that tha 
bank was entitled to all the moneys due under these estimates. 
They accordingly made an order that the money be paid to 
the bank. 

Plaintiff immediately filed its complaint, in which it prayed 
that the trustees be enjoined and restrained from paying the 
money to any one until the rights of the plaintiff and of the 
bank to the money should be determined, and that it be ad- 
judged that plaintiff is entitled to the same, and that the said 
trustees and their treasurer be directed to pay the same to 
plaintiff. 

No claim as to interest was made in the complaint as so 
filed. The court thereupon, on plaintiff's request at the 
commencement of the case, granted an injunction directed to 
the trustees, commanding them, and each of them, to "refrain 
and desist from paying to any one any of the moneys due and 
unpaid from the said trustees upon their contract." This in- 
junction was in force during all the time for which interest 
is claimed. 

The defendants, trustees, joined with the defendant bank 
in the answer to the complaint, — ^that is, the answer was made 
by defendant as a joint answer signed by ^'Attomejrs for 
defendants." But in this answer nothing was claimed by the 
trustees in addition to the rights claimed by the bank under 
the assignments. The trustees did not claim the money, nor 
any adverse interest in it. It does not appear that they 
aided or assisted the bank in any other way than by joining 
in said answer. 

After the action was commenced, and before the second 
trial, the term of the trustees who were such at the first trial 
had expired, and the present trustees had been appointed, 
and had qualified and assumed office. The present trustees, 
in December, 1899, filed an amended and supplemental an- 
swer, setting forth the fact that the term of the trustees who 
were such when the action was commenced had expired, and 
the fact of their own appointment. In this supplemental 
answer the trustees alleged that they did not claim, and 
never had claimed, any interest in the moneys in contest, and 
further alleged that they ''are now and at all times have 



Nov. 1903.] Newport Whabf etc. Co. v. Drew. 107 

been ready and willing to obey any order of the court in the 
premises/' and to pay the moneys to whichever of the parties 
the court should adjudge to be entitled thereto. At the sec- 
ond trial it was conceded by plaintiff's attorney in open court 
that the trustees in the matter of ordering the moneys paid 
to the bank were '' acting as a board and deciding between 
two claimants to this money, without any feeling of bias or 
prejudice in favor or against one side or the other." The 
attorney further stated: "I will say that I do not intend to 
impugn their good faith; I don't intend to impugn the gooti 
faith of the trustees." 

It is said in appellant's brief: ''If they [the trustees] had 
deposited the money in court and disclaimed any interest in 
the money, or had merely disclaimed and expressed their will- 
ingness to pay the money over to whomsoever the court found 
was entitled to it, they would not have been liable for in- 
terest or costs." That is precisely what the present trustees 
did. The trustees who were such at the time of the first trial 
did not in express words disclaim any interest in the moneys, 
but they did not claim any interest therein. They joined with 
the bank in the answer, but the only question raised related 
to the title to the moneys as between the plaintiff and the 
bank. The bank could have raised all such questions without 
the necessity of the trustees joining in the answer. It would 
have been proper and better practice for the trustees in the 
first place to have disclaimed, and to have filed a separate 
answer ; but as they did not do so, we do not think that toe 
this reason alone they subjected themselves to interest an«1 
costs. It may have been, and probably was, the fault of their 
attorneys that such course was not taken. The moneys were 
kept in their possession by the express order of the court. If 
it had been paid into court, the plaintiff would not have been 
entitled to the possession of it any sooner, nor would it have 
been entitled to interest. The money was in the hands of 
the treasurer of the asylum. A public treasurer is not 
obliged, in case of conflicting claims to money in his hands, to 
pay it into court to avoid costs and interest. His office makes 
him trustee to hold the money until he can pay it out under 
lawful authority. 

The principle controlling this case is stated by the supreme 
court of the United States in United States v. Denver, 106 
U. S. 536, where it was held that interest could not be re- 



108 Newport Wharp etc. Co. v. Drew. [141 Cal. 

covered against the assistant paymaster of the United States. 
It is there said: **That principle is that where an officer of the 
government has money committed to his charge, with the 
duty of disbursing or pajnng it out, as occasion may arise, he 
cannot be charged with interest on such money until it is 
shown that he has failed to pay when such occasion required 
him to do so, or has failed to account when required by the 
government, or to pay over or transfer the money on some law- 
ful order. The mere proof that the money was received by 
him raises no obligation to pay interest in the absence of soma 
evidence of conversion or some refusal to respond to a law- 
ful requirement." In this case there is no claim of a con- 
version. There is no claim of prejudice or hostile action by 
the trustees. It seems they were right as to the title to the 
mone3rs due under the eighth and ninth estimates. This court 
decided in favor of the plaintiff as to the tenth estimate. That 
decision they are ready and willing to obey. Public officers 
occupying the position of trustees are the guardians of the 
public money. They have certain discretionary powers, and 
should not be made answerable for any injury when acting 
in good faith within the scope of their authority and not in- 
fluenced by malice, corruption, or sinister motives. They 
should not be punished for errors of judgment when their 
motives are pure and untainted with fraud or malice or will- 
ful wrong. 
It follows that the order should be affirmed. 

Haynes, C, and Qray, C, concurred. 

For the reasons given in the foregoing opinion the order is 
affirmed- Angellotti, J., Shaw, J., Van Dyke, J. 



Not. 1903.] Jamibok i;. Htdh. 109 



[8. F. No. 8380. Department One.— Norember 87, 1908.] 

H. H. JAMISON, AppeUant, ▼. CATHABINE HYDE, Be- 

spondent. 



/8 Bau of Bxal Estatb— Oommissioks — Administbation Balb 
— 0KATO1B or Feauds — ^Amknbiixht of Amswx»— Chanoi of Aj>- 
icnsiDN TO Denial. — An answer to an aetion by a real estate agent 
to reeorer eonunieeione for the sale of real estate, whieh admitted 
the contrast, and pleaded that it was made by her as administratriz 
•f the estate of a deceased person, and not otherwise, and which 
also alleged for a separate defense that the contract was oral, and 
was Yoid under the statute of frauds, speeiallj pleaded, does not 
admit the validity of the contract; and it was not an abuse of die- 
eretion to allow an amendment at the trial of the first part of the 
answer so as to deny the eodstenee of the contract, and thus remove 
a possible ambiguity in the answer. 

Id. — ^Adiossibilitt of Coktbact — Plea of Btatdte of Fbauds. — The 
answer admitting the contract alleged did not waive the protection 
of the statute of frauds, where the contract was expressly alleged 
to have been oral, and the statute of frauds was specially pleaded. 
In such case the rights of the defendant stood as if no admission 
had been made or amendment allowed. 

Id. — ^Bttbden of Pboof — Nonsxht. — The burden of proof under the or- 
iginal answer was upon the plaintiff to prove a contract in writing, 
and where no such proof was made, and after amendment of the 
answer the plaintiff was allowed an opportunity to introduce fur- 
ther proof, but produced none, a nonsuit was properly granted. 

1j>4 — Bbasonable Yalub of Bzevicbb not Bboovbbablk. — ^Where there 
was no contract in writing for the employment of the plaintiff to 
sell the real estate, plaintiff was not entitled to recover the reason- 
able value of his services in selling it. 

APPEAL from a judgment of the Superior Court of Ala- 
meda County. S. P. Hall, Judge. 

The facts are stated in the opinion. 

B. McFadden, for Appellant. 

The contract having been fully performed by the plaintiff, 
it is taken out of the statute of frauds. {Hoffman v. Fett, 
39 Cal. 109; Bates v. Bdbcock, 95 Cal. 479, 488 ;i Coward v. 
Clinton, 79 CaL 23; NUand v. Murphy, 73 Wis. 326; Breaux 



189 Am. St Bep. 183. 



110 Jaiobom v. Htds. [141 CaL 

▼, Simon, 132 N. T. 280 ;i Tawley v. Moore, 30 Ohio St. 185.") 
The amendment of the answer changing an express admission 
of the contract to a denial thereof was not **in furtherance 
of justice." (Code Civ. Proc, sec. 473.) Pacts alleged in 
the complaint and admitted in the answer become admitted 
facts in the case (Merguire v. O'DonneU, 103 Cal. 50), and arc 
conclusive against the defendant (Blankman v. VdUejo, 15 
Cal. 638, 645; Doll v. Good, 38 Cal. 287), and no evidence 
thereof is required. {McOowan v. McDonald, 111 Cal. 57;* 
McDonald v. Poole, 113 Cal. 437; Plass v. Plass, 121 CaL 
131.) 

J. E. McElroy, for Besx>ondent 

The contract being oral, the plaintiff was not entitled to 
recover. {McCarthy v. Loupe, 62 Cal. 299; Myres v. Sur- 
ryhne, 67 Cal. 657; Zeimer v. Antisell, 75 Cal. 509; Toomey 
V. Dunphy, 86 Cal. 639; Piatt v. Butcher, 112 Cal. 634; Mc- 
Oeary v. Satchwell, 129 Cal. 389; McPhail v. Buell, 87 Cal. 
115; Shanklin v. Hall, 100 Cal. 26.) The amendment of the 
answer was in the discretion of the court. (10 Am. & Eng. 
Ency. of Plead. & Prac, 518; Crosby v. Clark, 132 Cal. 1; 
UcDougald v. Hulet, 132 Cal. 154; Palace Hardware Co. v. 
Smith, 134 Cal. 351; Kirstein v. Madden, 38 Cal. 163; Dom 
V. Baker, 96 Cal. 206.) Appellant was not prejudiced by the 
amendment, and the allowance cannot be ground for reversal. 
{Oreen v. Burr, 131 Cal. 236; Shadburne v. Daly, 76 Cal. 
355; Beronio v. Southern Pacific Co., 86 Cal. 415;* Bulwer 
Con. M, Co. V. Standard Con, M. Co., 83 Cal. 613; Southern 
Pacific Co. V. Purcell, 77 Cal. 69.) 

GRAY, C. — The complaint alleges that one Snyder is a 
real-estate agent and broker, and sets forth a cause of action 
in the first count on a contract for commissions on a sale of 
real estate for defendant by said Snyder. In the second 
count of the complaint a cause of action is alleged ''on ac- 
count of services of the value of $562.50 theretofore and with- 
in two years next last past rendered by him (said Snyder) 
for said defendant at her special instance and request.'' 
Plaintiff sues as the assignee of Snyder. The defendant in 



1 28 Am. 8t. Bep. 670, and note. 1 62 Am. St. Bep. 149. 
t27 Am. Itep. 434. «21 Am. St. Bep. 67. 



Nov. 1903.] Jamison v. Htdb. Ill 

her first amended answer admitted the oontract with Snyder, 
but averred that the same was made by her as ** administra- 
trix of the estate of Maurice Hyde, deceased, and in no other 
capacity and not otherwise." Defendant also alleged as a 
separate defense that the contract of employment of Snyder 
set out in the complaint was made orally and not in writing, 
and that the same ''is barred and invcdid by the provisions 
of subdivision 6 of section 1624 of the Civil Code of the state 
of California." 

The case went to trial on the issues thus made by the first 
amended answer. The plaintiff seems to have assumed the 
burden of showing that the contract of employment was in 
writing, for upon the trial he introduced in evidence a receipt 
signed by defendant's attorney in the estate referred to, a re- 
port of a sale of real estate made in the matter of said estate, 
and a check drawn by the purchaser at said sale. These 
documents, the appellant now urges, constitute a memoran- 
dum sufficient to satisfy the statute of frauds pleaded. We 
therefore presume that they were introduced for that purpose 
upon the trial. We can see no other possible use for them. 
After the introduction of the foregoing documents the plain- 
tiff called Snyder as a witness, who testified to the reasonable 
value of his services in making the sale, and placed in evi- 
dence a written assignment of his claim to plaintiff. There- 
upon plaintiff rested his case, and the defendant immediately 
moved to be permitted to amend her amended answer by 
changing the admission of the contract of employment into 
a denial of the same. Against the objection and exception 
of plaintiff, defendant was allowed thus to amend her answer. 
The court then informed the plaintiff that he might introduce 
any further evidence he might think necessary. But plaintiff 
X>ut in no further evidence, and the defendant thereupon 
moved for a nonsuit on the grounds that ''plaintiff has not 
made out a case against the defendant," that the contract 
of employment set forth in the complaint is not supported by 
any competent evidence; "and also that the case is one viola- 
tive of subdivision 6 of section 1624 of the Civil Code." The 
nonsuit was granted and judgment in defendant's favor ac- 
cordingly rendered. 

Plaintiff appeals from the judgment, and the points urged 
by him are two in number. He says that it was not in fur- 
therance of justice, and was an abuse of discretion to allow 



112 Jamibok t;. Htds. [141 CaL 

the last amendment to the answer, and that the court erred in 
granting the nonsuit. 

The answer as it stood before the final amendment to it 
did not admit the validity of the contract employing Snyder, 
as appellant seems to assume, but, on the contrary, it admitted 
that such an oral contract was entered into, but pleaded that 
the same was invalid because not in writing, and instead of 
waiving the statute of frauds, specially pleaded it, and there- 
by claimed the benefit of it. It is well said in Burt v. WUson. 
28 Cal. 638,^ that ''if a defendant sought to be charged upon a 
contract within the statute of frauds, admits the contract in 
his answer, and does not daim the benefit of the statute, he ia 
considered as waiving its protection and as furnishing by his 
answer the very proof which the statute requires. But if the 
admission is coupled with a claim to the protection of the stat- 
ute, the rights of the party stand as though the admission had 
not been made (2 Story's Equity Jurisprudence, sec. 757).'* 
The last amendment to the answer, then, was not of much im- 
portance, as defendant's real defense was the statute of 
frauds, and she could have had the full benefit of this defense, 
and was entitled to the nonsuit without the final amendment 
to her answer, because the defendant had failed to show any 
valid contract of employment, there being no reference to any 
employment or agreement for commissions or other compen- 
sation in any of the writings introduced in evidence by him. 
It is true that it was not necessary that plaintiff should allege 
in his complaint that the contract was in writing. It would 
be presumed to be in writing from the allegation that such a 
contract was made, but when the plaintiff came to his proofs 
his assumption that the burden was on him, the statute being 
pleaded, not only to show a contract but a valid contract, was 
undoubtedly correct. And to do this he must show that the 
contract of employment was in writing. (Browne on Statute 
of Frauds, 5th ed., sec. 535.) This he failed to do, and there 
being no admission of a valid contract, but a special plea that 
the contract relied on was invalid, the nonsuit was properly 
granted, on the ground of the statute of frauds relied on by 
defendant in her answer. There was neither error nor im- 
propriety in the action of the court in allowing the final 
amendment to the answer, for while the nonsuit could with 
propriety have been granted without the amendment and the 

187 Am. Dee. 142. 



Not. 1903.] People v. McDanosls. 113 

amendment was perhai)s not strictly necessary, yet there was 
a possible ambiguity in the answer which could be and was 
obviated by the amendment. The court should always be lib- 
eral in allowing amendments which may remove a possible 
ambiguity in a pleading, and we see no abuse of discretion in 
this instance. 

There being no contract of employment in writing, it is 
clear also that plaintiff is not entitled to recover the reason- 
able value of the services under the second count of his com- 
plaint. This question has long been settled by the decisions 
of this court. (McCarthy v. Loupe, 62 Cal. 299 ; Myres v. 
Surrykne, 67 Cal. 657; McOeary v. CatchweU, 129 Cal. 389.) 

We advise that the judgment be affirmed. 

Cooper, C, and Smith, C, concurred. 

For the reasons given in the for^^oing opinion the judg- 
ment appealed from is afflimed. 

Van Dyke, J.. Shaw, J., Angellotti, J. 



[Crim. No. 094. Department Two.— November 8S, 1908.] 

TEE PEOPLE, Respondent, v. SAMUEL MoDANIELS, 

Appellant. 

Cbdonal La.w— Honoir to Bkt Asn>x iNvoaicATioxr — Bionatubx to 
OoxPLAiMT — Mabk — Attestation — Jusat or Jusnos.— Upon a 
motion to Bet aside an information for insnffieieney of the signa^ 
tare to the eomplaint for arreet of the defendant, a signature by 
the mark of the eomplainant, made after his initials and before his 
somame, aeeompanied by the jurat of the justice of the peaee that 
the eomphnint was subseribed and sworn to before him, will be 
deemed suiBeient. It win be presumed that the name of the com- 
plainant, written near the mark, was written hy the justice; and 
his signature to the jurat was a suf&eient attestation of the mark. 

APPEAL from a judgment of the Superior Court of Fres- 
no County and from en order denying a new triaL George 
E. Church, Judge. 

OXTiT. CU —a 



114 Pboplb v. McDANiKLa. [141 Cat 



The facts are stated in the opinion. 

S. J. Hinds, for Appellant 

U. S. Webb, Attorney-General, and C. N. Poet, Assistant 
Attorney-General, for Respondent. 

GRAY, C. — ^Defendant appeals from a judgment convict- 
ing him of burglary in the second degree, and from an order 
denying him a new triaL 

In the court below the appellant moved to set aside the in- 
formation on the ground that he had not been legally com- 
mitted by a magistrate. The point made upon this motion 
WBS, that the original complaint filed in the justice's court 
as a foundation for a warrant of arrest and a preliminary 
examination before the magistrate was not subscribed iu 
proper form by the complaining witness. In support of the 
motion nothing seems to have been introduced in evidence 
except the original complaint, a copy of which is brought to 
this court in a bill of exceptions. The complaint, as appears 
from this copy, is in the form of an affidavit, and begins with 
'^ Personally appeared before me this ninth day of November. 
1902, B. H. Brown, of Squaw Valley, in the county of Fres- 
no, who, first being duly sworn, complains and accuses Samuei 
McDaniels of the crime of burglary, committed as follows:'* 
and then follows a sufficient charge of burglary against the 
defendant, and a prayer for a warrant for the arrest of Mc- 
Daniels, **and that he may be dealt with according to law." 
The complaint is signed immediately following this prayer 

as follows: **B. H. X Brown," and immediately following 

marie 
this is the usual jurat, "Subscribed and sworn to before m^ 
this 9th day of November, A. D. 1902. 

"C. P. WALTON, 
"Justice of the Peace Seventh Township, County of Fresno.'* 

It is urged that this was not a signing of the complaint by 
the complaining witness within the meaning of section 7 of the 
Penal Code. Waiving the question as to whether or not it is 
proper on this appeal to consider the question of the suffi- 
ciency of the original complaint^ we are of opinion that the 



Nov. 1903.] Peopuc v. McDANiELa 115 



objection made to it is not well taken. Whether the justice 
of the peace who signed the jurat to the affidavit also wrote 
the name of the complainant near his mark could have been 
and was no doubt ascertained by the trial court on an inspec- 
tion of the original a£Sdavit and a comparison of the hand- 
writing in the two names. From the fact that the justice 
certifies that the affidavit was subscribed before him, he wiJl 
presume that the statute was complied with, and that the 
justice wrote the name of the complainant where it appears 
at the end of the complaint. Error must be made to appear 
by the party alleging it, and we are permitted to indulge all 
reasonable presumptions in the absence of a contrary showing 
to uphold the regularity of the ruling of the court below. 

The name of the subscribing witness having been written 
by the justice near the mark, all that was left for the latter to 
do under section 7 of the Penal Code was to write his own 
name as a witness. This he did when he appended his auto- 
graph to the jurat. The language of the jurat, '^ Sub- 
scribed," etc., ** before me," is evidence of that fact. It is 
not necessary that he should write the word '' witnessed," 
— any equivalent expression would serve as well. Nor was it 
necessary that he should write his name twice. One signature 
could and did witness both the previous signature and the 
jurat. No reason is suggested, and we cannot see any reason 
why the officer taking the affidavit should not be permitted 
also to witness the mark or other signature of the affiant. In- 
deed, it would seem that the primary object and purpose ot 
the signature of the officer to the jurat is to witness the sig- 
nature of the affiant to the affidavit. It is not any the less a 
witnessing because the affiiant has merely made his mark. 
There can be no sense or reason in his witnessing it more than 
once. We think this view is upheld in In re OuUfayle, 96 
Cal. 598. In that case the decedent signed a will with his 
mark. Following this was the word ** witnesses," followed 
by the signatures of three witnesses. These three signatures 
seem to have been treated without question as witnessing 
both the will and the mark of the testator and making of 
the latter a proper signature under the provisions of section 
14 of the Civil Code, which is substantially the same as sec- 
tion 7 of the Penal Code in this respect. 



116 Katz v. Waldnshaw. [141 CaL 

The motion to set aside the information waa properly de- 
nied. 

We advise that the judgment and order be affirmed. 

Cooper, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order are affirmed. 

McFarlandy J., Lorigan, J., Henshaw, J. 



[L. A. No. 967. In Bank.— November 28, 1903.] 

LEAH J. KATZ, Executrix, etc., et al., Appellants, v. MAB- 
GARET D. WALKINSHAW, Respondent. 

Watek-Bights — Peroolatino Waters — Artesian Bei;t — Bipaxiak 
Bights. — An underground body of water lying in an artesian belt, 
which does not flow in anj defined stream, but is produced bj per- 
eolation through saturated soil, and is pressed forward by water 
accumulating from ravines, canyons, and streams above, pressing 
down into the soil by percolation, is not a watercourse, and is not 
governed by the law of riparian rights. 

Id.— Bights or Owners ot Peroolatino Water—Beasonable Use— In- 
terference WITH Percolation. — ^Each owner of soil lying in a belt 
which becomes saturated vrith percolating water is entitled to a 

reasonable use thereof on his own land, notwithstanding such rea- 
sonable use may interfere with water percolation in his neighbors' 
soil; but he has no right to injure his neighbors by an unreason- 
able diversion of the water percolating in the belt for the purpose 
of sale or carriage to distant lands. 

Id. — Maxim Applicable. — The maxim, 8%e utere tuo ut aUenwm non 
laedas, is applicable as between adjoining users af pereolating 
water, whenever justice requires its application. 

Id. — ^Diversidn tbom Artesian Belt vob Sale— iNjimonoir. — ^The 
owners of artesian wells sunk in as artesian belt of pereolating 
water, the waters from which are necessary for domestic use and 
irrigation of their lands, on which are growing trees, vines, 
shrubbery, and other plants of great value, are entitled to an injunc- 
tion to restrain the diversion of the water percolating in the arte- 
sian belt, by an owner of land situated in the belt, for the purpose 
of conveying the same to distant lands for sale, to the irreparable 
injury of the plaintiffs. 

Td. — Plbading — Subterranean Stream — ^Injury to Artesian Wslia— > 
-aRjRpLuSAOS. — ^Where the complaint for the injunction stated ia 
substance that plaintiffs had wells in their respective tracts, from 
which water flowed to the surface of the ground, which was neces- 
sary for domestie use and irrigation of Uieir lands, and that tlia 



Nov. 1903.] Katz v. Walkinshaw. 117 

defendant by means of wells and excavations on ber own lands 
drew tbe waters from plaintiffs' lands and conveyed them to dis- 
tant lands, it states a cause of action for an injunction to restrain 
the diversion of percolating water; and an averment that the diver- 
sion was from an underground stream may be regarded as surplus- 
age. 

Id. — ^EviDZNGB — IicPRom Nonsuit. — ^Where the evidence supported the 
cause of action for wrongful diversion of percolating water from 
the lands of plaintiffs to their irreparable injury, a nonsuit should 
not have been granted, though the allegation of diversion from a 
subterranean stream was not proved. 

Id. — ^Appuoabiuty of Common Law — ^Vabyino Conditions— Cessa- 
tion or BuLE. — Such parts of the common law of England as are 
not adapted to our condition, form no part of the law of this state. 
The common law, by its own principle, adapts itself to varying con- 
ditions, and modifies its rules so as to subserve the ends of justice 
under different circumstances, and recognizes the principle em- 
bodied in section 3510 of the Civil Code, that "when the reason of 
a rule ceases, so should the rule.'' 

Id. — BuLE AS TO PsaooLATiNO Water Inapplicable. — The common-law 
rule that percolating water belongs unqualified to the owner of 
the soil, and that he has the absolute right to extract and sell it, 
is not applicable to the conditions existing in a large part of this 
state, where artificial irrigation is essential to agriculture, and 
artesian weUs in percolating belts are necessarily used for that pur- 
pose. 

Id. — ^DimciTLTiES in Pbeventino Divei^ion. — The difficulties that the 
courts win meet in securing persons necessarily using percohnting 
water for irrigation by means of artesian wells from the infliction 
of great wrong and injustice by its diversion, if property right 
therein is recognized, cannot justify the court in abandoning the 
task as impossible. The courts can protect this particular species 
of property in water as effectually as water-rights of any other 
description. 

Id.^ — ^BuLES Afpuoable — ^Peiobitt— CoBBBLATiyx Bights — Injunctions. 
— ^The rules respecting priority of appropriation and correlative 
rights in regard to the appropriation and use of percolating water 
Indnde the right to appropriate any surplus not needed for use 
1^ well-owners on their lands, and an equitable adjustment of dis- 
putes between overlying landowners, where the supply is insufScient 
for all, and proper rules relative to injunctions and the remedy at 
law should be applied to the solution of questions arising in the 
courts as to such waters. 

APPEAL from a judgment of the Superior Gonrt of San 
Bernardino County. John L. Campbell, Judge. 

The main facts are stated in the opinion of the court on the 
original hearing in Bank. Further facts are stated in the 
opinion of the court on rehearinfi:. 



118 Katz v. Waldnshaw. [141 Cal. 

0. C. UaskeU, Rolfe ft Rolfe, and H. C. Bolfe, for Appel- 
lants. 

One cannot divert surface, or underground, or percolating 
water to the injury of another, unless it is done to protect 
or benefit his own land. He cannot conduct it to a distance 
on other lands or divert it so as to injure his neighbor's land. 
(Case V. Hoffman, 84 Wis. 438 ;* Gould on Waters, 263; Bos- 
sett V. Salishury Mfg. Co., 43 N. H. 569 ;• Sweet v. Cutter, 50 
N. H. 439 ;» Bartlett v. O'Connor, (Cal.) 36 Pac. Rep. 513; 
Wheatley v. Baugh, 25 Pa. St. 528 ;* Herriman Irr. Co. v. But- 
terfield Min. etc. Co., 19 Utah, 453; Smith v. City of Brook- 
lyn, 18 App. Div. 340; 46 N. T. Supp. 147; ForbeU v. City 
of New York, 56 N. T. Supp. 790; 164 N. T. 622,») 

G. H. Gould, Amicus Curiae, also for Appellants. 

Percolating waters cannot be taken away from a soil-owner 
who has a beneficial use of them to his injury without bene- 
ficial use on the land of the taker. {City of Los Angeles v. 
Pomeroy, 124 Cal. 621, 644; Hanson v. McCue, 42 Cal. 303.*) 
Many equities in i>ercolating water must be recognized and 
protected, and the first step toward a clear view of the sub- 
ject should be in the direction of abolishing an antiquated 
and misleading formula. 

Byron Waters, for Eesjwndent; B. B. Houghton, for River- 
side Water Company; E. W. Freeman, for Temescal Water 
Company, John E. Daly, and Henry J. Stevens, for Glendora- 
Azusa Water Company; Lucius K. Chase, for Corona City 
Water Company; Henry J. Stevens, for Citrus Belt Water 
Company ; C. H. Wilson, for Corona Irrigation Company ; M. 
B. Kellogg, for Gage Canal Company; Page, McCutchen, 
Harding & Knight, for Contra Costa Water Company; 
Houghton & Houghton, for Miller & Lux and Frederick Cox, 
Frank H. Short, Otis & Gregg, Howard Surr, Piatt & Bayno, 
and Henley C. Booth, City Attorney of Santa Barbara, 
Amid Curiae, also for Bespondent. 

The plaintiff can only recover on the cause of action al- 
leged, which is for diversion of a subterranean stream, and 
not for diversion of percolating water. A plaintiff cannot 



1 36 Am. St. Rep. 987. « 64 Am. Dee. 721, and note. 

tS2 Am. Dee. 179. 179 Am. 8t. Bep. 666. 

t9 Am. Bep. 276, and note. • 10 Am. Sep. 299. 



Nov. 1903.] Katz V, Walkinshaw. 119 

recover on a different cause of action from that alleged. 
I^Mandran v. Ooux, 51 Cal. 151 ; Reed v. Norton, 99 Cal. 617, 
619; Eastlick v. Wright, 121 Cal. 309; Kelly v. Plover, 103 
Cal. 35; Riverside Water Co. v. Oage, 108 Cal. 240, 244; £u- 
del V. Los Angeles County, 118 Cal. 281, 286 ; Wallace v. 
Farmers' Ditch Co., 130 Cal. 578, 583; Schirmer v. Drexler, 
134 Cal. 134, 139.) The law of California is settled that per- 
colating water belongs absolutely to the owner of the soil, 
with the right to use and divert it as the owner sees fit. {Han- 
son V. McCue, 42 Cal. 303 ;* Painter v. Pasadena L. and W. 
Co,, 91 Cal. 74, 82; Southern Pacific Co. v. Dufour, 95 Cal. 
616; Qould v. Eaton, 111 Cal. 641 ;2 City of Los Angeles v. 
Pomeroy, 124 Cal. 597; Vineland Irr. Dist. v. Azusa PI. Dist, 
126 Cal. 486.) The California law on this subject accords 
with the great weight of American and English authorities. 
(27 Am. & Eng. Ency. of Law, 425; Breuning v. Dorr, 2H 
Colo. 195; Wilson v. Ward, 26 Colo. 39; Roath v. Driscoll 
20 Conn. 533 ;« Brown v. lUus, 25 Conn. 593; S. C. 27 Conr. 
84;* Metcalf v. Nelson, 8 S. Dak. 89 ;» Deadwood Cent. K. 
Co. V. Barker, 14 S. Dak. 558; Tampa Waterworks Co. v 
Cline, 37 Fla. 586 ;« Saddler v. Lee, 66 Ga. 45;^ Warmack v. 
Brownlee, 84 Ga. 196; Edward v. Haeger, 180 111. 99; New 
Albany etc. R. R. Co. v. Peterson, 14 Ind. 116; Taylor v. 
Fickas, 64 Ind. 172 ;« Ct^y of Emporia v. Soden, 25 Kan. 588;* 
Kinnigird v. Standard OU Co., 89 Ky. 473 ;i« Chase v. iSiiver- 
sitone, 62 Me. 175;" Chesley v. ffin^, 74 Me. 164;" Qreenleaf 
v. Francis, 18 Pick. 117 ; Wilson v. iVew; Bedford, 108 Mass. 
26 ; Z>ain^ v. SpauLding, 157 Mass. 431 ; Upjohn v. Richland 
Twp., 46 Mich. 549;" Ocean Grove C. M. Assn. v. As&wry 
Parfc, 40 N. J. Eq. 447 ; Ellis v. Duncan, 21 Barb. 230; Dehli 
V. Youmans, 50 Barb. 305; Qoodale v. Tw^We, 29 N. T. 459: 
Trustees of Dehli v. Joumarw, 45 N. Y. 362 ;" Bliss v. Greeley, 
45 N. Y. 671 ;«^ JoAiw^otim e^c. Co. v. Veght, 69 N. Y. 16;" 



1 10 Am. Dee. 299. • 87 Am. Bep. 265. 

S 52 Am. St. Bep. 201« u 25 Am. St. Bep. 54S. 

t52 Am. Dee. 352. ni6 Am. Bep. 419. 

4 71 Am. Dee. 49. u 43 Am. Bep. 569. 

S59 Am. St. Bep. 740. U41 Am. Bep. 178. 

• 53 Am. St. Bep. 262. M 6 Am. Bep. 100. 

T42 Am. Bep. 62. »6 Am. Bep. 157. 

tSl Am. Bep. 114. l«25 Am. Bep. 125. 



120 Katz v. Walkinbhaw. [141 CaL 

Phelps V. Nowlen, 72 N. Y. 39 ;i Bloodgood v. Ayers, 108 N. 
Y. 400,-* Frazier v. Brown, 12 Ohio St. 300; Elster v. Spring- 
field, 49 Ohio St. 100; Taylor v. WeZc*, 6 Or. 199; SidUvan 
y. Mining Co., 11 Utah, 441 ; Crescent Min. Co. y. i8filt;6r JTtn^; 
Min, Co., 17 Utah, 444, 451 ,•» WUlaw Creek Irr. Co. v. Mi- 
chaelson, 21 Utah, 248;* Chaifield v. WOson, 28 Vt. 49; 31 
Vt. 357; Harwood v. Benton, 32 Vt. 742, 737; WheOock v. 
Jacofts, 70 Vt. 162 f MiUer y. Black Rock etc. Co., 99 Vt. 747 ;« 
Meyer v. Tacoma L. and P. Co., 8 Wash. 144, 147 ; Acton y. 
BlundeU, 12 Mees. & W. 324; New River Co. v. Johnson, 2 
EL & E. 405.) 

SHAW, J. — ^A rehearing was granted in this case for the 
purpose of considering more fully, and by the aid of such ad- 
ditional arguments as might be presented by persons not 
parties to the action, but yitally interested in the principle in- 
yolved, a question that is noyd and of the utmost importance 
to the application to useful purposes of the waters which may 
be found in the soil. 

Petitions for rehearing were presented not only in behalf 
of the defendant, but also on behalf of a number of corpora- 
tions engaged in the business of obtaining water from wells 
and distributing the same for public and private use within 
this state, and particularly in the southern part thereof. 
Able and exhaustive brie& have been filed on the rehearing. 
The principle decided by the late Justice Temple in the for- 
mer opinion, and the course of reasoning by which he arrived 
at the conclusion, have been attacked in these several briefs 
and petitions with much learning and acumen. It is proper 
that we should here notice some of the objections thus pre- 
sented. 

It is urged, in the first place, that the decision goes beyond 
the case that was before the court ; that the pleadings stated a 
cause of action solely for the diversion of water from an al- 
leged underground stream, and that, therefore, there was no 
occasion for a discussion of the principles governing the rights 
to waters of the class usually denominated percolating watera 
The proposition is not tenable. The complaint, in substance^ 

188 Am. Bep. 93. 4 81 Am. Si. Bep. 687. 

tS Am. St. Bep. 448. i67 Am. St. Bep. 659, and nofeiiL 

tro Am. St. Bep. Sia • 86 Am. St Bep. 984. 



Nov. 1903.] Katz v. Walkinshaw. 121 

states that the plaintiffs had wells upon their respective tracts 
of land, from which water flowed to the surface of the ground ; 
that the water was necessary for domestic use and irrigation 
on the lands on which they were situate ; that the defendant, 
by means of other wells and excavations upon another tract of 
land in the vicinity prevented any water from flowing through 
the plaintiffs' wells to their premises, and that this was done 
by drawing off the water through the wells of the defendant, 
taking it to a distant tract and there using it. If the princi- 
ple is correct that the defendant cannot thus, and for this 
purpose, take from the plaintiffs' wells the percolating waters 
from which th^ are supplied, then no further allegations 
were necessary, and the averment that the water constituted 
part of an underground stream may be regarded as surplus- 
age. The complaint was thus treated in the opinion of Jus- 
tice Temple, and he properly considered the question whether 
or not, eliminating the surplus allegation that there was au 
underground stream, the complaint stated a cause of action 
which was sustained by the evidence. The fact that the court 
below supposed that the existence of a stream of water was 
necessary to make the diversion of the water an actionable 
wrong does not limit this court to the same view, if it be er- 
roneous. If enough of the facts which are set forth in the 
complaint are established by the evidence, without substan- 
tial conflict, to constitute a good cause of action, then the 
nonsuit should not have been granted, although other allega- 
tions are not proven. 

Many arguments, objections, and criticisms are presented 
in opposition to the rules and reasoning of the former opin- 
ion. It is contended that the rule that each landowner owns 
absolutely the percolating waters in his land, with the right to 
extract, sell, and dispose of them as he chooses, regardless 
of the results to his neighbor, is part of the common law, and 
as such has been adopted in this state as the law of the land 
by the statute of April 13, 1850, (Stats. 1850, 219,) and by 
section 4468 of the Political Code, and that, consequently, 
it is beyond the power of this court to abrogate or change 
it; that the question comes clearly within the doctrine of 
stare decisis; tibat the rule above stated has become a rule of 
property in this state upon the faith of which enormous in- 
vestments have been made, and that it should not now be de- 



122 Eatz t;. Waleinshaw. [141 CaL 

parted from, even if erroneous ; that eyen if the question were 
an open one, the adoption of the doctrine of correlative rights 
in percolating waters would hinder or prevent all further 
developments or use of underground waters, and endanger 
or destroy developments already made, thus largely restrict- 
ing the productive capacity and growth of the state, and that, 
therefore, a sound public policy and regard for the general 
welfare demand the opposite rule; that the doctrine of reason- 
able use of percolating waters would require an equitable 
distribution thereof among the different landowners and 
claimants who might have rights therein, that this would 
throw upon the courts the duty and burden of regulating 
the use of such waters and the flow of the wells or tunnels, 
which would prove a duty impossible of performance; and, 
finally, that if this rule is the law as to percolating waters, 
it must for the same reason be the law with regard to the 
extraction of petroleum from the ground, and, if so, it would 
entirely destroy the oil development and production of this 
state, and for that reason also that it is against public policy 
and injurious to the general welfare. 

The idea that the doctrine contended for by the defendant 
is a part of the common law adopted by our statute, and 
beyond the power of the court to change or modify, is founded 
upon a misconception of the extent to which the common lav 
is adopted by such statutory provisions, and a failure to 
observe some of the rules and principles of the conmion law 
itself. In Crandall v. Woods, 8 Cal. 143, the court approved 
the following rule, quoting from the dissenting opinion of 
Bronson, J., in Starr v. Child, 20 Wend. 159: "I think no 
doctrine better settled than that such x)ortions of the law of 
England as are not adapted to our condition form no part of 
the law of this state. This exception includes not only such 
laws as are inconsistent with the spirit of our institutions, 
but such as are framed with sx>ecial reference to the physical 
condition of a country differing widely from our own. It 
is contrary to the spirit of the common law itself to apply 
a rule founded on a particular reason to a case where that 
reason utterly fails." This quotation was subsequently ap- 
proved by the New York court of appeals. {People v. Ap- 
praiserSf 33 N. Y. 461.) The same doctrine was followed in 



Nov. 1903.1 Katz v. Walkinshaw. 123 

the case of English v. Johnson, 17 Gal. 116.^ In Pennsyl- 
vania and West Virginia, under similar statutes, it was held 
that only such parts of the common law as were applicable 
to the local situation of the particular state were in force 
{Carson v. Blazer, 2 Binn. ^AfPoweU v. Sims, 5 W. Va. 4*), 
and this is the rule in all the states upon the question, irre- 
spective of statutory adoption. (Commonwealth v. KnowU 
ton, 2 Mass. 534; State v. Rollins, 8 N. H. 560; Pierce v. 
State, 13 N. H. 542; Currier v. Perley, 24 N. H 223; Den- 
nett V. Bennett, 43 N. H. 499 ; Van Ness v. Pacard, 2 Pet. 
144; Wheaton v. Peters, 8 Pet. 659; Bloom v. Richards, 2 
Ohio St. 391.) 

The true doctrine is, that the common law by its own prin- 
ciples adapts itself to varying conditions, and modifies its own 
rules so as to serve the ends of justice under the different 
circumstances, a principle adopted into our code by section 
C510 of the Civil Code: "When the reason of a rule ceases, 
so should the rule itself." This is well stated in Morgan v. 
King, 30 Barb. 16: "We are not bound to follow the letter 
of the common law, forgetful of its spirit; its rule instead ot 
its principle. A rule of law applicable to the fresh-water 
streams of England may be wholly inapplicable to fresh- 
water streams in this country of the same nature and char- 
acter, because of different capacity, or because the adjoining 
country may furnish a commerce for them unknown in Eng- 
land, and yet be subject to the same principle. If so, the com- 
mon law modifies its rules upon its own principles, and con- 
forms them to the wants of the community, the nature, char- 
acter, and capacity of the subject to which they are to be 
applied." In Beardsley v. Hartford, 50 Conn. 542,* the court 
says: "It is a well-settled rule that the law varies with the 
varying reasons on which it is founded This is expressed 
by the mixim: ^Cessante ratione, cessat ipsa lex,' This means 
that no law can survive the reasons on which it is founded. 
It needs no statute to change it; it abrogates itself. If the 
reasons on which a law rests are overborne by opposing 
reasons, which, in the progress of society, gain controlling 
force, the old law, though still good as an abstract principle^ 



1 76 Am. Dee. 574. 1 18 Am. Bep. 629. 

S4 Am. Dee. 463. «47 Am. Bep. 677. 



124 Eatz t;. Walkhtshaw. [141 Cal. 

and good in its application to some circumstances, must ceaae 
to apply or to be a controlling principle to the new circum- 
stances." Accordingly, in many instances in this country, 
in states where the common law is held to be in force, some of 
its rules are held to be not applicable to the conditions dif- 
ferent from the place of its origin. {Connolly v. Ooodtvin, 

5 Cal. 221 ; Bicketis v. Johnson, 8 Cal. 36 ; United States 7. 
McCarthy, 18 Fed. 89; 21 Blatchf. 469; Bovard v. Kettering, 
101 Pa. St. 185; Haywood v. Shreve, 44 N. J. L. 96; Green ▼. 
Liter, 8 Cranch, 249; Cole v. Lake, 54 N. H. 286; Pettingill 
\. Rideout, 6 N. H. 454 ;i Boston and W. B. C. ▼. Dana, 1 
Gray, 97 ; Lindsley v. Coats, 1 Ohio, 243 ; Stoever v. Whitman, 

6 Binn. 420; Dawson v. Coffman, 28 Ind. 223; Wagner v. 
Bissell, 3 Iowa, 496; Reaume v. Chambers, 22 Mo. 54; 
Seeley v. Peters, 10 111. 130; Collins v. Chartiers V. G. Co ^ 
131 Pa. St. 143,' in which case this same doctrine of the ab- 
solute ownership in percolating water was modified; Harris 
V. Harrison, 93 Cal. 676, and Wiggins ▼. Muscupiabe Co., 113 
Cal. 182,* in which last-mentioned cases the common law re- 
specting riparian rights was said to have been modified in 
this state to suit our peculiar conditions.) Whenever it is 
found that, owing to the ph3^ical features and character oC 
this state, and the peculiarities of its climate, soil, and pro- 
ductions, the application of a given common-law rule by on? 
courts tends constantly to cause injustice and wrong, rather 
than the administration of justice and right, then the funda- 
mental principles of right and justice on which that law is 
founded, and which its administration is intended to pro- 
mote, require that a different rule should be adopted, one 
which is calculated to secure persons in their properly and 
possessions, and to preserve for them the fruits of their labors 
and expenditures. The question whether or not the rale 
contended for is a part of the common law applicable to this 
state depends on whether it is suitable to our conditions an- 
der the rule just stated. 

It is necessary, therefore, to state the conditions existing 
in many parts of this state which are different from those 
existing where the rule had its origin. 



125 Am. Dec. 473. t64 Am. St. Bep. 887. 

tl7 Am. St. Bep. 701. 



Nov. 1903.] Katz v. Walkinshaw. 125 

In a large part of the state, and in almost all of the south- 
ern half of it, particularly south of the Tehachapi range of 
mountains, aside from grains, grasses, and some scant pastur- 
age, there is practically no production by agriculture except 
by means of artificial irrigation. In a few places favored by 
nature crops are nourished by natural irrigation, due to the 
existence underneath the ordinary soil of a saturated layer 
of sand or gravel, but these places are so few that they are 
of no consequence in any general view of the situation. Irri- 
gation in these regions has always been customary, and under 
the Spanish and Mexican governments it was fostered and en- 
couraged. Even in the earlier periods of the settlement of 
the country, after its acquisition by the United States, and 
while the population was sparse and scattered compared to 
the present time, the natural supply of water from the sur- 
face streams, as diverted and applied by the crude and waste- 
ful methods then used, was not considered more than was 
necessary. As the population increased, better methods of 
diversion, distribution, and application were adopted, and the 
streams were made to irrigate a very much larger area of 
land. While this process was going on a series of wet yearn 
augmented the streams, and still more land was put under the 
irrigating systems. Recently there has followed another se- 
ries of very dry years, which has eorresx)ondingly diminished 
the flow of the streams. After this period began it was soon 
found that the natural streams were insufficient. The situa- 
tion became critical, and heavy loss and destruction from 
drought was imminent. Still the population continued to in- 
crease, and with it the demand for more water to irrigate 
more land. Recourse was then had to the undei^iound wa- 
ters. Tunnels were constructed, more artesian wells bored, 
and finally pumps driven by electric or steam power were put 
into general use to obtain sufficient water to keep alive and 
productive the valuable orchards planted at the time when 
water was supposed to be more abundant. The geological 
history and formation of the country is peculiar. Deep bor- 
ings have shown that almost all of the valleys and other 
places where water is found abundantly in percolation were 
formerly deep canyons or basins, at the bottoms of which 
anciently there were surface streams or lakes. Gravel, boul- 
ders, and occasionally pieces of driftwood have been found 



126 Katz v. Walkinshaw. [141 Cal. 

near the coast far below tide-levely showing that these sunken 
stream-beds were once high enough to discharge water by 
gravity into the sea. These valleys and basins are bordered 
by high mountains, upon which there falls the more abundant 
rain. The deep canyons or basins in course of ages have be- 
come filled with the washings from the mountains, lai^ely 
composed of sand and gravel, and into this porous material 
the water now running down from the mountains rapidly 
sinks and slowly moves through the lands by the process 
usually termed percolation, forming what are practically un- 
derground reservoirs. It is the water thus held or stored 
that is now being taken to eke out the supply from the natural 
streams. In almost every instance of a water supply from 
the so-called percolating water, the location of the well or 
tunnel by which it is collected is in one of these ancient can- 
yons or lake basins. Outside of these there is no percolatins: 
water in sufficient quantity to be of much importance in the 
development of the country or of sufficient value to cause se- 
rious litigation. It is usual to speak of the extraction of this 
water from the ground as a development of a hitherto unused 
supply. But it is not yet demonstrated that the process is 
not in fact, for the most part, an exhaustion of the under- 
ground sources from which the surface streams and other 
supplies previously used have been fed and supported. In 
some cases this has been proven by the event. The danger of 
exhaustion in this way threatens surface streams as well as 
underground percolations and reservoirs. Many water com- 
panies, anticipating such an attack on their water supply, 
have felt compelled to purchase, and have purchased, at great 
expense, the lands immediately surrounding the stream or 
source of supply, in order to be able to protect and secure 
the percolations from which the source was fed. Owing to 
the uncertainty in the law, and the absence of legal protec- 
tion, there has been no security in titles to water-rights. So 
great is the scarcity of water under the present demands and 
conditions that one who is deprived of water which he has 
been using has usually no other source at hand from which 
he can obtain another supply. 

The water thus obtained from all these sources is now used 
with the utmost economy, and is devoted to the production of 
dtrus and other extremely valuable orchard and vineyard 



Nov. 1903.J Katz v. Walkinshaw. 127 

crops. The water itself, owing to the tremendous need, the 
valuable results from its application, and the constant effort 
to plant more orchards and vineyards to share in the great 
profits realized therefrom, has become very valuable. In 
some instances it has been known to sell at the rate of fifty 
thousand dollars for a stream flowing at the rate of one cubic 
foot per second. Notwithstanding the great drain on the 
water supply, the economy in the distribution and applica- 
tion, and the much larger area of land thereby brought un 
der irrigation, there still remain large areas of rich soil which 
are dry and waste for want of water. This abundance of 
land, with the scarcity and high price of water, furnish a 
constant stimulus to the further exhaustion of the limiteci 
amount of underground water, and a constant temptation to 
invade sources already appropriated. The charms of the cli- 
mate have drawn, and will continue to draw, immigrants 
from the better classes of the eastern states, composed largely 
of men of experience and means, energetic, enterprising, and 
resourceful. With an increasing population of this char- 
acter, it is manifest that nothing that is possible to be done 
to secure success will be left undone, and that there must en- 
sue in years to come a fierce strife, first to acquire and then 
to hold every available supply of water. 

It is scarcely necessary to state the conditions existing in 
other countries referred to, to show that they are vastly dif- 
ferent from those above stated. There the rainfall is abun- 
dant, and water, instead of being of almost priceless value, is 
a substance that in many instances is to be gotten rid of rather 
than preserved. Drainage is there an important process in 
the development of the productive capacity of the land, and 
irrigation is unknown. The lands that from their situation 
in this country are classed as damp lands would in those 
countries be either covered by lakes or would be swamps and 
bogs. If one is deprived of water in those regions, there is 
usually little difficulty in obtaining a sufficient supply near 
by, and at small expense. The country is interlaced with 
streams of all sizes from the smallest brooklet up to large 
navigable rivers, and the question of the water supply haa 
but little to do with the progress or prosperity of the country. 

It is clear also that the difficulties arising from the scarcity 
of water in this country are by no means ended, but, on the 



128 Eatk v. Walkinshaw. [141 CaL 

contrary, are probably just beginning. The application of 
the role contended for by the defendants will tend to aggra- 
vate these difSculties rather than solve them. Traced to iU 
true foundation, the role is simply this: that owing to the 
difficulties the courts will meet in securing persons from the 
infliction of great wrong and injustice by the diversion of 
percolating water, if any property right in such water is rec- 
ognized, the task must be abandoned as impossible, and those 
who have valuable property acquired by and dependent on 
the use of such water must be left to their own resources to 
secure protection for their property from the attacks of their 
more powerful neighbors, and failing in this, must suffer ir- 
retrievable loss ; that might is the only protection* 

"The good old rule 
BuiBeeth them, the simple plan, 
Thftt they should take who have the power. 
And they should keep who ean." 

The field is open for exploitation to every man who covets 
the possessions of another or the water which sustains and 
preserves them, and he is at liberty to take that water if he 
has the means to do so, and no law will prevent or interfere 
with him or preserve his victim from the attack. The diffi- 
culties to be encountered must be insurmountable to justify 
the adoption or continuance of a rule which brings about such 
consequences. 

The claim that the doctrine stated by Mr. Justice Temple 
is contrary to all the decisions of this court is not sustained 
by an examination of the cases. The decisions have not been 
harmonious, and in many of them what is said on this subject 
is mere dictum. A brief review of the cases will demonstrate 
this to be true. In Hanson v. McCue, 42 Cal. 303,^— the first 
case on the subject, — ^it was not necessary for the court to say 
anything at all with respect to the right of a landowner to 
complain of a diversion of percolating waters. McCue's pre- 
decessor had made a ditch leading from a spring on his land 
across a tract of land belonging to Hanson's predecessor, and 
terminating upon another tract, also owned by McCue*s pre- 
decessor, through which ditch he conducted water from the 
spring across the Hanson tract to his other land. This ditch 



1 10 Am. Bep. 299. 



Nov. 1903.] Katz v. Walkinshaw. 129 

in its course over Hanson's land leaked water in such quanti- 
ties that it collected into a stream, which Hanson used for 
irrigation. This was the only foundation for the right which 
flanson had or claimed to the water. The court properly 
held that he had no right to the waste water and that McCue 
was not bound to continue to maintain the artificial stream 
for Hanson's benefit, but could by any means he chose change 
the use of the spring and the course of the ditch. The fact 
that the change was made by intercepting the percolating 
waicr which fed the stream was not material to the case, and 
all that is said as to the right to do so is dictum. The opin- 
ion, however, does, though unnecessarily, announce and ap- 
prove the doctrine contended for by the respondent here. 
Huston V. Leach, 53 Cal. 262, decides only that the phrase 
''waters of said springs," in the decree of the court meant 
defined streams running into or issuing from the springs, and 
did not include the percolations which fed the strings. Hale 
V. McLea, 53 Cal. 578, referred to a well-defined though very 
small underground stream, flowing thtrough fissures in the 
rocks, and has no relation to ordinary percolating water. 
The court held that the defendant could not cut off the entire 
stream, and at most could only use a reasonable portion there- 
of as an upper riparian owner. In Cross v. Kitts, 69 Cal. 
217,^ the court in its opinion, again by way of dictum, an- 
nounces the doctrine that the owner of the soil is the abso- 
lute owner of the percolating water therein ; but the decision 
is against this doctrine. It is a case of the court announcing 
one doctrine and deciding the contrary. The plaintiff, 
through a grant from defendant's predecessor, owned a right 
to take water on defendant's mining claim by means of a tun- 
nel which served to collect the percolating water into a small 
stream of two miner's inches, which flowed out of the tunnel 
and was conducted by pipes to plaintiff's premises. This 
court decided that the defendant had no right to cut off the 
percolations which fed the stream issuing from the tunnel, 
although this was done in the legitimate work of mining his 
own land. The decision is in direct conflict with the dictum 
in Hanson v. McCue, 42 Cal. 303,^ and is in accord with the 
principles laid down by Justice Temple. It can only be dis^ 

168 Am. Bep. 658. SIO Am. Bep. 299. 

f!YT.T, finV — 



130 Katz V, Walkinshaw. [141 Cat 

tinguished xipon the ground that the defendant was estopped 
by the grant of his predecessor to use the land so as to de- 
stroy the water-right granted — a distinction which is not men- 
tioned or referred to in the opinion. The distinction made in 
the opinion, and upon which the decision in Croa t. KMs, 
is based, is, that when percolating waters are gathered into a 
defined stream by means of a tunnel, the stream is property, 
and as such it is protected by law from injury or destruction 
^y the diversion of such percolating water before it reaehev 
the tunnel. There can be no distinction in law or reason be- 
tween a stream consisting of percolating waters gathered to- 
gether by means of a tunnel and one gathered by means of an 
artesian well. Therefore, the case supports Justice Temple's 
conclusion. The only point bearing upon the case at bar that 
was decided in Painter v. Pasadena L. and W. Co., 91 CaL 
74, is, that the right of the owner of land to the water perco- 
lating therein may be reserved in a grant of the land, and 
that this right to such reserved water may subsequently be 
transferred. It does not touch the question of the extent of 
the right of the landowner to such water, as against the ad- 
joining proprietors or others claiming rights in it In 
Southern Pacific B. R. Co. v. Dufour, 95 CaL 616, the de- 
cision was put ui)on the ground that the excavation of de- 
fendant, which caused the diversion of percolating water of 
which plaintiff complained, was made upon defendant's own 
land for the purpose of obtaining the water for the better 
use of the land, which it was held he had a right to do, al- 
though it destroyed the spring or stream claimed by the 
plaintiff. The dictum of Hanson v. McCue was approved. 
The decision seems to be in conflict with Cross v. Kitts, al- 
though the latter case is not mentioned. In Ooidd v. Eaton, 
111 Cal. 639,^ the court below found that the tunnel com- 
plained of gathered and discharged a stream of water of 
which all except one and forty-three hundredths miner's 
inches was gathered from percolating waters in the sandstone, 
which did not come from the channel of the natural stream. 
It was this excess only which was in issue. The finding 
that it was percolating water was held to be conclusive upon 
the appellate court. It appeared that some of the percolating 
water thus developed would, if not interrupted, have reached 



158 Am. St. Bep. 201. 



Not. 1903.] Katz v, Waleinshaw. 131 

the natural stream. The court adopts and approves the 
dictum of Hanson v. McCue, and holds that the plaintiff had 
no legal right to enjoin a diminution of the natural stream 
caused by a diversion of percolating water before it reached 
the channel. In Los Angeles v. Pomeroy, 124 Gal. 622, an 
instruction of the court below stating the dictum of Hanson 
V. McCue, was criticised by the appellants, not for the reason 
that it restated that doctrine, but upon the ground that it 
did not class as percolating waters all such water as might 
be found in the sand or soil underneath the bed of a stream 
or adjacent thereto. So far as it restated the doctrine of 
Hanson v. McCue, it was favorable to the appellants, and, 
therefore, they did not object to that part of it. The court 
held that it was not subject to criticism on the ground that it 
did not properly define percolating waters. The decision, 
however, cannot be taken as an approval of the doctrine of 
Hanson v. McCue. In so far as that doctrine was stated, it 
being favorable to appellants, it was not presented for con- 
sideration to the appellate court The objection of the ap- 
pellants, and the point considered by the appellate court, 
was that the instruction departed from the rule quoted in 
Hanson v. McCue. Inasmuch as the writer of this opinion 
was also the writer of the instruction under consideration, it 
may be proper to say that he did not give the instruction 
because he approved that part of it restating the doctrine of 
Hanson v. McCue. The instruction was given because an 
instruction embodying that doctrine had been requested by 
the appellants in the case, and the respondents, the plaintiffs, 
believing that it would not materially affect the verdict, 
consented that that part should be given in substance, rather 
than take the chances of a reversal of the case, should the 
supreme court hold its refusal to be erroneous. The remarks 
of the court in Vinekmd District v. Azusa District, 126 Cal. 
494, giving the ordinary definition of percolating waters, 
and stating the rule contended for by the defendant as apply- 
ing thereto, call for no discussion. The court was referring 
to this solely for the purpose of giving the proper meaning 
to the word "percolating" as used in the findings, and to 
show that the word was not there used to designate waters 
which were not a part of the subterranean stream under 
consideration. In Bartlett v. O'Connor, 36 Pac (CaL) 513, 



132 Eatz v. Walkinbhaw. [141 CaL 

the defendants^ with the intent to injure the plaintiff, at- 
tempted to reclaim their lands by drawing off the percolating 
water through an artificial ditch away from the natural 
stream. It appeared that this could have been done as well 
by deepening the natural channel of the stream. It was held 
to be an unlawful diyersion. This comprises all the cases on 
the subject 

Excluding the cases in which the statement of the doctrine 
of absolute ownership is dictum^ and looking to what has 
been actually decided, we have remaining only Crass v. KittSt 
69 Gal. 217,^ holding that the owner of a mining daim, 
whose predecessor had granted a stream made up of perco- 
lating water collected by means of a tunnel, could not, even 
in the ordinary mining of his own land, interfere with the 
flow of the percolating water to the tunnel ; Southern Pacific 
R. R, Co, V. Dufour, 95 Cal. 616, holding that a landowner can 
divert, for use on his own land, percolating water which feeds 
a spring rising on the land and flowing to an adjoining owner, 
although the diversion destroys the spring; Bartlett v. 
O'Connor, 36 Pac. (Cal.) 513, holding that such a diversion 
cannot be made in the process of draining the land for 
reclamation, where the draining and reclamation can be ac- 
complished by another mode without diminishing the stream, 
and the mode used is adopted with the intention to injure 
the lower proprietor; and Oould v. Eaton, 111 Cal. 639,* 
declaring, in effect, that percolating water may be prevented 
trom reaching a natural stream to the injury of a riparian 
owner, although the x>ercolations are neither taken for use 
on the land where the diversion is made, nor in the use or 
reclamation of the land, but for use on other land distant 
from both the stream and the percolations. In view of this 
conflicting and uncertain condition of the authorities, it can- 
not be successfully claimed that the doctrine of absolute 
ownership is well established in this state. It is proper to 
state that in all the opinions which have so readily quoted and 
approved the supposed common-law rule, that injuries from 
interference with percolating waters were too obscure in 
origin and cause, too trifling in extent, and relatively of 
too little importance, as compared to mining industries and 
the wants of large cities, to justify or require the recognition 



1 5S Am. Bep. 65S. > 62 Am. St Bep. SOI. 



Nov. 1903.] Katz v. Walkinshaw. 133 

by the ooarts of any correlatiye rights in such waters, or the 
redress of such injuries, there has been no notice at all taken 
of the conditions existing here, so radically opposite to those 
prevailing where the doctrine arose. It is also to be observed 
that in some instances in the eastern states, mentioned in the 
former opinion in this case, the injustice from the diversion 
of percolating waters has been so glaring and so extensive 
that the court there was compelled to depart from its previ- 
ously decided cases and recognize the rights of adjoining 
owners. 

We do not see how the doctrine contended for by defendant 
could ever become a rule of property of any value. Its dis- 
tinctive feature is the proposition that no property rights 
exist in such waters except while they remain in the soil of 
tlie landowner ; that he has no ri^ht either to have them con- 
tinue to pass into his land, as they would under natural con- 
ditions, or to prevent them from being drawn out of his 
land by an interference with natural conditions on neighbor- 
ing land. Such right as he has is therefore one which he 
cannot protect or enforce by a resort to legal means, and one 
which he cannot depend on to continue permanently or for 
liny definite period. 

It is apparent that the parties who have asked for a recon- 
sideration of this ease, and other persons of the same class, 
if the rule for which they contend is the law, or no law, of 
the land, will be constantly threatened with danger of utter 
destruction of the valuable enterprises and systems of water- 
works which they control, and that all new enterprises of the 
same sort will be subject to the same peril. They will have 
absolutely no protection in law against others having stronger 
pumps, deeper wells, or a more favorable situation, who cau 
thereby take from them unlimited quantities of the water, 
reaching to the entire supply, and witiiout regard to the place 
of use. We cannot perceive how a doctrine offering so little 
protection to the investments in and product of such enter- 
prises, and offering so much temptation to others to capture 
the water on which they depend, can tend to promote develop- 
ments in the future or preserve those already made, and, 
therefore, we do not believe that public policy or a regard 
for the general welfare demands the doctrine. An ordinary 
difference in the conditions would scarcely justify the refusid 
to adopt a rule of the common law, or one which has been so 



134 Eatz v. Waljunshaw. [141 CaL 

^^— ' ■' ■ ^^-^^^^^^^-^-^-^— ^^^^^^— ^— ^^^— ^^^^^^^^^— ^^^^^^^^^^^* 

generally supposed to exist; but where the differeneee are 
so radical as in this case, and would tend to cause so great 
a subversion of justice, a different rule is imperative. 

The doctrine of reasonable use, on the other hand, affords 
some measure of protection to property now existing, and 
greater justification for the attempt to make new develop- 
ments. It limits the right of others to such amount of water 
as may be necessary for some useful purpose in connection 
with the land from which it is taken. If , as is claimed in the 
argument, such water-bearing land is generally worthless ex- 
cept for the water which it contains, then the quality that 
could be used on the land would be nominal, and injunctions 
could not be obtained, or substantial damages awarded, again&t 
those who carry it to distant lands. So far as the active 
interference of others is concerned, therefore, the danger to 
such undertakings is much less, and the incentive to develop- 
ment much greater, from the doctrine of reasonable use than 
from the contrary rule. No doubt there will be inconvenience 
from attacks on the title to waters appropriated for use on 
distant lands made by persons who claim the right to the 
reasonable use of such waters on their own lands. Similar 
difficulties have arisen and now exist with respect to rights in 
surface streams, and must always be expected to attend 
claims to rights in a substance so movable as water. But the 
courts can protect this particular species of property in water 
as effectually as water-rights of any other description. 

It may, indeed, become necessary to make new applications 
of old principles to the new conditions, and possibly to modify 
some existing rules, in their application to this class of prop- 
erty rights; and in view of the novelty of the doctrine, and 
the scope of argument, it is not out of place to indicate to 
some extent how it should be done, although otherwise it would 
not be necessary to the decision of the case. The controversies 
arising will naturally divide into classes. 

There will be disputes between persons or corporations 
claiming rights to take such waters from the same strata or 
source for use on distant lands. There is no statute on this 
subject, as there now is concerning appropriations of surface 
streams, but the case is not without precedent. When the 
pioneers of 1849 reached this state they found no laws in 
force governing rights to take waters from surface streams 



Nov. 1903.] Katz v. Walkinshaw. 135 



for use on non-riparian lands. Yet it was found *'hat the 
principles of the common law, although not previoisly ap- 
plied to such cases, could be adapted thereto, and were suf- 
ficient to define and protect such rights under the new 
conditions. The same condition existed with respect to 
rights to mine on public land, and a similar solution was 
found. (KeUy v. Natama W. Co., 6 Cal. 108; Conger r. 
Weaver, 6 Cal. 557;^ Eddy v. Simpson, 3 Cal. 253,^ HM 
v. Newman, 5 Cal. 446;* McDonald v. Bear River etc. Co., 
13 Cal. 233.) The principles which, before the adoption of 
the Civil Code, were applied to protect appropriations and 
possessory rights in visible streams will, in general, be found 
applicable to such appropriations of percolating waters, either 
for public or private use, on distant lands, and will suffice for 
their protection as against other appropriators. Such rights 
are usufructuary only, and the first taker who with diligence 
puts the water in use will have the better right. And in 
ordinary cases of this character the law of prescriptive titles 
and rights and the statute of limitations will apply. 

In controversies between an appropriator for use on distant 
land and those who own land overlying the water-bearing 
strata, there may be two classes of such landowners: thoso 
who have used the water on their land before the attempt to 
appropriate, and those who have not previously used it, but 
who claim the right afterwards to do so. Under the decision 
in this case the rights of the first class of landowners are 
paramount to that of one whj takes the water to distant 
land; but the landowner's right extends only to the quantity 
of water that is necessary for use on his land, and the ap- 
propriator may take the surplus. As to those landowners 
who begin the use after the appropriation, and who, in order 
to obtain the water, must restrict or restrain the diversion 
to distant lands or places, it is perhaps best not to state a 
positive rule until a case arises. Such rights are limited at 
most to the quantity necessary for use, and the disputes will 
not be so serious as those between rival appropriators. 

Disputes between overlying landowners, concerning water 
for use on the land, to which they have an equal right, in 



165 Am. Dee. 528. t68 Am. Dee. 140. 

1 58 Am. Dee. 408. 



136 KkTZ V. Walkinshaw. [141 CaL 

cases where the supply is insufficient for all, are to be settled 
bj giving to each a fair and just proportion. And here again 
we leave for future settlement the question as to the priority 
of rights between such owners who begin the use of the 
waters at different times. The parties interested in the ques • 
tion are not before us. 

In addition, there are some general rules to be applied. 
In cases involving any class of rights in such waters, prelimi- 
nary injunctions must be granted, if at all, only upon the 
clearest showing that there is imminent danger of irreparable 
and substantial injury, and that the diversion complained of 
is the real cause. Where the complainant has stood by while 
the development was made for public use, and has suffered 
-t to proceed at large expense to successful operation, having 
reasonable cause to believe it would affect his own water 
supply, the injunction should be refused and the party left 
to his action for such damages as he can prove. {Fresno etc, 
Co. V. Southern Pacific Co,, 135 Cal. 202; Southern Cali- 
fomia Ry. Co. v. Slauson, 138 Cal. 342.^) If a party makes 
DO use of the water on his own land, or elsewhere, he should 
)]ot be allowed to enjoin its use by another who draws it out 
or intercepts it, or to whom it may go by percolation, although 
perhaps he may have the right to a decree settling his right 
to use it when necessary on his 0¥ai land, if a proper case is 
made. 

The objection that this rule of correlative rights will throw 
upon the court a duty impossible of performance, that of ap- 
portioning an insufficient supply of water among a large 
number of users, is largely conjectural. No doubt cases can 
be imagined where the task would be extremely difficult, but 
if the rule is the only just one, as we think has been shown, 
the difficulty in its application in extreme cases is not a 
sufficient reason for rejecting it and leaving property with- 
out any protection from the law. 

It does not necessarily follow that a rule for the govern- 
ment of rights in percolating water must also be followed as 
to underground seepages or percolations of mineral oil. Oil 
is not extracted for use in agriculture, or upon the land from 

194 Am. St. Bep. 6S. 



Nov. 1903.1 Katz v. Walkinshaw. 137 

which it is taken, but solely for sale as an article of merchan- 
dise, and for use in commerce and manufactures. The con- 
ditions under which oil is found and taken from the earth in 
this state are in no important particulars different from 
those present in other countries where it is produced. There 
is no necessary parallel between the conditions respecting 
the use and development of water and those affecting the pro- 
duction of oil. Whether in a contest between two oil-produo- 
cers concerning the drawing out by one of the oil from under 
the land of the other we should follow the rule adopted by 
the courts of other oil-producing states, or apply a rule better 
calculated to protect oil not actually developed, is a question 
not before us and which need not be considered. 

With regard to the doctrine of reasonable use of percolating 
waters, we adhere to the views expressed in the former 
opinion. 

The judgment of the court below is reversed and a new 
trial ordered. 

McFarland, J., Van Dyke, J., Henshaw, J., Lorigan, J^ 
and Beatty, C. J., concurred. 

ANQELOTTI, J., concurring. — I concur in the judgment 
and in the views expressed in the opinion of Mr. Justice 
Temple on the former decision of this case as to the applica- 
tion of the doctrine of reasonable use to percolating watera. 
When properly applied, it appears clear to me that such 
doctrine will serve to protect the rights of the owner of realty 
rather than impair them. 

I also concur generally in the views expressed by Mr. Jus- 
tice Shaw in the majority opinion as to the same subject- 
matter, but several important questions are discussed that 
are not necessaiy to a decision of this case, and as to which the 
opinion herein cannot hereafter be considered as authority. 
As to such matters I refrain from expressing any opinion. 

The following is the opinion of the court rendered in Bank 
on the former hearing, per Temple, J., November 7, 1902, 
referred to in the above opinion on rehearing »— 



138 Katz v. WiJLKiNSHAW. [141 CaL 



TEMPLE, J. — ^This appeal is taken from a judgment of 
nonsuit, entered against plaintif&i on motion of defendant. 

The action was brought to enjoin defendant from drawing 
off and diverting water from an artesian belt, which is in 
part on or under the premises of plaintifEs, and to the water 
of which they have sunk wells, thereby causing the water to 
rise and flow upon the premises of plainti£Es, and which they 
aver had constantly so flowed for twenty years before the 
wrong complained of was committed by defendant. The water 
is necessary for domestic purposes and for irrigating the 
lands of plaintiffs, upon which there are growing trees, vines, 
shrubbery, and other plants, which are of great value to 
plaintiffs. All of said plants will perish, and plaintifib will 
be greatly and irreparably injured if the defendant is al- 
lowed to divert the water. 

These facts are admitted, and further, that defendant is 
diverting the water for sale, to be used on lands of others 
distant from the saturated belt from which the artesian water 
is derived. 

The plaintiffs contend that this subsurface water consti- 
tutes an underground stream, and that plaintiffs are riparian 
thereto, and as such riparian owners they are seeking relief 
in this case. 

The defendant denies that she is taking or diverting water 
from an underground stream or watercourse, and alleges 
that all the water which rises in the artesian wells on her 
premises, and which she is selling, is percolating water, and 
is parcel of her premises, and her property. 

In effect, therefore, while denying that she is doing any act 
of which plaintiffs can complain, she really only denies that 
she is diverting water from an underground watercourse, 
and asserts her right to dispose of the water in the manner 
alleged, because it is percolating water, not confined to a 
definite watercourse. 

The court sustained that proposition, and for that reason 
granted defendant's motion for nonsuit. 
^ The so-called artesian belt includes several square miles of 
territory. It is a large accumulation of earth upon the base 
of very high mountains, and is composed of detritus of vary* 



Nov. 1903.] Katz v. Walkinshaw. 139 

ing quantity and material with no regular stratification. 
Wells have been sunk at least to the depth of seven hundred 
and fifty feet, but no bed-rock has been found. It has quite 
an incline from the mountain, and is from seven hundred to 
fifteen hundred feet above sea-level. Mr. F. C. Pinkie, a civil 
engineer, was the chief witness for the plaintiffs, and testi- 
fied both as to facts palpable to the senses and as an expert. 
He says the saturated land is fed, first, by the underflow 
from the numerous ravines, canyons, and streams which enter 
the valley from the mountains ; and secondly, by the rain and 
fiood-water upon, and absorbed upon the slope and between 
the artesian belt and the mountains. This water percolating 
down into the soil, and constantly pressed forward by water 
accumulating, finally gets under partially impervious earth, 
where it is held under sufficient pressure to create the artesian 
belt. The banks of this supposed subsurface stream, the wit- 
ness thought, were on the west, '^a cemented dyke which runs 
through the vaUey, and the eastern boundary of it is the 
clay bank or dyke at the south side of the Santa Ana River." 
Within these limits many ravines enter from the mountains, 
some of them carrying at times great quantities of water, 
much of which had been appropriated and carried off in pipes 
or cemented aqueducts. 

It is evident that if there is any flow to this underground 
body of water thus held under pressure, it is by percolation. 
The witness stated that the process was the same the world 
over. The lower lands are saturated from above. **It is done 
by saturation from the rainfalls and the floods, and percola- 
tion through voids in the soil." 

It is quite manifest that this body (if it can be so styled) 
of percolating water cannot be called an underground water- 
course to which riparian rights can attach, unless we are pre- 
pared to abolish all distinction between percolating water and 
the water flowing in streams with known or ascertainable 
banks which confine the water to definite channels. All rain- 
water which falls upon the hills and mountain-sides which 
does not fiow off at once as surface water is absorbed and 
percolates down in the same way to the valley below. No 
doubt limits can be found to every such fiow, as in this casa 



140 Eats v. Walkinshaw. [141 Cal. 

The distinction is well established, and, in some respects, 
different roles of law applied to the two eases. The plaintiflsi 
therefore, cannot establish their claims upon the theory of an 
underground watercourse to which they are riparian. 

But appellants contend that though they are not riparian 
to an underground watercourse, and although the saturated 
belt carries only percolating water, still th^ are entitled tc 
the injunction prayed for. 

The defense, conceding that the water held in the eartt 
is percolating water, relies upon certain decisions, whid 
assert and apply literally the maxim, Cujus ei solum ^jus es\ 
tisque ad inferos. And that water percolating in the ground 
or held there in saturation, belongs to the landowners as com- 
pletely as do the rocks, ground, and other material of whid 
the land is composed, and therefore he may remove it and sel 
it, or do what he pleases with it. He cites as authority foi 
the proposition, Hanson v. McCue, 42 Cal. 303;^ Southern 
Pacific R. R. Co. v. Dufour, 95 Cal. 616; Gould v. Eatot^ 
111 Cal. 641;^ and City of Los Angeles v. Pomeroy, 124 Cal 
597. 

It is obvious at once that the analogy between the right to 
remove sand and gravel from the land for sale and to remoYC 
and sell percolating water is not perfect If we suppose a 
saturated plain, one may remove and sell the sand and gravel 
from his land without affecting or diminishing the sand and 
gravel on the lands of his neighbors. If the water on his 
lands is his property, then the water in the soil of his neigh- 
bors is their property. But when he drains out and sells the 
water on his land, he draws to his land, and also sells, water 
which is the property of his neighbor. And the effect is 
similar in other respects. By pumping out the water from 
his lands he can perhaps deprive his neighbors of water for 
domestic uses, and, in fact, render their land valueless. In 
short, the members of the community, in the case supposed, 
have a common interest in the water. It is necessaiy for all, 
and it is an anomaly in the law if one person can for his 
individual profit destroy the conununity and render the neigh- 
borhood uninhabitable. 



110 Am. Bap. 899. ISS Am. 8t Bep. SOL 



Nov. 1903.] Katz v. Walkinshaw. 141 

We have derived our law, in respect to subterranean 
waters, as in other respects, mostly from England, but in re- 
gard to this matter the first cases are quite modem. Even 
yet the text-books on water-rights have but little to say upon 
the subject of percolating water. Such law as has been made 
upon the subject oomes from countries and climates where 
water is abundant, and its conservation and economical use 
of little consequence as compared with a climate like southern 
California. The learned counsel for appellants state in their 
brief that water at San Bernardino is worth one thousand 
dollars per inch of flow. Percolating water, or water held in 
the earth, is the main 80ur«)e of supply for domestic uses, and 
for irrigation, without which most lands are unproductive. 
It is also stated that speculators are seeking to appropriate 
the percolating water, by getting title to some part of a water- 
shed or slope, and by running canals and tunnels, and by 
sinking, to obtain water for sale. It is asserted that the lands 
naturally made moist by i>ercolating water are veiy pro- 
ductive, and were first settled upon, and have been most 
highly improved; and he asks whether these lands are to be 
converted into deserts because speculators may pump and 
carry away to some distant locality the subsurface waters 
which rendered the land fertile. Certainly no such case as 
this has come before a court, or could well exist in England, 
or in the eastern states. 

It is often asserted that Adan v. BlundM, 12 Mees. ft W. 
824, decided in Exchequer Chamber, in 1843, was the first case 
m England in regard to percolating water. This shows how 
unimportant, relatively, the subject is in England. It was an 
action for damages occasioned by working a coal-mine on 
adjoining land, which interfered with water which was flow- 
ing underground to plaintiff's spring. The court instructed 
the jtiry, ''that if the defendants had proceeded and acted 
in the usual and proper manner in the land for the purpose 
of working and mining a coal-mine therein, they might law- 
fully do so." This instruction was held to be correct, and 
that is the real force and effect of the decision. But the chief 
justice pointed out some respects in which the right to water 
flowing in an open visible stream differs from an underground 



142 Katz v. WAiiKiNSHAW. [141 CaL 

flow by percolation. The main difference, so far as ooncema 
the question under consideration, was, that peroolation was 
occult, the regulation of which was a difficult matter. One 
who disturbed the course of percolating water by digging upon 
his own land could not tell whether he would drain his neigh- 
bor 's well, nor could the person injured demonstrate that such 
was the cause of the injury. So. too, when one diverts water 
from a visible stream, the fact and the effect are at onoe 
known, while as to percolating water its course may be ob» 
structed or changed without the intent to do so, and without 
knowing that such would be the effect of what was done. 
His lordship, the case being one of first impression, quotes 
a passage from a civil-law writer to the effeet that when one 
digging upon his own land drains his neighbor's well, sueh 
neighbor has no cause of action : 8% nan animo vicini nocendi, 
sed suum agrum meliorem f(iciendi, id fedi. His lordship, 
however, although the case did not require it, disregarded the 
qualifications found in the civil law, and held that the case 
was not governed by law which applies to flowing streams, 
''but that it rather falls within that principle which gives 
to the owner of the soil all that lies beneath the surface; that 
the land immediately below is his property, whether it \b 
solid rock, or pervious ground, or venous earth, or part soil 
and part water; that the person who owns the surface may dig 
therein, and apply all that is there found to his own purposes 
at his free will and pleasure; and that if, in the exercise of 
this right, he intercepts or drains off the water collected 
from underground springs in his neighbor's well, this in- 
convenience to his neighbor falls within the description of 
damnum absque injuria, which cannot become the ground of 
an action." 

This statement has been frequently quoted, both in Eng- 
land and in this countiy, and has been generally adopted as 
a correct statement of the law upon the subject. In Actofi 
V. Blundell, 12 Mees. & W. 324, as has been said, the working 
of a mine upon an adjoining estate drained certain springs 
on plaintiff's land. It would have been sufficient to defeat 
plaintiff's action to have said that the working of a coal-mine 
in a proper manner is a reasonable use of land, and that it 



Nov. 1903.] KaTZ v. WAIiKlNSHAW. 143 

was without malice or an intent to injure plaintiff. It is a 
general rule — ^in fact a universal principal of law — ^that one 
may make reasonable use of his own property, although such 
use results in injury to another. But the maxim, Cujtis est 
solum, ejus est usque ad inferos, furnishes a rule of easy 
application, and saves a world of judicial worry in many 
cases. And perhai)s in England and in our eastern states 
a more thorough and minute eonsideration of the equities 
of parties may not often be required. The case is very differ* 
ent, however, in an arid country like southern California, 
where the relative importance of percolating water and water 
flowing in definite watercourses is greatly changed. 

And it seems to me a great mistake is made in supposing 
that if the plenary property of a landowner in percolating 
water is denied, the alternative is to apply to such water all 
the rules which apply to the use of water flowing in water- 
courses having defined channels. The entire argument for 
what may be called the cujus est solum doctrine consists in 
showing that some recognized regulation of riparian rights 
would be inapplicable. It is said, for instance, that the law 
of riparian rights requires each proprietor to permit the 
water to flow as it was accustomed to flow. Apply this 
rule to subsurface water, and no one could drain his 
land, for he thereby prevents the water from flowing 
as it was accustomed to flow by percolation to his neigh- 
bor. The common-law method in the supposed case would 
be to apply the principle to the new case, although some 
judge-made rule as to how it shall be applied might 
stand in the way. The principle is clearly applicable. 
A riparian owner may not divert the water because he would 
thereby injure his neighbors who have equal rights in the 
stream. Still he may take a reasonable amount from the 
stream for domestic purposes, and that may equal the entire 
flow, although he thereby injures his neighbors. It is a 
question of reasonable use and that applies both to the land 
of the person disturbing the percolation and to adjoining 
land. He may cultivate his land, and for that purpose 
ordinarily may drain it, and plow it, or clear it from forests, 
although all these operations may affect the flow of water to 



144 Katz v. Walkinbhaw. [141 CaL 

the lower proprietor, both in the wateroonne and by peroo- 
lation. He was allowed to become the owner for those pur- 
poses, and with the understanding that ail other proprieton 
have the same right to use their land. The maxim, Sic uiere, 
etc., plainly applies as between such proprietors, very much 
as it does between different riparian proprietors upon the 
same stream. 

The title to all land is held subject to this maxim. Such 
o>vnership is ''but an aggregation of qualified principles the 
limits of which are prescribed by the equality of rights, and 
the correlation of rights and obligations necessary for the 
highest use of land by the entire community of proprietors." 
{Thompson v. Androscoggin etc, Co., 54 N. H. 545.) 

Proprietary rights are limited by the common interests of 
others, — ^that is, to a reasonable use, — and such use one may 
make of his land, though it injures others. This proposition 
is generally recognized, but for some reason has not always 
been recognized by the courts when considering the subject 
of percolating water, although all rights in respect to water 
are peculiarly within its proyince. 

This rule of reasonable use answers most effectually the 
main argument against recognizing any modification of the 
cujus est solum doctrine as applied to percolating water, al- 
though in a majority of the cases which are claimed as au- 
thority against the rule of reasonable use the court takes 
pains to note that the act which disturbs the percolating water 
was in using the land in the usual manner and without the 
intent of injuring a neighbor. 

Among the English cases, Chasemore y. Richards was most 
carefully considered. The village of Croydon was situated 
upon an extensive plain near the head-waters of the river 
Waundale, and a goodly portion of the permanent flow of 
the river came by percolation from this plain. 

The village had caused a large well to be dug about a 
quarter of a mile from the river, and was pumping from it 
five or six hundred thousand gallons of water daily for the 
use of the town. Plaintiff was a riparian proprietor upon the 
river below, and had a mill which was operated by the waters 
of the river. The pumping naturally diminished the flow 



Nov. 1903.] Katz v. Wai^kinbhaw. 145 

and prevented the use of the mill as efficiently aa before. AU 
the facts were admitted or found to exist. 

The case was first decided in Exchequer Chambers in favor 
of the defendant, Mr. Justice Coleridge dissenting. (2 Hurl. 
& N. 168.) The dissenting opinion presents the doctrine of 
reasonable use. 

The case was taken to the House of Lords. (7 H. L. Gas. 
349.) There the case was most elaborately and ably argued, 
and the view in regard to reasonable use was fully presented. 
A case was made and the opinion of the judges was solicited. 
The judges held unanimously for the defendant, sustaining 
fully the cujv^ est solum doctrine without qualification, and 
this was affirmed by the house. The matter mainly discussed, 
however, was the plaintiff's claim that he had a prescriptive 
riisfht to the water. The court held that riparian rights are 
not derived by prescription, but the right to the water iS 
ex jure naturae. This settled the main contention, and little 
more was said, except to refer to the cases in which the 
rights to percolating waters are discussed. Lord Wensley- 
dale, however, who had doubts, pronounced an opinion whica 
seems to me in accord with the views I am trying to express. 

The doctrine of reasonable use has been recognized in 
many cases in the United States, — ^impliedly in most, as I 
have stated, but expressly in some. 

Wheatley v. Baugh, 25 Pa. St. 528,^ is one of these, and 
is remarkable in that the court states as strongly as possible, 
and with approbation, the cujus est solum doctrine. It is 
even said that the opposite doctrine (applying to such water 
the rule as to riparian rights) would amount to total abroga- 
tion of the rights of property. It is said one could not clear 
or cultivate his land or build a house without interfering 
with percolating water; and even if rights were admitted 
to exist, the difficulty of enforcing them would be insurmount- 
able. I think I have shown that the admitted right to a 
reasonable use of the land and of the water answers all these 
objections. To my mind this is so obvious that I can but 
wonder that such objections have ever troubled the judici- 
ary. And yet, notwithstanding this insistence upon the iiilo 



1 64 Am. Bee. 721, and note^ 
CXLLOaL— 10 



146 Katz v. Walkinshaw. [141 CaL 

which apparently ignores all equities of others than the owner 
of the soil in which the water is found, the court felt obliged 
to, and did, in unequivocal words, declare that the use of it 
must be reasonable. The proprietor may make a reasonable 
use of his own land, although in so doing he obstructs or 
changes the percolation of water to or from his neighbor's 
land. 

But by far the most satisfactory case upon the subject is 
Bassett v. Salisbury Mfg. Co., 43 N. H. 569.* That was a 
most elaborately considered case, and this precise question is 
discussed with a fullness and ability which I am not so vain 
as to think I could improve upon. I would like to transcribe 
the entire argument, but as it is accessible to the profession, 
I need only say I adopt it in fidl. The decision was ap- 
proved in Swett v. Cutis, 50 N. H. 439.« 

Smith V. City of Brooklyn, 18 App. Div. 340, 46 N. T. 
Supp. 141, was in some ways a counterpart of Chasemore v. 
Richards. The city of Brooklyn constructed in Queens 
County culverts, aqueducts, reservoirs, and conduits, and dug 
deep trenches to intercept percolating waters, and further 
sunk in the process earth-wells, and put in pumps to obtain 
the water with which the soil, which it owned, was saturated. 
It thus procured for the use of the city a large amount of 
water. Plaintiff owned a farm distant from these water- 
works about twenty-four hundred feet. Upon the land was a 
small brook, in which he had placed a dam, which he used for 
purposes of boat-building and for cutting ice. The brook 
had carried water all the year round. The operations of the 
defendant rendered this brook entirely dry, and deprived the 
]ilaintiff of his income. 

Here is a case like that of the village of Croydon. De- 
fendant intercepted percolating water upon its own land 
before it had reached a watercourse. It did not drain water 
from a defined stream, but the water was prevented from 
reaching the stream, which was thereby as effectually de- 
stroyed as it could have been by draining the water from it. 

Judge Hatch, who wrote the opinion in the appellate divi- 
sion of the supreme court, begins by quoting the prevailing 
doctrine in regard to percolating water, from PixUy r. 



1 SZ Am. Dee. 170. SO Am. Bep. 276, and note. 



Nov. 1903.] Katz v. Walkinshaw. 147 

Clark, 35 N. T. 520:^ "An owner of the soil may divert pei- 
eolating water, consume or cut it off with impunity. It is the 
same as land, and cannot be distinguished in law from land." 
He says this proposition must be admitted, but nevertheless 
a case cannot be found in this country ** where the right has 
been upheld in the owner of land to destroy a stream, a spring, 
or a well upon his neighbor's land, by cutting off the source 
of its supply, except it was done in the exercise of a legal 
right to improve the land, or make some use of it in connection 
idth the enjoyment of the land itself, ^^ I have italicized the 
last clause, as it contains the qualification found in the civil 
law, upon which the English rule is professedly based, and ex- 
presses the principle for which I contend. The leai*ned judge 
admits that the English cases go further, but says that the 
American cases have not gone further. 

The learned court gives a concise statement of the reasons 
given by the English courts for not appl3dng to percolating 
water the same principle which governs the right of riparian 
proprietors, and agrees with Justice Coleridge and Lord 
Wensleydale that they are insufScient. The court recognized 
the right of the landowner to percolating water, but says 
the right must be exercised with reference to the equal right 
of others in their land. He says one may as well claim the 
right to tunnel into his neighbor's land and take out valuable 
minerals, as to drain from it water which is also parcel of it, 
for sale. The peculiar nature of the property which enables 
one to take it by drainage does not justify the taking save 
in the usual and reasonable use of his own land, — ^in other 
words, for the proper use and betterment of his own property. 

Allusion is made in the opioion to the rule, inconsistent 
with the cuius est solum doctrine, that you cannot do anything 
on your land which will drain water from a visible stream 
or natural pond upon the land of another. In Canal Co. v. 
Shugaer, L. B. 6 Ch. App. Cas. 483, Lord Hatherley said: 
**You have a right to all the water which you can draw from 
the different sources which may percolate underground; 
but that has no bearing at all on what you may do with regard 
to water which is in a defined channel, and which you are 
not to touch. If you cannot get at the underground water 
without touching the water in a defined surface channel, 1 

191 An. D68. 71. 



148 K^TZ V. Walkinshaw. [141 CaL 

think you cannot get at it at all.' ' It is well said that this 
decision cannot stand with Chasemore v. Bichards, even 
though the court may say that it oan« 

If a landowner owns the water percolating in his soil, as he 
does the rock, minerals, and earth, why may he not take it 
in such a caset And what difference is there in destroying a 
stream or natural pond by drawing water from it through 
percolation or by preventing it from flowing into the stream 1 
The effect is the same, and knowledge of the inevitable effect 
of the act is the same. And this rule would prevent » land- 
owner from draining a marsh, or even from clearing or cul- 
tivating his land, when these operations would tend to in- 
crease the percolation from a stream or natural pond upon 
a neighbor's land. This is one of the main arguments in 
support of the doctrine of Acton v. Blundell, 12 Mees & W. 
324. It seems here strangely to lose its force, as does also 
another reason for that rule, that when doing such acts the 
landowner could not reasonably anticipate the injury as prob- 
able. 

The court expressly applies the doctrine sic utere iuo to the 
case and afiSrms the judgment against the city. 

In the appellate court this judgment was affirmed. {SmiiK 
V. City of Brooklyn, 160 N. T. 357.) It is there treated, 
however, as a draining of water from plaintiff's brook and 
pond. Judge Hatch, in the supreme court, expressly states 
that defendant simply prevented the water from reaching 
the brook on plaintiff's farm. Perhaps either view may be 
taken of the facts. There was an immense saturated plain 
comi>osed of porous earth. Defendant's wells extended lower 
down than the bottom of the pond. The stream and pond, 
and all the springs, wells, and streams in the neighborhood, 
have been dry ever since the operations of the defendant 
Since the water was first drained out, surely there has been no 
percolation from the stream. This circumstance makes the 
case more like that in hand. Here was a vast quantity of 
water held in the soil, which constituted the common supply 
of many people. The defendant, pumping from wells on its 
own land, and taking only percolating water, exhausted this 
common supply. The court held that it could not be. The 
reasons would have been much more forceful had the case 
risen in an arid climate like San Bemardina 



Nov. 1903.] Katz v. Walkinbhaw. 149 

But this question was completely put at rest, so far as the 
state of New York is concerned, by the ease of Forbell v. 
City of New York, 164 N. T. 522.* It was a suit by another 
plaintiff to restrain the same operations considered in Smith 
V. City of Brooklyn, 18 App. Div. 840, 46 N. T. Supp. 141. 
Here there was no visible stream or pond on plaintiff's land. 
His injury was merely that the level of the water held in 
tlie soil was lowered to his injury. In stating the case the 
court said: ''The city makes merchandise of the large quan- 
tities of water which it draws from the wells that it has sunk 
on its two acres of land. The plaintiff doeb not complain 
that any surface stream or pond or body of water upon his 
land is thereby affected, but does complain and the courts 
below have found that the defendant exhausts his land of its 
accustomed and natural supply of underground or subsurface 
water, and thus prevents him from growing upon it the crops 
to which the land was and is peculiarly adapted, or destroys 
such crops after they are grown or partly grown«" This 
statement shows a striking similarity of the issues made in 
that case to those involved here. 

The court proceeds to state the usual doctrine in regard to 
percolating water and approves the doctrine for the cases 
in which it is properly applicable. No doubt the land pro- 
prietor owns the water which is parcel of his land, and may 
use it as he pleases, regard being had to the rights of others. 
It is not unreasonable that he should dig wells in order to 
have the fullest enjoyment and usefulness of his estate, or 
for pleasure, trade, or whatever else the land as land may 
serve. ''But to fit it up with wells and pumjM of such per- 
suasive and potential reach that from their base the defend- 
ant can tap the water stored in the plaintiff's land, and in all 
the region thereabout, and lead it to his own land, and by mer- 
ehandising it prevent its return, is, however reasonable it may 
appear to the defendants and its customers, unreasonable as 
to the plaintiff, and others whose lands are thus clandestinely 
sapped and their value impaired." 

Counsel for the plaintiff in that case contended that since 
plaintiff owned the percolating water in his own soil, the un- 
lawful draining of it away by the defendant was a trespass 
committed on his land. This contention was sustained, both 

170 Am. Bt. Bep. 66a. 



150 Katz v. Wamonbhaw. [141 CaL 

in the supreme court and in the court of appeals. The court 
further indorsed the opinion of Judge Hatch in Smith v. CUy 
of Brooklyn, from which I have made quotations. 

If the principle announced in these cases prevails here, the 
order granting a nonsuit and the judgment entered thereon 
must be reversed. It does not require a reversal of the rule 
laid down in Acton v. Blundell, which has been so often 
cited and indorsed, but only a holding that in certain cases 
there should be added the element of reasonable use, having 
reference both to the land belonging to the party who has dis- 
turbed the movement of percolating water and to adjoining 
land, and to land sensibly affected by such acts. Whatever 
the English rule may be the American cases either recog- 
nize the application of the rule of sic utere tuo to the subject, 
or they are cases in which it was wholly unnecessary to con- 
sider that subject. Such are the California cases. In the case 
of City of Los Angeles v. Pomeroy, 124 Cal. 597, the question 
might have been raised, and in the trial court, it may be, was, 
and in some of the instructions the rule laid down in Acton 
v. Blundell is asserted without qualification. Still this court 
was not called upon, and did not consider any such question. 
I think it clear that the American cases do not require us to 
hold that the maxim sic utere tuo does not limit the right of 
the landowner to the use of the subsurface water, but on the 
contrary all the cases in which the question has been discussed 
held, or admit, that such maxim should limit such right where 
justice requires it. Such, I think, is the proper rule. 

It follows that the court erred in granting the nonsuit, and 
the judgment is therefore reversed and a new trial ordered. 

Beatty, C. J., McParland, J., Van Dyke, J., Harrison, J., 
and Henshaw, J., concurred. 

Rehearing denied. 



Nov. 1903.] Vinson v. Los Angeles Pac. R. R. Co. 151 



[L. A. No. I860. In Bank.— Norember 28, 1903.] 

JENNIE VINSON et al., Respondents, v. LOS ANGELES 
PACIFIC RAILROAD COMPANY, AppeUant. 

Appkal pbom Judgment — ^Motion to Dismiss — FiOLUMs to File Tran- 
script — Settlement of Statement— Motion poe New Trial upon 
MmuTBS. — A motion to dismias an appeal from the judgment for 
failnre to file the transeript will be denied, th'^ngh more than forty 
dajB have elapeed after the perfecting of the appeal, where the 
transeript wae filed within forty days after the settlement of a 
statement on motion for a new trial made upon the minutes of 
the court, notwithstanding more than sixty days had elapsed after 
the entry of the order denying the new trial, before the statement 
WES settled, and no appeal was taken from the order. 

Id. — ^Independent Bights op Appeal — Use op Settled Statement. — 
The right of a litigant to appeal from the judgment, and his right 
to appeal from an order refusing a new trial, are distinct and sep- 
arate rights. A party appealing from the judgment has an inde- 
pendent right under section 950 of the Code of Civil Procedure, 
to have settled a statement of the case to be used upon such ap- 
peal, which is not limited by the existence of an appeal or right 
of appeal from the order refusing a new trial 

MOTION to dismiss an appeal from a judgment of the 
Superior Court of Los Angeles County. 

The facts are stated in the opinion of the court. 

John D. Pope, for Appellant; Bigelow & Dorsey, Amid 
Curiae, also for Appellant. 

Waters & Wylie^ for Respondents. 

HENSHAW, J.— This is a motion by the plaintiffs to dis- 
miss the defendant's appeal from the judgment of the trial 
court In Department the motion was granted, and the appeal 
was dismissed. Upon petition a reconsideration by the court 
in Bank of the question involved was ordered. The facts are 
accurately stated in the Department opinion, and are as 
follows: The ground of the motion is, that the transcript was 
not filed within forty days after the appeal was perfected 
Rule II of this court provides that: ''The appellant in a civiJ 



162 Vinson v. Los Angelbs Pac. B. R. Co. [141 Cal. 

action shall, within forty days after the appeal is perfected 
and the bill of exceptions and the statement (if there be any) 
are settled, serve and file the printed transcript of the rec- 
ord." The judgment was rendered in the court below on 
May 15, 1902, and the appeal was perfected on November 17, 

1902. It is conceded that if the time for filing the transcript 
began to run on November 17th, the appeal must be dismissed 
for failure to file the same within time. But the appellant 
claims that the time had been extended by the pendency of 
proceedings to settle a statement on motion for a new trial, 
and this presents the sole question in the case. The notice 
of the motion to dismiss was served and filed on January 10, 

1903. It is claimed that a statement on motion for a new 
trial was settled on December 16, 1902, and that within forty 
days after that date, but after the filing of the notice of mo- 
tion to dismiss, the transcript on appeal was filed. If the 
statement so settled was settled under authority of law and 
can be used on the appeal, the motion must be denied. 

The motion for new trial was made on the minutes of the 
court, and was denied in the court below on July 21, 1902. 
No appeal was ever taken from the order. The respondents 
contend that after the lapse of sixty days from the entry of 
the order, without the taking of an appeal, the right to have 
a statement settled upon the motion ceased, that the subse- 
quent settlement of the so-called statement was a mere idle 
and useless ceremony, and that the statement so settled is 
without force or effect. The appellant relies on section 950 
of the Code of Civil Procedure, which is as follows: ''On an 
appeal from a final judgment, the appellant must furnish 
the court with a copy of the notice of appeal, of the judg- 
ment-roll, and of any biU of exceptions or statement in the 
case, upon which the appellant relies. Any statement used 
on motion for a new trial, or settled after decision of such 
motion, when the motion is made upon the minutes of the 
court, as provided in section 661, or any bill of exceptions 
settled, as provided in sections 649 or 650, or used on motion 
for a new trial, may be used on appeal from a final judgment 
equally as upon appeal from the order granting or refusing 
the new trial." The contention of the appellant is, that the 
effect of this section is to give the party who intends to appeal 
from a judgment an independent right to have settled a 
statement of the case for use upon audi an appeal, and that 



Nov. 1903.] Vinson v. Los Angeles Pao. R. R Co. 153 

hj virtue of its provisions he is not limited to the use of such 
statements only as have been regularly and legally settled 
in the course of some proceeding upon motion for a new 
trial. 

We think the appellant's contention is sound and should be 
sustained. In Department it was held that, because the mov- 
ing party had lost by lapse of time his right to appeal from 
the order refusing his motion for a new trial, the trial court 
could not be compelled to settle the statement, and that any 
statement which the court might settle under such circum- 
stances would be void and would be stricken from the files. 
This would be quite true if the right of the appellant to 
the statement was absolutely limited by his right to appeal 
from the order, or if, in other words, as the Department 
opinion held, he must appeal from the order before he can 
exercise the right to use the statement upon his appeal from 
the judgment. We think, however, that this conclusion is 
erroneous; that it imposes onerous conditions upon the un- 
fortunate litigant who moves for a new trial upon the minutes 
of the court — a practice which by this court has been com- 
mended {McUcolmson v. Harris, 90 Cal. 262) — which are not 
brought to bear upon the litigant who moves for a nev* trial 
in any other way. We think, moreover, that the conclusion 
is in hostility to the spirit of simplicity in practice, pleading, 
and procedure which animates our code system. To illus- 
trate: If the motion for a new trial be made upon the bill 
of exceptions or upon the statement (Code Civ. Proc, sec. 659, 
subds. 2, 3), it is not necessary that the moving party should 
appeal from the order denying him a new trial as a condition 
to his right to use the bill of exceptions or the statement, 
upon appeal from the judgment, and no sound reason can be 
dLscovered to lead to the view that the legislature meant to 
make a distinction between those cases and that where the 
motion has been made upon the minutes of the court. Nor 
does it seem a satisfactory answer to say that the appellant 
in this case cannot have any statement prepared because 
he could not use the statement upon appeal from the order 
denying him a new trial. The law might require the trial 
court to settle such a statement without regard to the taking 
of an appeal from the order denying the new trial, the state- 
ment to be used upon appeal from the judgment, and we think 



154 Vinson v. Los Anoelbs Pao. R. R. Co. [141 CaL 

a ooDsideration of the code sections will disclose that the law 
contemplates that the trial judge should do precisely this 
thing. 

It is to be remembered that a litigant's right to appeal 
from the judgment and his right to appeal from the order 
refusing him a new trial are distinct and separate rights. 
He may waive either and rely upon the other. It is recog- 
nized that some, though not aU, of the propositions which 
may be advanced upon motion for a new trial may likewise 
be urged upon appeal from the judgment. The litigant who 
has failed in his motion for a new trial may conclude that all 
of the propositions which he desires to argue to the appellate 
court can be presented upon appeal from the judgment with 
the accompanying papers which the law allows upon such 
appeal. He may decide as matter of economy to avoid the 
expense of two appeals, or he may take his appeal from tha 
judgment alone, under the conviction that the trial court was 
correct in its rulings as to such matters as can be raised 
only upon motion for a new trial, and hence that the appeal 
from the judgment aflPords him a complete remedy. There- 
fore, to say that because he has not prosecuted an appeal from 
the order refusing him a new trial, he must lose his right to 
present those points which arise upon his motion for a new 
trial, but which at the same time are proper to be presented 
upon his appeal from the judgment, is a construction so harsh 
as to be justified only by the express mandate of the law. Or 
it may be put in another way : Why should a litigant be com- 
pelled to take the useless and expensive procedure of perfect- 
ing an appeal which he does not care to prosecute, in order 
to preserve rights which the law accords him upon appeal 
from the judgment alone T And that the law does accord 
his these rights we think manifest from a reading of section 
950 of the Code of Civil Procedure. The first sentence of 
that section is mandatory, and declares that on an appeal 
from a final judgment the appellant must furnish this court 
with a copy of a bill of exceptions or statement of the case 
upon which he relies. And any statement settled after a 
decision of a motion for a new trial, when the motion is made 
upon the minutes of the court, may be used on appeal from 
a final judgment equally as upon appeal from the order grant- 
ing or refusing a new trial. There is in this no word as tQ 



Nov. 1903.] Vinson v, Los Angeles Pac. R. R. Co. 155 

the necessity of taking an appeal from the order denying 
the new trial as a prerequisite to the right to employ the 
statement on appeal from the judgment. It is a declaration, 
first, that the party appealing from the judgment has the 
right to use a statement settled after a decision upon his 
motion for a new trial upon appeal from the judgment, 
coupled with the mandatory provision that he must present 
such a statement to this court. These being his correlative 
rights and duties, it seems plain that he may demand of the 
trial court the settlement of a proper statement, not to be used 
upon an appeal from the order denying him a new trial, but 
to be used upon his appeal from the judgment which he has 
already taken, because the law says that he may so use it, 
and further says that he must present it to this court if it 
contains any propositions upon which he relies for a reversal. 

And this will be found strictly within the reasoning of 
this court in Wall v. Mines, 128 Cal. 136, and in Kelly v. 
Ning Yung etc, Assn., 138 Cal. 602. Of course it would be 
a vain thing to compel the trial court to settle such a state- 
ment if its only purpose was to be used upon appeal from 
the order denying a new trial, because the right to appeal 
from that order has been lost, but it is far from being a 
vain thing in the contemplation of the law as above set forth 
that the appellant from the judgment has the right to use 
such a statement upon appeal from the judgment, and must 
present it to this court upon such appeal. 

We conclude, therefore, that under the circumstances here 
set forth a litigant moving for a new trial on the minutes of 
the court, has the independent right to enforce the settle- 
ment of a statement after motion denied (even though he 
does not appeal from that order), and to use it upon his 
appeal from the judgment. 

Ihe motion to diamisa is therefore denied. 

Beatty, C. J., Lorigan, J., and Van Dyke, J., concurred 



156 CuMMiNGs V. Keasnkt. [141 CaL 



[L. A. No. 1182. In Bank.— Norember 88, 1903.] 

SARAH C. CUMMINGS, Appellant, v. W. R. KEARNEY, 
City Treasurer of Santa Barbara, and U. YNDART, Re- 
spondents. 

Oedeb Dbnyino Nxw Trial — Bevdew upon Appeal. — ^Upon appeal from 
an order denying a new trial, withont an appeal from the judg- 
ment, the suffieieney of the pleadings and of the judgment, as being 
the legal conclusion from the facts found, cannot be questioned. 

Id. — Street Improvement — Sals under Bond— Injunction — ^Finding 
— Waiver of Objection — Estoppel. — ^Upon appeal from an order 
denying a new trial, in an action to enjoin the sale of plaintiff's 
lot under a bond for a street improvement, a finding sustained by 
the evidence that plaintiff and her predecessor in title, by their 
conduct, waived objection to the improvement, and acquiesced 
therein and received the benefit thereof, and consented to and rati- 
fied the proceedings, and took no appeal to the city council, and 
did not object to the bond, nor pay or offer to pay the assessment 
or bond, or any part thereof, and that plaintiff is estopped by said 
conduct from obtaining equitable relief, is conclusive of the case. 

Id.— Bequest for Improvement and Assessment— Fraud upon Bond 
Owner. — ^Where it appears that plaintiff's predecessor in title re- 
quested the improvement, and requested the superintendent of streets 
to deliver the assessment and diagram upon the faith of which the 
work was done, and acquiesced in all the proceedings without ob- 
jection to any step, his acts and conduct, if allowed to be ques- 
tioned, would work a fraud upon the owner of the bond which tlis 
law will not tolerate. 

APPEAL from an order of the Superior Court of Santa 
Barbara County denying a new trial. W. S. Day, Judge. 

The facts are stated in the opinion. 

B. F. Thomas, for Appellant 

Thomas McNulta, and Richards & Carrier, for Respondents. 

COOPER, C. — This action was brought to enjoin the 
threatened sale of plaintiff's lot in the city of Santa Barbara 
for the amount due upon a bond owned by defendant Yndart, 
which was issued for street-work and improvements upon the 



Nov. 1903.] CuMMiNGS V. Kearnkt. 157 

lot now owned by plaintiff. Findings were filed, upon which 
judgment was entered for defendants. Plaintiff made a 
motion for a new trial, and this appeal is from the order 
denying said motion. 

As no appeal has been taken from the judgment, the suffi- 
ciency of the pleadings and of the judgment as being the 
l^al conclusion from the facts found, cannot be questioned 
on this record. 

The plaintiff's counsel has devoted much of his brief to 
a discussion of certain alleged irregularities and defects in the 
assessment, specifications, and contract under which the work 
was done. From the view we take of the oase, it is not 
necessary to examine nor discuss the regularity of the pro- 
ceedings by which the lien was created and the bond issued. 
The property belonged to L. C. Cummings, the husband and 
predecessor in interest of plaintiff, at all times during the pre- 
liminary proceedings leading up to the improvements and 
issuance of the bond. 

The court found: **That plaintiff by the conduct of herself 
and her predecessor waived any objection to the proceedings 
connected with said improvement and consented to and ac- 
cepted and ratified said proceedings, and acquiesced in said 
improvements and received the benefit thereof, and the benefit 
received from the issuance of said bond ; that plaintiff did not 
nor did her predecessor appeal to the said council at any time 
concerning the irregularity or invalidity of any of the pro- 
ceedings, or in reference to any of the work performed, nor 
did either of them notify said city treasurer before the issu- 
ance of the bond referred to in the complaint, that it was 
her or his desire that no bond be issued, and the plaintiff has 
never paid or offered to pay the amount of such assessment 
or bond or any part thereof, and plaintiff is estopped by 
reason of said conduct from obtaining any equitable relief 
from this court in the premises, and no part of said assess- 
ment or bond has been paid by any person." 

The above finding, so far as it is a finding of facts, and 
so far as it contains conclusions of law, is supported by the 
evidence and the probative findings and is conclusive of the 
ease. 

There is evidence to show that on the thirtieth day of 



158 CUMMINGS V. ESARNET. [141 Cai. 

September, 1893, the owners of the abutting lots on the street 
where the unprovements were to be made entered into a 
written contract with one Long, the superintendent of streets, 
which contract recited the fact that a contract for doing the 
proposed work had been awarded by the city council to one 
Newberry; that notice of the award of said contract had 
been duly published and posted according to law; that the 
owners had elected to take the said work, and that the time 
for doing it had not expired. The contract further provided 
that the said owners should do the work so awarded to New- 
berry, and contained stipulations as to the specifications and 
manner in which the work should be done; that upon its 
completion the superintendent of streets should duly make 
and issue an assessment and diagram and attach a warrant 
thereto as provided by law; that the city of Santa Barbara 
should not be liable for any of the costs of the work. This 
contract was signed by the property-owners and by plaintiff's 
predecessor as follows: **L. C. Cummings, by B. P. Thomas, 
agent." Thomas is the attorney for plaintiff, and was then 
the attorney for her husband, and his authority for signing 
the contract was a telegram from Portland, Maine, dated 
September 29, 1893, as follows: **To B. F. Thomas. I hereby 
authorize you, as agent, to sign paper contract for street 
work. Lincoln C. Cummings." The contract contained the 
proper affidavit that the parties whose signatures were at- 
tached were the owners or agents of the owners, and that the 
frontage set forth in the contract was correct. This affidavit 
was signed '*L. C. Cummings. (Agent) B. P. Thomas." A 
proper bond was given to the effect that the owners and 
parties to the contract would faithfully perform the work, 
which bond was signed in the same manner, "L. C. Cummings. 
B. P. Thomas, agent." The bond was duly approved. A 
proper assessment was made, showing in detail the cost of the 
work, and fixing the rate per front foot. A warrant, certifi- 
cate of the city engineer, and diagram were made. The 
warrant stated that serial bonds would be issued to represent 
the cost of the work, in manner as provided by law, giving 
the rate of interest, the time they were to run, and a notice 
that a bond would issue to represent each assessment of fifty 
dollars or more. This assessment certificate and diagram were 
duly recorded Pebruary 7, 1894. The following instrument 



Nov. 1903.] CuMMiNGS V. Keabnby. 159 

in writing waa then made by the property-owners, to wit: 
*'We, the undersigned property-owners on De la Vina Street, 
between Micheltorena and Islay streets, who entered into 
the contract for grading, etc., and sewering said portion of 
De la Vina Street, hereby authorize the superintendent of 
streets of the city of Santa Barbara to issue and deliver to 
O. W« Boeseke the assessment and diagram for said work." 
This authorization was duly signed by the owners and by 
"L. C. Cummings, by B. P. Thomas, agent." 

0. W. Boeseke made the proper affidavit to the contractor's 
return, showing demand and receipt of payment of portions 
of the assessment, and that the assessment involved in this 
action was unpaid as follows: ''No. 3. Demand made upon as 
owners, unknown owner. No. 3. March 7th, 1894, assessment 
due and unpaid, $473.45." 

The above certificate was made at the close of the work. 
It was here admitted: ''That on the twentieth day of March, 
1894, the superintendent of streets certified by written instru- 
ment to the city treasurer of the city of Santa Barbara a 
complete list of all assessments which remained unpaid, which 
amounted to fifty dollars or over upon the assessment and 
diagram issued for the work of said improvement (being the 
improvement in question here), upon the lot owned by the 
plaintiff and amount of assessment unpaid thereon, to wit, 
$473.45 ; that plaintiff did not, nor did her predecessor, appeal 
to the city council at any time concerning the irregularity or 
invalidity of any of the proceedings had in reference to any 
work performed, nor did eHher of them notify said city 
treasurer before the issue of the bond referred to in the com- 
plaint that it was her or his desire that no bond be issued; 
that plaintiff has never paid or offered to pay the amount 
of such assessment or bond or any part thereof." 

It does not appear at what time plaintiff became the owner 
of the lot, but it seems to be conceded that it was after all the 
proceedings to which her predecessor in title assented. The 
action was commenced in August, 1899. It appears clear to 
us that upon the plainest principles of honesty and fair deal- 
ing the plaintiff is estopped by the conduct of her predecessor 
in title from questioning the validity of the bond for any 
irregularity in the preliminary proceedings. 



160 CuMMiNGS V. Kearney. [141 CaL 

L. C. Cummings was a party to the contract and sul>sequent 
proceedings. At hia request the improvements were made. 
He received, or is presumed to have received, the benefit of the 
money expended. He made no appeal to the city council, nor 
in any way made known his objection to any step in the 
proceedings. He requested the superintendent of streets to 
deliver to Boeselce the assessment and diagram upon the faith 
of which the work was done. His acts and conduct, if allowed 
now to be questioned, would work a fraud upon the owner of 
the bond. ''Where a man has been silent when in conscience 
he ought to have spoken he will not be allowed to speak 
when conscience requires him to be silent.'' His silence was 
not the only culpable thing, but the direct acts and requests 
evidenced by the writings herein set forth. The case of Coi- 
lender v. Patterson, 66 Cal. 357, is directly in point. It was 
there said: **A party cannot for value assign a contract and 
assessment and then set up the defense that they are invalid 
because not in compliance with the street law. The law does 
not tolerate such a procedure.'* 

The views herein expressed are not in conflict with Union 
Pav. etc. Co. v. McOovern, 127 Cal. 638. In that case the 
work had not been done. The court said: **In the agreement 
between Tucker and the property-owners they do not purport 
to assign to him an assessment for work tiiat had already been 
done for them, or any existing obligation in their favor from 
which a warranty of its validity might be implied; they 
merely agreed to assign a contract not yet entered into." If 
the contract under which the work was done authorized the 
contractor to recover the money, the law authorized the issu- 
ance of the bond. The holder of the bond paid the money 
upon the faith of the prior transactions and is entitled to be 
protected by them. 

We advise that the order be affirmed. 

Chipman, C, and Gray, C, concurred. 

For the reasons given in the foregoing opinion, the order 
appealed from is affirmed. 

McParland, J., Van Dyke, J., Shaw, J^ 
Angellotti, J., Lorigan, J., Uenshaw, J. 



Nay. 1903.] Swipt v. Occidental Mining bto. Co. 161 

[L. A. No. 1037. In Bank.— NoTembw 88, 1903.] 

0. B. SWIPT et al., Appellants, v. OCCIDENTAL MINING 
AND PETROLEUM COMPANY, and J. J. HIGH, Be- 
spondents. 

Ou» BnmKO Nsw Teul— Bxvisw upon Apfxal.— Upon appeal from 
an order denying a new trial, this eourt ia Umited in its review to 
tbe gronnda upon whieli the new trial waa aaked, and mnnot re- 
view the raiBeieney of the pleadinga or findinga to 8api>ort the judg- 
menty or eonaider any errora in the eonelnaiona of law or in the 
Jadgment. 

Id. — ^Decision aioaikst Law — Gbottnd pob Niw Trial. — A motion for 
new trial on the ground that the "deeiaion is against law," is only 
penniaaible when a new trial ia the appropriate means of eorreeting 
the error in the dedsion, aa where omitted findings upon material 
iasnea are essential to be nkade. It eannot be made to eorreet any 
eonelnsion of law from the findings, or any deeision against law, 
for the eorreetion of which a new trial would be vain or useless. 

Is. — Sprodpzcations of iNBumcxxNOT or EviDKMOx— Object or Bulb. 
— 8peeifi«ations of the insuffleieney of the evidence to sustain the 
findings, which elearty designate the findings and parts of findings, 
which it ia claimed the evidence does not justify^ are not objec- 
tionable. The object of the rule requiring these specifications is 
to shorten the statement l^ excluding everything irrelevant to the 
q>ecified fact, and to notify the opposing party of the particular 
finding called in queation, that he may see that the statement fairly 
and fully presenta the evidence bearing on that particular matter; 
and thia object accomplished, the statute is satisfied. 

IB. — Ejxctmxnt— Cboss-Oomplaint — Oil Lbasb — ^Bight or Bxnbwal— 
Brbaoh or OoHDinoNB — Findings against Evidence. — In an action 
of ejeetBMnt, where the defendant set up by way of cross-com- 
plaint a right of renewal of a lease of oil-land from the plaintiff, 
whid& nnade a r^^-^ewal of the lease depend upon the performance 
of conditions, which the court found, generally and specifically, 
had been eomplied with, id»ereaa the evidence clearly showed a 
breach of the conditions, an order denying a new trial must be 
reversed for insufGlciency of the evidence to sustain the fijidiugs. 

Id. — ^EvmENOB— UsB or Oil iob Fuel — Oustom — Pbaotioal Constbuo- 
TiDN or Lease. — ^Where the terms of the lease were not dear as to 
the right of the lessee to use oil for fuel, though evidence of a 
custom to that effect among oi) proepectors waa not admissible, 
evidence was admissible to show that the plaintiffs acquiesced in 
the burning of oil in the work of development, and made no de- 
mand on account of the oil so used; and such evidence sufficient^ 
ertablishes a practical construction of the lease by the parties, and 
■oatains a finding according to such evidence. 
CXLL CaL— 11 



162 SwiPT V. Occidental Mintkg etc. Co. [141 Cal. 

Id. — Clause as to Bights or Miners — Misuss or Wobd. — A elaiise in 
the lease conferring apon the lessees <*8ueh other rights and priT- 
ileges as are vested in mines under the laws of the United States 
and of the state of California/' cannot be treated as meaningless 
beeause of the use of the word '* mines," instead of ''miners/' and 
is intended to confer upon the lessees the rights conferred upon 
prospectors of mining-ground by the laws of this state and of the 
United States. 

T^. — FoErEiTUMB or Lease — Waiveb — Bights or Lessor — ^Breach or 
Conditions or Benewal. — The waiver of a forfeiture of the lease 
for breach of conditions, by not insisting thereupon, could not 
affect the right of the lessor to defeat a renewal of the lease for 
breach of conditions upon the faithful performance of which the 
right of renewal depended. 

Id. — Development — Amount or Expenditure — Cessation op Work. — 
The amount expended in the development of oil under the lease 
was properly proved; but the amount expended in the beginning 
of the operations could not excuse a subsequent cessation of work, 
in breach of a condition of renewal of the lease. 

Id. — Evidence — Expectation op Stockholders and Ddlbctobs. — Evi- 
dence was not admissible to prove that the stockholders and di- 
rectors of the defendant corporation expected and counted upon a 
renewal of the lease. Without a performance of the conditions of 
the lease, their expectations were of no avail, and with it unnec- 
essary. 

Id. — Understandiko or Parties — Meaning or Contract. — The court 
properly excluded evidence to show the understanding of the par- 
ties touching the meaning of the contract at the time it was exe- 
eated. 

APPEAL from an order of the Superior Ciourt of Santa 
Barbara County denying a new trial. H. T. Williams, Judge 
presiding. 

The facts are stated in the opinion of the court 

B. F. Thomas, for Appellants. 

The evidence of custom was not admissible, there being no 
showing that the parties contracted in relation thereto. (Law- 
son on Usages and Customs, sec. 38; Pittsburg etc. R. R. v. 
Nash, 43 Lid. 423; Chicago etc, R, R, Co. v. Dickson, 143 111. 
368.) A waiver of a right of forfeiture of the lease does 
not include a waiver of condition precedent to a renewal of 
the lease. (Taylor on Landlord and Tenant, 6th ed., sees. 



Nov. 1903.] Swift v. Occidental Mining etc. Co. 163 

47, 339; Duffidd v. Michaels, 97 Fed. 825.) The evidence 
does not sastuin a right to a specific performance of the con- 
tract for renewal. (Waterman on Specific Performance, sec. 
452; Wood on Landlord and Tenant, sec. 416; Pomeroy on 
Contracts, sees. 334, 357; Jones v. Durrer, 96 Cal. 99; Mo- 
Olynn v. Moore, 25 Cal. 384 ; Baird v. Milford Land etc. Co., 
89 Cal. 552; 3 Poraeroy's Equity Jurisprudence, 1st ed., sec. 
1407.) Erroneous conclusions from the findings constitute 
a decision against law. {Bosquett v. Crane, 51 Cal. 505.) 
The insufficiency of the cross-complaint to sustain the decision 
is a decision against law, which may be considered on appeal 
from an order denying a new trial. (Simmons v. Hamilton, 
56 Cal. 495.) The specifications of insufficiency of the evi- 
dence to sustain the findings were proper in form. {Kyle v. 
Craig, 125 Cal. 107; DeMolera v. Martin, 120 Cal. 544; Newell 
V. Desmond, 63 Cal. 242; Harnett v. Central Pacific R. R. 
Co., 78 Cal. 32; Smith v. Ellis, 103 Cal. 294; Livestock Q. P. 
Co. V. Union Stockyard Co., 114 Cal. 447.) 

E. W. Squier, and John J. Squier, for Respondents. 

The court cannot upon this appeal from an order denying 
a new trial consider the sufficiency of the pleadings or of the 
findings to support the judgment. {Brison v. Brison, 90 Cal. 
323; Tompkins v. Montgomery, 123 Cal. 219; Wheeler v. 
Bolton, 92 Cal. 159, 167; Hall v. Susskind, 120 Cal. 559, 565 
In re Doyle, 73 Cal. 564; Byzbee v. Dewey, 128 Cal. 322 
Rauer v. Fay, 128 Cal. 523 ; Schroeder v. Pissis, 128 Cal. 209 
Riverside Water Co. v. Oage^ 108 Cal. 240; Kirman v. Hun- 
newill, 93 Cal. 526; Bode v. Lee, 102 Cal. 583.) Equity 
will decree specific performance of a covenant to renew a 
lease without regard to the materiality of the remedy. (Pom- 
eroy on Specific Performance, 2d ed., sec. 9 ; Pry on Specific 
Performance, sec. 948; McCarger v. Rood, 47 Cal. 138.) The 
specifications of insufficiency of the evidence to justify the 
findings are not sufficient. (Code Civ. Proc, sec. 659; Kyle 
V. Craig, 125 Cal. 107, 116; De Molera v. Martin, 120 Cal. 
644; Spotts V. Hanley, 85 Cal. 155; Taylor v. Bell, 128 Cal. 
806.) The defendants have waived any breach of the condi- 
tions of the lease, and should not be heard to insist upon this 
in resistance to a specific performance of the covenant of re- 



164 Swift v. OcciDsm^AL Miniko etc. Co. [141 C«L 

newal. (Waterman on Specific Performance, 1st ed., sec. 455; 
McGlynn v. Moore, 25 Cal. Gd4; SteeU v. Branch, 40 Cal. 3, 
13; Jones v. Durrer, 96 Cal. 96; Wtimer Bros. v. Weid, 108 
Cal. 569 ; Ireland v. Nichols, 46 N. Y. 415; Cawper v. Duryea, 
90 N. Y. 599; Smith v. Rector St. PhUip's Church, 107 
N. Y. 610; Webster v. NichoU, 104 HI. 172; JoUy v. flinyte, 
16 Wis. 284; Oamhart v. J?$nn«y, 40 Mo. 449;^ HukiU ▼. 
Jlfyers, 36 W. Ya. 639.) Proof that defendant was relying 
on a renewal of the lease was proper. {Maynard v. Ftre- 
man's Fund Ins. Co., 84 Gal. 48 f Ooodspeed v. East Haddam 
Bank, 22 Conn. 530.') Evidence of custom in regard to the 
use of oil for fuel was proper. {Coleman v. Clements, 23 
Cal. 245; Webb v. Day, 111 CaL 571; Morton ▼. Solamho 
Min. Co., 26 Gal. 528.) 

BEATTY, C. J.— The appeal in this case is from an order 
overruling a motion for a new trial. After affirmance of 
the order in Department, a rehearing was granted, because 
of the error there oonunitted in holding that the specifications 
in the statement were insufficient to entitle the appellants 
to a review of the findings of fact for the purpose of deter- 
mining whether they were sustained by the evidence. 

The first part of the Department opinion, however, contain- 
ing a statement of the case and disposing of certain conten* 
tions of the appellant, to the effect that the cross-complaint 
of defendant was insufficient to sustain the judgment, and the 
findings insufficient to sustain the conclusions of the superior 
court, is approved and readopted as the opinion of the court 
in Bank, as follows: — 

''The complaint alleges the ordinary action in ejectment to 
recover possession of eighty acres of land leased by plaintiffs 
to the assignors oi defendant Occidental Mining and Pe- 
troleum Company for mining purposes. Defendant High was 
an employee of defendant company, and has no interest in 
the subject-matter of the action. In the opinion the word 
'defendant' will have reference to the company. Defendant 
filed an answer, and also a cross-complaint, both of which were 
amended by leave of court. 



193 Am. Dec. 303. t58 Am. Dee. 4891. 

1 91 Am. Dee. 672, and note pp. 680, 681. 



Nov. 1903.] Swift v. OodDBNTiOi Minino etc. Co. 165 

"The amended cross-complaint of defendant alleges: The 
execution of a lease of the land by plaintiffs, setting forth 
the document in haec verba; the assignment to defendant, 
performance by defendant and its predecessors ; offer to exe- 
cute a renewal and tender by defendant to plaintiffs. In a 
second count allegations much the same as in second defense 
in the answer are set forth, praying that the renewal provided 
for in the lease be decreed to be specifically performed; or, 
in other words, that plaintiffs be required to execute a new 
lease. Plaintiffs, answering the cross-complaint, denied the 
allegations as to performance and alleged discontinuance of 
the work for periods specified; alleged, also, the wrongful 
cutting of timber and the burning of oil for fuel ; failure to 
pay royalties as required by the lease. The pleadings are 
verified. The court made findings substantially in accord* 
ance with the allegations in the amended answer and amended 
orofls-complaint, and entered its decree enforcing specific per- 
formance of the covenant for a renewal of the lease as prayed 
for in the cross-complaint. 

"Plaintiffs moved for a new trial upon a statement of the 
case, which being denied, they appeal from the order. There 
is no appeal from the judgment There was no demurrer 
to the cross-complaint or answer. 

"It is urged by appellants that the findings are insufficient 
to support the judgment, and that the cross-complaint does 
not state a cause of action, and that the conclusions of law 
are unsupported by the findings. 

"The insufficien<^ of the complaint cannot be considered 
on an appeal from an order denying a motion for a new trial, 
nor on such motion can the question whether the findings 
sustain the judgment be considered. {Martin v. Matfield, 
49 Cal. 42; Brisan v. Brisan, 90 Cal. 323; Bode v. Lee, 102 
Cal. 583; Bauer v. Fay, 128 Cal. 523, and numerous other 
eases.) Where the conclusions of law are claimed to be 
erroneous and not consistent with, or not supported by the 
findings, the moving party may proceed under sections 663 
and 663%, Code of Civil Procedure {Shaffer v. Lacy, 121 
Cal. 574) ; and where this course is not pursued there must be 
an appeal from the judgment, or the sufficiency of the find- 
ings to support the judgment cannot be considered. {Patch 



166 Swift v. OccroENTAi, Mining etc. Co. [141 CaL 



V. MiUer, 125 Cal, 240.) . . . This court is limited in its re- 
view of the action of the lower court, on appeal from the 
order denying a new trial, to the grounds upon which the 
new trial was asked. (Wheeler v. Bolton, 92 Cal. 159.) Ap- 
pellants cite Simmons v. Hamilton, 56 Cal. 493, and claim that 
it was there held that the conclusions of law found by the 
court and the sufficiency of the pleadings could be considered 
on motion for a new trial. This case has been referred to on 
the point but once, so far as I can find {In re Doyle, 73 Cal. 
564), and it was there said that 'a party cannoc demand a 
new trial upon the ground that the court erroneously applied 
the law to the facts, or drew wrong conclusions of law from 
the facts found. The remedy in such case is by appeal. . . . 
Nothing to the contrary was decided by a majority of this 
court in Simmons v. Hamilton, 56 Cal. 493. ' If there is any- 
thing in the Simmons case contrary to the rules above stated, 
it must be deemed to have been long since overruled. We 
mu^t, therefore, confine our inquiry to alleged errors of law 
properly specified in the statement and determine whether the 
evidence is insufficient to justify the findings in so far as it 
is so specified." 

In addition to the foregoing extract from the Department 
opinion, it may perhaps be useful to point out a distinction 
which has not heretofore been stated in direct terms, but »s 
clearly deducible from our former decisions upon the ques- 
tion of moving for a new trial on the ground that the verdict 
or other decision '*is against law." 

Decisions against law are of two kinds. As to one kind, a 
new trial is always an effective, and often the only, means of 
correcting the error. As to the other kind, a new trial would 
be a vain and useless proceeding. In the first class of cases 
the motion is properly made, and error in overruling it is re- 
viewable on appeal from the order. In the second class of 
cases, since a new trial would afford no relief, and since other 
and effective means of relief are expressly provided in the 
Code of Civil Procedure (sees. 663 and 663V4), the motion 
for a new trial is necessarily overruled by the trial court and 
the order affirmed here. An example of the first class is 
where the trial court has failed to make any finding upon 
some material issue. The omitted fact being essential to the 



Nov.1903.1 Swnrr v. Occidbntal Mining etc. Co. 167 

judgment, a new trial for the purpose of determining the is- 
sue is the appropriate remedy, and the refusal to grant it is 
reviewable on appeal from the order. (See Knight v. Roche, 
56 Cal. 17; Spotts v. Hanley, 85 Cal. 168; Haight v. Tryon, 
112 Cal. 6.) An example of the second class is where the 
findings are full and complete as to all the issues, and fully 
sustained by the evidence, but the conclusions of law are 
erroneous or misapplied in framing the judgment. In such 
a case it is plain that a new trial — a re-examination in the 
same court of the issues of fact, or seme of them, (Code Civ. 
Proc, sec. 656) — would accomplish nothing, whereas a motion 
in pursuance of section 663 to vacate or correct the judgment 
would secure the appropriate relief in the trial court, or, if 
relief was denied there, it could be secured by an appeal from 
the judgment. 

If we have succeeded in making this distinction clear, it 
amounts to this: That a motion for a new trial on the ground 
that the decision is against law, is or is not permissible accord- 
ing as a new trial is or is not the means of correcting the error 
in the decision, and it is not a means of such correction when 
the only fault in the findings is that they do not support the 
legal conclusions drawn from them, and still less is it a means 
of remedying a fault in the pleadings or an error in granting 
relief unwarranted by the pleadings. So far, therefore, as 
the motion for a new trial was based upon any supposed de- 
fects in the cross-complaint, or errors in the conclusions of 
law or in the judgment, it was properly denied. 

But the motion was also based upon numerous exceptions to 
rulings of the superior court at the trial, and upon tht 
further ground that the findings were in several particulars 
contrary to the evidence. There is no claim that the alleged 
errors in the rulings of the trial court are not properly speci- 
fied, but respondent does contend that the specifications of 
findings unsupported by the evidence were insufficient to 
warrant the trial court in considering that ground of the 
motion, and, consequently, that this court cannot now con- 
sider it. 

We think, however, that most of these specifications, if not 
all of them, are in every respect sufficient. They clearly 
designate the findings and parts of findings which it is 
claimed the evidence does not justify, and that is all that is 



168 SwiPT V. Occidental Mining etc. Co. [141 Cal. 

required. The first case cited by respondent in support of 
his objection is Kyle t. Craig, 125 Cal. 116. The passage 
oited is not very clear in its statement of the supposed defects 
in the specifications there considered, and may be understood 
as countenancing the notion that the statute requires a speci- 
fication of evidence in connection with the specification of the 
particular finding. But if so understood, it conyeys an erro- 
neous impression. No reference to the evidence is required 
in the specification except to say that it is insufiicent to 
justify the particular finding called in question. The reasons 
for this construction of the statute are very clearly pointed 
out in the next case cited by respondent, — De Molera v. Mar- 
tin, 120 Cal. 544, — as they had been pointed out frequently 
before. (See Eddelbuttel v. DurreU, 55 Cal. 279; Dawson v. 
SMoss, 93 Cal. 200.) 

The substance of all these decisions is, that the object of the 
rule requiring these specifications is first to shorten the state- 
ment of the evidence by excluding everything irrelevant to 
the specified fact; and, second, to notify the opposing party 
of the particular finding called in question, in order that he 
may see that the statement fairly and fully presents the evi- 
dence bearing upon that particular matter. This object ac- 
complished, the statute is satisfied, and the more recent de- 
cisions of the court have shown a disposition to construe 
specifications liberally in favor, rather than strictly against, 
the right of the moving party to be heard. This view is well 
and strongly stated by Justice Temple in American Type etc. 
Co. V. Packer, 130 Cal. 461, and has since been reaffirmed in 
several cases recently decided. (See Stiuirt v. Lord, 138 Cal. 
672; Dratkman v. Cohen, 139 Cal. 310; Holmes v. Hoppe, 
140 Cal. 212 ; see, also, Owen v. Pomona Co., 131 Cal. 539 ; 
and Standard etc. Co. v. Habishaiw, 132 Cal. 124.) 

In view of the rule as laid down and applied in these cases, 
and, indeed, in view of the stricter rule of De Molera v. 
Martin, 120 Cal. 544, the principal specifications in this state- 
ment must be held sufficient, and so holding we proceed to 
consider them. 

The lease set out in the cross-complaint was of eighty 
acres of land known to contain petroleum, and its purpose 
was to develop the productive capacity of the ground. The 
lessees were granted the exclusive right for a term of ten 



Nov. 1903.] Swipp V. OoomiSNTAL Mining btto. Co. 169 

years, from the sixth day of April, 1889, to make ezeayationa, 
dig wells, etc., upon the premises, and to extract and sell ooal, 
eoal-gas, petroleum, asphaltum, clay, and mineral substances 
of every character contained upon or within said lands, and 
to erect necessary buildings and machinery, to construct 
roads, and use and convey water. Of the proceeds of sales 
of such mineral products they were to retain nine tenths and 
pay the remaining one tenth to the lessors. 

These provisions of the lease were subject to the following 
covenants and conditions: — 

''1st. Said party of the second part shall, within three 
months from the date hereof, commence work to prospect for 
and to extract from said lands either or all of said substan- 
ces above mentioned, and shall continue to prosecute work 
for such purposes during said period of ten years in develop- 
ing and rendering such property productive, and any dis- 
continuance of work for a period of four months shall, at 
the option of said parties of the first part, upon written no- 
tice, work a forfeiture of any and all privileges herein and 
hereby granted, and in case the net proceeds derived from 
said property shall in any one year amount to less than six 
hundred dollars, then and in that case all the privileges 
herein and hereby granted shall be forfeited, unless th/j 
parties of the second part shall be actually employed in the 
prosecution of said work. 

''2d. Said grantee shall, on demand, pay monthly to said 
grantors, during said period of ten (10) years, one tenth 
(1-10) of iheir gross earnings derived from sale of the pro- 
ducts or substances aforesaid, found or mined on said above- 
described lands ; and said grantors at all times to have access 
and full and unrestricted permission to inspect, examine, 
and take copies of all books, accounts, and memoranda in 
the possession of said grantees, belonging or appertaining 
to said business." 

It was finally provided that a faithful compliance with 
these covenants should entitle the grantees, or their assigns, 
to a renewal for a like term. 

The issues tried by the superior court were those made by 
the answer to the cross-complaint denying its allegation of 
compliance with the conditions upon which the stipulation to 
renew was made to depend, and the findings were generally 



170 Swift v. Occidkntal Miking etc. Co. [141 Cal. 

that all the oovenants on the part of the lessees had been 
fully performed, and specifically that each of the conditions 
had been performed, except where, in some particulars, per- 
formance had been waived. 

There are the findings attacked by the specifications. The 
evidence in the transcript is voluminous, and shows that the 
defendant, within the time stipulated, entered upon the 
demised premises and commenced and carried on tiie work 
of exploration and development energetically, and at large 
outlay for four or five years, but that it did not succeed in 
materially increasing the amount of oil flowing from a small 
excavation or tunnel which has been opened before it 
took possession. During this time it drove a tunnel a dis- 
tance of some four hundred feet and sank seven wells within 
a space of five acres. 

The tunnel has continued to yield a small quantity of oil, 
and, by pumping, some oil was obtained from two or three of 
the wells, but they seem finally to have been, to a great 
extent, abandoned. This, in general terms, was the condition 
of affairs on the 31st of March, 1899, when plaintiffs notified 
the defendant that they would not renew the lease. The 
impression left upon the mind from a consideration of ail 
the evidence in the record, and especially of the admissions 
and qualifications elicited by cross-examination of defend- 
ant's witnesses, is, that the work of exploration and develop- 
ment during the last half of the ten-year term was not at 
any time vigorously pushed, but with respect to two periods, 
— ^viz., from July, 1894, to December, 1895, and from April, 
1898, to February, 1899, — it clearly appears by the uncontra- 
dicted evidence that no work of development whatever was 
done. The evidence offered by defendant is to this effect, 
and part of it — ^with reference to the first period — ^was de- 
rived from the defendant's books of account, which showed 
that between August 1, 1894, and November 21, 1895, the 
only persons receiving compensation from the defendant 
were Oeorge Streeter and its secretary. The salary of the 
secretary, of course, cannot count in the matter of develop- 
ment, and Streeter, whose wages were $1.25 per diem, was 
onployed exclusively in pumping oil and at odd times in 
working on roads and trails. He testifies to a complete 
cessation of development work from July or August, 1894, 



Nov. 1903.] Swift v. Ocoidbntal Mining etc. Co. ITl 

to November, 1895. There is nothing to contradict this evi- 
dence. We have carefully examined those portions of the 
record cited by respondent as supporting the finding of the 
court and cannot discover anything to sustain their conten- 
tion. The testimony of Mr. Frink merely identifies certain 
vouchers in the shape of receipts for wages. All of these 
payments were made prior to July, 1894, except one, and 
several of them in 1893. And the single one made subse- 
quent to July, 1894, was for labor performed prior to De- 
cember 1, 1893. The testimony of Mr. Johnson shows nothing 
different, and the same may be said of the testimony of 
Snow. The testimony of Judge Day is in relation to work 
of comparatively trifling amount done on roads and trails 
by Streeter and others, and does not show when it was 
performed. Altogether, the proof is clear that no work of 
development was done between July, 1894, and December, 
1895, unless the pumping of oil, and a little work on the roads 
by one man — ^when not engaged in pumping, — answers that 
description, which it clearly does not. The evidence on the 
part of defendant with reference to the period between April, 
1898, and February, 1899, is equally unsatisfactory. 

The testimony of Frink is again in relation to vouchers for 
wages paid for work done prior to May, 1898, except in the 
case of Snow, who had taken the place of Streeter as care- 
taker, and did no work of development. Snow's testimony 
shows that he was merely in charge of the works, keeping 
things in order and removing obstructions to the flow of oil 
from the tunnel, and that work was recommenced on the tun- 
nel in February, 1899. Mr. Eddy's testimony is to the effect 
that a written contract to extend the tunnel was signed b^ 
certain parties in August, 1895, but it is not shown that any 
work was ever done under the contract. On the contrary, 
there is evidence that the parties executing this or a similar 
contract, after visiting the tunnel, abandoned it, and the 
difficulty of procuring men willing to do the work is the ex- 
cuse of defendant for its failure to prosecute it more vigor- 
ously. 

It is unnecessary to discuss other exceptions to the findings, 
for if the two above considered are material — ^a point as to 
which we have no doubt — ^their want of support in the evi- 
denoe compels a reversal of the order denying a new trial. 



172 Swift v. Occidental Mining rro. Co. [141 CaL 

and as to other disputed facts th^ may be property left 
to the consideration of the trial court, unaffected by any ex* 
pression of opinion on our part. 

Some questions of law discussed in the brie& and likely 
to become the subject of controversy upon a retrial of the 
issues of fact require to be noticed in connection with the 
foregoing discussion. It was proven by plaintiffs, and in 
effect found by the court, that the defendant cut some 
brushwood and timber, growing on the land, and used it for 
fuel to generate steam in the work of development ; also, that 
the oil produced on the premises was used for the same pur- 
pose and not accounted for. These things were done by de- 
fendant under a claim that a clause in the lease conferred the 
right to use the firewood and a local custom justified the use 
of the oil and the omission to account for it. As to the latter, 
we do not think there was any competent evidence of a custom 
that could modify the terms of the lease; but the terms of 
the lease are far from clear on this point, and the court finds 
upon evidence which we deem satisfactory that the plaintifiEs 
knew and acquiesced in the practice of using the oil for fuel 
in carrying on the work of development, and that they never 
made any demand on account of the oil so used. This was 
a practical construction of the contract by the parties them- 
selves or a waiver by plaintiffs of a doubtful right, and by 
itself certainly ought not to defeat the right of the defendant 
to a renewal. The cutting of brushwood and timber for fuel, 
if it amounted to substantial waste, and was done without 
the knowledge and consent of the plaintiffs, would present 
a different question. The finding is, that there was no sub- 
stantial injury done to the freehold by such cuttii ^ as was 
done, and that the plaintiffs knew and consented to it. The 
evidence on this point, however, is in some conflict, and if on a 
new trial the facts should be found differently, a question 
would arise upon the construction of a clause in the contract 
which confers upon the lessees, among other privileges, the 
following: **such other rights and privileges as are vested 
in mines under the laws of the United States and of the 
state of California." We do not think this clause can be 
treated as meaningless merely because the word "mines" 
is used where perhaps the word ** miners" would have better 
expressed the intention of the parties. We have no doubt 



I& Nov. 1903.] SWIPT V. OCOIDBNTAL MlNmO BTO. Co. 178 

'i it was intended to confer upon the lessees the rights — ^what- 

js ever they are — that are conferred upon prospectors of min- 

ing-ground by the laws of this state and of the United 
k States. 

^ We are not sure that the respondent means to contend 

3 that the failure of appellants to insist upon forfeiture of 

i' the lease for waste or breach of covenant, precludes them 

91 from refusing to grant another term, though there are pas- 

^ sages in his brief which seem to assert that proposition. If 

^ the contention is made it cannot be sustained. The waiver of 

^ the forfeiture is one thing; the renewal of the lease is quite 

* another. The neglect of the landlord to strictly enforce his 

^ right of forfeiture for breach of condition does not entitle 

^ the tenant to a renewal when such renewal is dependent upon 

faithful performance of conditions. There is no finding, and 
no evidence to warrant a finding, that plaintiffs consented 
to any cessation of the work of exploration and development, 
and their mere failure to enforce a forfeiture for the cessa- 
tions which occurred in 1894-1895 and 1898-1899 was not 
a waiver of performance of the conditions upon which they 
had bound themselves to renew the lease. (Pomeroy on Con- 
tracts, sees. 355-359, and notes ; Oannett v. Albree, 103 Mass. 
372; DuffUld V. MicJuieU, 97 Fed. 825. And see further 
upon the propositions here considered, Woods on Landlord 
and Tenant, sec. 413; Waterman on Specific Performance, 
sec. 452; Pomeroy 's Equity Jurisprudence, sec. 1407.) 

We cannot undertake to discuss in detail the numerous ex- 
ceptions to the rulings of the court at the trial. It was not 
error to admit evidence as to the amount of money expended 
by defendant in pursuance of its agreement to explore and 
develop, but the amount expended in the beginning of opera- 
tions could not excuse a subsequent cessation of work. 

It was error to allow the stockholders and directors of the 
company to testify that they expected and counted upon a 
renewal of the lease. The only way they could entitle them- 
selves to a renewal was by performing the conditions of 
their lease. Without this their expectations were of no avail, 
and with it unnecessary. And if in any view this testimony 
had been admissible, the plaintiffs should have been allowed 
greater liberty of cross-examination. 



174 Simon Newman Co. v. Lassing. [141 CaL 

The oourt did not err in ezclading evidence as to the under- 
standing of the parties touching the meaning of the contract 
at the time it was executed. The evidence of a custom allow- 
ing the prospector to bum the oil produced on the claim was 
incompetent, but it was competent to show that the plaintiffs 
acquiesced in the daim of defendant to the exercise of that 
right under the terms of the lease. 

The order denying a new trial is reversed and the cause 
remanded. 

McFarlandy J., Shaw, J., Angellotti, J., and Lorigan, J., 
concurred. 

Rehearing denied. 



[Sac. No. 1130. Department Two. — ^November 30, 1903.] 

SIMON NEWMAN COMPANY, Respondent, v. JOHN P. 
LASSINQ, Appellant. 

(Xklawtul Detainzbt— Defensb— FaiLUD in OBTAmnfo Deed unm Leasx 
— ^Besgission not Bbquibed. — In an aetion of unlawful detainer 
for holding over after the expiration of a term of lease, the de- 
fendant may set ap in defense that the plaintiff proeured a deed 
from the defendant and the agreement of lease by fraud and undue 
influenee; and an answer setting up sueh fraud and undue influence, 
and asking for no affirmatiTe relief, need not set up a rescission; 
nor is it neeessary that the defendant must first go into an equitj 
oourt and have the deed set aside. 

Id. — ^Evn>SNGB — Sinols Tbansagtion. — The defendant may show as part 
of the transaction leading up to the lease, and as evidence bear- 
ing upon the question of fraud and undue influence in the exeea- 
tion of the lease, that the deed, as well as the lease, was so executed, 
and to show the relation of each to the other as one transaction. 

Id. — Order GRANrmo New TriaI/— Oroitnds — Opinion of Court — ^Bb- 
VDEW UPON Appeal. — An order granting a motion for a new trial, 
in general terms, win be sustained upon appeal, on any tenable 
ground; and the fact that an opinion of the court found in the 
record states the point on which the court rested the order does 
not preclude this court from reviewing the case and sustaining 
the order on other grounds. 



Not. 1903.] Simon Newman Co. v. Lassing. 175 

Ii>. — ^Plbadihos, Findings, and Judgment, not Bbvibwable. — ^Upon ap- 
peal from an order granting a new trial, the incnifficienej of tbe 
pleadings or of the findings to support the judgment cannot be 
considered. 

A'^PEAL from an order of the Superior Court of Merced 
County granting a new trial. E. N. Rector, Judge. 

The facts are stated in the opinion* 

Sullivan & Sullivan, for Appellant. 

Naphtaly, Preidenrich ft Ackerman, J. K Law, T. C. Law, 
and Henry C. McPike, for Respondent 

CHIPMAN, C. — This in an appeal from an order granting 
plaintiff's motion for a new trial. The action is unlawful 
detainer. The cause was tried by the court with a jury, and 
defendant had the verdict. The grounds of the motion were 
insufficiency of the evidence to justify the verdict and errors 
of law occurring at the trial. The order granting the motion 
is general. 

In an opinion found in the record the court stated the point 
on which it rested the order. It is well settled that the ground 
upon which a new trial is granted by the trial court does not 
prevent this court from reviewing the case and sustaining 
the order on other grounds {Kauffman v. Maier, 94 Cal. 262 ; 
ChurchiU v. Floumay, 127 Cal. 355} ; and the filing of an 
opinion by the court does not affect l^e rule. {NevmuM v. 
Overland Pacific By. Co., 132 Cal. 73.) 

The demurrer to the complaint for insufficiency of facts 
alleged, or that the judgment is not supported by the find- 
ings, or that the latter are inconsistent with the pleadings, 
cannot be considered on motion for new trial where there is 
no appeal from the judgment. (Moore v. Doiiglas, 132 Cal. 
399.) 

The complaint alleges an agreement of lease made on De- 
cember 7, 1900, for the term ending December 1, 1901, under 
which defendant went into possession of the premises in- 
volved ; alleges the expiration of the term, and that defendant 
k holding over without plaintiff's permission and contrary to 



176 Simon Newkan Co. t;. Lascong. [141 GaL 

the proyisions of the lease ; alleges demand in writing of de- 
fendant for possession; that three days have elapsed since 
making said demand, and defendant refuses to quit possea- 
sion. The amended answer denies specifically the material 
allegations of the complaint, and as further defense alleges 
the ownership of a large tract of land, of which the land in 
question is a part; that defendant is a farmer, and for many 
years — to wit, ever since 1878-Hlealt with Simon Newman, 
and later with plaintiff corporation, purchasing from them 
a great deal of merchandise, and through them disposing of 
most of his farm products ; that they kept all of his accounts 
up to January 1, 1901, and defendant kept no books; that 
Simon Newman was manager of the corporation, and a man 
of large business experience; facts intended to show certain 
alleged confidential and fiduciary relations between defendant 
and Newman during all said time are set forth, and it is 
alleged that on November 30, 1900, defendant owed plaintiff 
sixty thousand dollars, and no more; that defendant was 
then seventy-two years old, and much impaired in body and 
mind ; that on said last-named date he was, and had been for 
several days, under the influence of liquor to such an extent 
as to be incapable of attending to business; that within two 
or three days prior to said date, and on that day, Newman 
and one Solomon Wangenheim made certain false and fraud- 
ulent representations to, and uttered certain threats against, 
defendant, as set forth in the answer, by reason of which 
defendant signed a deed conveying to plaintiff all of said 
property; that on December 7, 1900, (seven days after the 
deed was executed,) one E. S. Wangenheim, on behalf of 
plaintiff, represented to defendant that he, defendant, had 
no longer any interest in the said land, and unless he would 
execute his note for $936 to plaintiff, he would be excluded 
from said premises, but if such note was given, he could re- 
main in possession of the land described in the complaint for 
one year from said date; that defendant believed said repre- 
sentations, and executed said note, but that if he had known 
of his rights in the premises, he would not have given the 
note, nor would he have remained in possession under said 
agreement. 



Not. 1903.] SncoN Newman Co. v. Lassing. 177 



^ The view taken by the learned trial judge, as shown by 

^ his opinion fonnd in the record, was, that there was no evi- 

I denoe whatever that fraud or undue influence was resorted 

i to by plaintiff in obtaining the lease, nor was it shown that 

defendant was acting under mistake of law or fact. As to 
the alleged fraud and undue influence used at the making 
of the deed, the trial court held that it was insufiScient, even 
if proven, without some evidence tending to show that the 
lease was made under some such influence or through what 
would be regarded as mistake of law or fact legally appear- 
ingy and hence that ''the evidence tending to show fraud 
in the execution of the deed cannot be considered.'' The 
evidence of alleged fraud attending the execution of the 
deed is in conflict, and there is evidence tending to show 
that defendant was mentally competent and fully understood 
the nature of the transaction, and entered into it free from 
any undue influence of plaintiff. The order may rest upon 
the insufSciency of the evidence to justify the verdict. We 
do not deem it necessary to notice the numerous alleged errors 
of law occurring at the trial ; they relate to the admission or 
exclusion of evidence and to certain instructions given or 
refused by the court, and may not arise again. 

It is objected by appellant that the description given the 
property in the complaint is so defective as to make the lease 
void. As there must be a new trial, the plaintiff may obviate 
this objection, if well 'grounded, by amendment of the com- 
plaint or by evidence at the triai. In the present stage of the 
case defendant is not injured, for no relief under the com- 
plaint has as yet been given plaintiff. The evidence tends to 
show that defendant understood what land was embraced in 
the lease, and no doubt a correct description of it can be given 
if it has not been. 

Respondent contends, as we understand the brief of coun- 
sel, that defendant is estopped to deny his landlord's title un- 
der the general rule that a lessee cannot, in an action involv- 
ing possession or right of possession, question the title of his 
landlord; that defendant must first go into the equity court 
and have the deed set aside, if made through fraud or undue 
GZLL GU.— IS 



178 Gbaiq v. Cbajfton Watkb Co. [141 CaL 

influence. While desiring to avoid the diflonflsion of ques- 
tions that may not hereafter arise, it is proper, perhaps, to 
say that, in our opinion, the defendant may show, as part 
of the transaction leading up to the lease, and as evidence 
bearing upon the question of fraud and undue influence in 
the execution of the lease, that the deed as well as the lease 
was so executed, and to show the relation of each to the other 
as one transaction* Defendant is not seeking rescission, nor 
is he asking to have the deed set aside as void; he is sunply 
defending against plaintiff's action on the ground of fraud 
and undue influence, and asks no affirmative relief. We 
think he may do this without first rescinding. {Field ▼. 
Austin, 131 Cal. 379, and cases cited. See also. Hart v. 
Church, 126 Cal. 471.*) The answer is intended to set forth 
what in Toby v. Oregon R. B. Co,, 98 Cal. 490, is termed 
'* Defensive relief, whereby the fraud is set up by way of 
defense to defeat an action brought to enforce an apparent 
obligation or liability." (Pomeroy's Equity Jurisprudence, 
sec. 872.) 

It is advised that the order should be affirmed. 

Smith, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion, the order 
is affirmed. McFarland, J., Lorigan, J., Henshaw, J. 

Hearing in Bank denied. 



[L. A. No. 1112. Department Two. — Norexnber 80, 1908.] 

WILLIAM CRAIG et al., Respondents, v. CRAFTON 
WATER COMPANY, AppeUant. 

Watek-Bights — Adjustmxnt or Bights dt Usi or Ditoh— Dombstic 
Use — Flow fob Pxbiod or Tihb. — ^In the adjustment of the rights 
of the parties to the use of water flowing in a ditch, where the 
court finds that the rights of the defendant are subject to the 
rights of plaintiffs to use the water for domestic purposes and for 
watering stock, it is not reasonable to decree that plaintiffs are 



1 77 Am. St. Bep. 195. 



Nov. 1903.] Cbaio v. CJbafton Water Co. 179 

entitied to the eontinuoiui flow of anj given quantity of water, 
but there should be an equitable apportionment of such use by al- 
lowing a eontinnouB flow for a definite period of time to the plain- 
tiffs entitled to snch ose. 

Id. — Bights Below Point of Divkbsion. — The plaintiffs, through whose 
lands the ditch runs below the point of diyersion of the defendant, 
are entitled to all the water remaining in the ditch below such point 
of diversion, at the time when plaintiffs' diversion begins. The 
rights of persons not parties below the plaintiffs' lands cannot be 
regarded as material as against the defendant. 

In. — GoMSTRuoTioN OF Dbcrib— F1NDING8 — Agbxbicxnt of Paetiks— 
Seleotion of PI1A.CI OF D1VXB8ION — AoQUiBSCiNOE. — ^A former de- 
cree fixing the rights of parties thereto, is to be construed in con- 
nection with an agreement found by the court to have been made 
between the owner of a ranch and parties below it, that he should 
use all the waters of a creek on the ranch during certain hours 
each day, as giving such owner the right to select the place of 
diversion at the highest point on his ranch; and when it appears 
that such other parties below acquiesced in such selection, and made 
an agreement as to their time of diversion accordingly, they can- 
not complain of such selection by the original owner of the ranch, 
or by the defendant after he acquired title to the higher part 
thereof, under deeds from the plaintiffs, regardless of the con- 
struction of snch deeds. 

Id. — ^Appeal— Beview of EvmsNaB — Sufpigibnot of Spboxfioationb-^ 
SiniPLuSAGS. — A specification of insufficiency of the evidence to 
sustain a finding, which refers to the finding with sufficient clear- 
ness, is not vitiated by reference to a wrong number, and to kn- 
guage of the complaint not found in the finding. Such number 
and incorrect language may be disregarded as surplusage. 

Id. — ^Finding upon Sevebal Points — Undisputed Matteh— Bbspondsnt 
NOT Misled. — ^The fact that the finding assailed contained several 
propositions, but the only disputed matter related to a single propo- 
sition, will not vitiate the specification where the respondent was not 
misled in the preparation of the statement which contains all the 
evidence. 

APPEAL from an order of the Superior CJourt of San 
Bernardino County denying a new trial Frank F. Oster, 
Judge. 

The facts are stated in the opinioiL 

Otis & Qreggy and E. B. Annable, for Appellant 

Bicknell, Oibson & Trask, and Curtis ft Curtis, for Be- 
spondents. 



180 Craio v. Csafton Watbb Ca [141 Cal. 

SMITH, C. — This is a suit to determine the several rights 
of the parties to certain of the waters flowing in the Mill 
Greek zanja, or water-ditch, in the county of San Bernardino. 
The judgment was for the plaintifSs. The appeal is from an 
order denying the defendant's motion for new triaL 

The zanja in question runs westerly from Mill Creek, past 
the point of diversion of the defendant's water, or, as it is 
callwi, **the Grafton intake,'* through the lands of the plain- 
tifb and others (being part of the tract known as the Carpen- 
ter ranch), to lands in the vicinity of old San Bernardino, 
known as the Cottonwood Bow. These lands and others form 
parts of the Bancho de San Bernardino, granted in the year 
1842 to Lugo and others; and in the year 1876 there was 
a suit in the district court of San Bernardino County, be- 
tween the owners, respectively, of the lands of the Carpenter 
ranch and those of the Cottonwood Row, in which, in June. 
1876, there was entered a judgment determining the respect- 
ive rights of the then owners of the waters of the zanja, which 
judgment was by this court affirmed. (Cave v. Crafts, 53 
Gal. 135.) The plaintifiBs in that suit consisted of Barton and 
others, owners of lands in the Cottonwood Row, with Cave, 
Craig, and Standford and associates, owners of Carpenter 
ranch lands; and the defendants, of Myron H. Crafts, who 
was also an owner of Carpenter ranch lands, and others 
whose interests are not involved here. The effect of the judg- 
ment was to determine that the owners of the Carpenter ranch 
lands were entitled to the use of the water in question for 
irrigation between the hours x>f three and nine o'clock p. u. 
of each day, and the owners of the Cottonwood lands, for the 
balance of the time. But it was also adjudged that these 
rights were subject to the rights of the owners of the Carpen- 
ter ranch lands and other upper proprietors to the use of the 
water for domestic purposes and for watering stock. By the 
decree it was also determined that the rights of the owners 
of the Carpenter lands, as among themselves, were as follows: 
that is to say, the plaintiff Cave to have the use of the water 
for one day of the week, and the other plaintiffs (counting 
Standford and associates as one), and the defendant Crafts, 
each for two days. 



Nov. 1903.] Craig v. Grafton Watbb Co. 181 

Of the plaintifib in the present suit, William Craig is the 
plaintiff Craig of the former suit, and the plaintiffs Char- 
lotte Craig and Payne claim under him. The plaintiffs Bow- 
ers and Bean have succeeded the former to two, and the latter 
to one, of the six hours' use of the water per week, adjudged 
in the former suit to plaintiff Cave. 

The defendant is a corporation, organized in or prior to the 
year 1886, and it is admitted that, under conveyances from 
owners of the Carpenter Ranch water-rights — ^made in con- 
sideration of stock of the company, entitling them to the use 
of specified quantities of water — ^it has succeeded to the right 
to divert the waters of the zanja, for irrigation, between the 
hours of three and nine o'clock p. m., except for the three 
hours belonging to the plaintiffs Bowers and Bean. But it 
is found by the court: 1. That this right is subject to the 
rights of the plaintiib to use the waters of the creek for 
domestic purposes and for watering stock; and 2. That the 
plaintiffs are entitled to the water in the zanja below the 
Crafton intake at the hour of three o'clock p. m., or, as it is 
called, ''the three-o'clock water," except on Mondays, and on 
two other days of each ten days ; the former being the day on 
which the plaintiffs Bowers and Bean are entitled to the 
water, and the latter, days on which the water has habitually 
flowed to lower proprietors. 

1. With regard to the former finding, it is clear that as to 
the plaintiffs Payne and William Craig it cannot be sus- 
tained. For their deeds conveyed to the defendant, without 
reservation or exception, the right to divert the whole of the 
water of the creek, so far as owned by them, between the 
hours of three and nine o'clock p. m. This is probably true, 
also, of the plaintiff Charlotte Craig; but as her deed to the 
defendant's grantors is not in the record, this cannot be 
positively asserted. As to the plaintiffs Bowers and Bean, 
it appears they have not parted with their right, and hence 
(unless they are barred by the adverse user of the defendant) 
they are still entitled to the use of the water for the purposes 
specified. 

But it does not follow — ^as is also found by the court — ^that 
they are entitled to continuous flow of two inches or any 
other quantity in the ditch {Wiggim v. MusGupiabe etc, Co, 



182 Craig v. Crapton Water Co. [141 Cal. 

113 Cal. 189^), and such a requirement, we think, would be 
unreasonable. The flow of water in a stream may, and when 
necessary should be, apportioned between the parties mter- 
ested **by periods of time rather than by a division of its 
quantity'' (Id. 190) ; and artificial means of conducting it 
may be allowed instead of the natural channel. (Id. 195-196.) 
Or, indeed, it would be in the power of the court to hold 
that the demands of the plaintiffs entitled to water for do- 
mestic use are sufficiently supplied by the constant flow of the 
water by their places for eighteen hours; to whieh is to be 
added, in case the rights of the plaintiflb to the other water 
in question be established, an additional flow of two or three 
hours, or perhaps more. 

It remains to note that the specification of the appellant 
on this point is objected to as insufficient But we do not 
regard the objection as tenable. The specification attempts 
to quote the finding objected to, and also to designate its 
number; but, through inadvertence, the number given and 
the language quoted is that of the paragraph of the com- 
plaint corresponding to the finding, which contains some 
words not found in the finding. The finding referred to is, 
however, sufficiently clear, and the matter given in the speci- 
fication not contained in the finding may be rejected as 
surplusage. It is also objected, in effect, that the finding con- 
tains several propositions, namely: That the plaintifib are 
the owners of the water-right described ; that they have been 
such owners for more than twenty years; that they have 
always had the water flowing in the zanja on their respective 
places; and that they are entirely dependent on the use of 
said water, etc. But all these propositions, other than the 
first, relate to matters entirely immaterial and to questions 
as to which there is no dispute. They could not, therefore, 
have misled the respondents in the preparation of the state- 
ment, which, in fact, contains all the evidence bearing en the 
issua (Bledsoe v. Decran, 132 Cal. 312.) 

2. As to 'Hhe three-o'clock water," the finding is fully 
justified by the evidence; nor would any other finding have 
been admissible. The defendant's right, under the deeds of 
the plaintiffs and others, is to divert the water of the lanja 



154 Am. BtBep. 337. 



Nov. 1903.] Craig v. Crapton Water Co. 183 

from three to nine p. m. ; and of this right it has been always 
in full possession and enjoyment. It can therefore have no 
right to the water in question, which is the water left in the 
ditch below its point of diversion at three o'clock p. m., the 
moment of the commencement of its right. This was, indeed, 
formally admitted by its counsel at the trial; and the court, 
we think, was right in regarding the admission as conclusive 
of the case. 

It is equally clear that the plaintiffs under the terms of 
the decree in Cave v. Crafts, 53 Cal. 185, are entitled to this 
water. But were it otherwise, the case would not be altered. 
For the plaintiff, in addition to their rights under the decree, 
are vested with the rights of riparian proprietors, — that is to 
say, with the righta to use all the waters flowijig in the zanja 
through their lands when not required for use by the Cotton- 
wood people. Nor in a suit against a third party can the 
rights of the latter be regarded as material. 

This conclusion disposes of the appellant's point that the 
column of water in question belongs to the Cottonwood 
people. But it will be proper to add that this contention 
rests upon an illicit assumption, and that the conclusion does 
not follow from the premise assumed. The assumption is, 
that the plaintiffs when they made their deeds were entitled, 
under the decre in Cave v. Crafts, to divert the water only 
at the places at which they were then diverting it; and that 
this was the right conveyed to the defendant. Frgm which 
it is argued that the diversion of the water by the defend- 
ant at its ''intake" (which is found to be two miles above 
the plaintiffs' lands) was not under the deed, but under the 
alleged general right conferred upon it by the law to change 
the place of diversion, provided the rights of others were not 
injuriously affected. But, assuming this to be the law, it is 
dear that this change (which was made without any agree- 
ment with the Cottonwood people) was prejudicial to them, 
and hence not permissible. Nor can we conceive of any prin- 
ciple upon which the Cottonwood people could have acquired, 
by the injury done them, any right to the water in question, 
which, under the express terms of the decree, belonged to the 
plaintiffisi. The Cottonwood people might, indeed, have re- 
sisted the change — a right which they have probably now lost 



184 Graio v. Cbafton Wateb Co. [141 CaL 

by defendant's adverse nser; bnt otherwise the rights of the 
parties under the decree were not in any way affected. 

Nor do we think the assumed construction of the findings 
and the decree in Cave v. Crafts correct In that case it was 
in effect determined that the Carpenter ranch people were 
''the owners of all the waters of said Mill Creek, and to have 
the same flowing in said zanja to and upon their respective 
lands," during the hours named for each respectively^ "being 
in the aggregate the use of said water between the hours of 
three o'clock p. m. and nine o'clock p. m. of each day.'* But 
this conclusion was based upon and is to be interpreted in 
connection with the agreement found between the Cottonwood 
people and Carpenter, when he was owner of the whole of the 
Carpenter ranch, "Whereby it was agreed that the said Car- 
penter should use all the waters of the zanja from three p. h. 
to nine p. m. of each and every day." This cannot be other- 
wise construed than as giving him the right to divert the 
water at any point from the source down, or at least at any 
point on his land, which would include the defendant's "in- 
take" — ^the point at which four sevenths of it had been di- 
verted while Crafts was yet owner, and where it has been 
diverted by the defendant ever since it acquired title. We 
must conclude, therefore, that the effect of the decision was 
to accord to the plainti£h and their co-proprietors the right 
to divert the water at any point on the Carpenter ranch ; and 
whether the plaintiffs' deeds to the defendant be constmed 
as referring to the "Crafton intake" or as leaving che point 
of diversion to the choice of the defendant, they were entirely 
within their rights; and the Cottonwood people had no cause 
to complain. This construction of the decision of the court, 
and of the agreement on which it rests, is confirmed by the 
acquiescence of the Cottonwood people in the defendant's act; 
and by the reference in the findings to the fact that the 
points of diversion used by the Carpenter ranch people were 
at distances ranging from one and one half to seven miles 
above the point used by the Cottonwood people; and by the 
provision in the findings based on an agreement between the 
Cottonwood plaintiffs fixing the hour of four o'clock a. m. 
as the beginning point of the use of the water by them. This 
allows seven hours from the shutting off of the water by those 
of the Carpenter ranch at nine p. m^— « period altogether 



Nov. 1903.] CJraig v. Crapton Water Co. 185 

nnnecessary otherwise than upon the theory that it was the 
understanding that the whole of the water might be diverted 
at the highest i)ointy which is now the "Crafton intake. '* 

This view of the case renders it unnecessary to consider 
other points discussed in the briefs; and it remains only to 
consider the proper judgment to be entered on the views ex- 
pressed. This must be, that the order appealed from be re- 
versed, and a new trial ordered, unless the plaintiffs be 
willing to forego their claims to the use of water for house- 
hold purposes and watering stock, except so far as secured 
to them by the eighteen hours' flow of the water to the 
Cottonwood people, and by the decision in their favor 
as to the '* three-o'clock water"; but if, as will probably be 
the case, they should be willing to do so, the order should be 
affirmed. 

For the reasons stated we advise that the order appealed 
Irom be reversed, and the cause remanded for a new trial, 
unless the plaintiffs within thirty days, or such further rea- 
sonable time as may be allowed by the court below, shall file 
tl»eir written consent, after service of a copy on the defend- 
ants, that the judgment be modified by striking therefrom 
thr following words, occurring in the first paragraph of the 
adjudication, viz.: **and (2) from diverting, interfering with, 
or in any manner preventing a continuous stream of two 
inches of water of said creek, measured under a four-inch 
prei^sure, from flowing in said zanja at all times to and upon 
the said farms of plaintiffs for their household use and for 
watering their stock"; and it is further ordered that, upon 
the filing of such written consent within the period prescribed 
by this court, or by the order of the court below, and the 
modification of the judgment in accordance therewith, the 
order appealed from shall stand affirmed. 

Gray, C, and Haynes, C, concurred. 

For the reasons given in the foregoing opinion the order 
appealed from is reversed, and the cause remanded for a new 
trial, unless the plaintiff, within thirty days, or such further 
reasonable time as may be allowed by the court below, shall 
file their written consent, after service of a copy on the 
defendant, that the judgment be modified by striking there- 



186 Bell v. Staackk. [141 Cal. 



frop^ the following words, occurring in the first paragraph 
of the adjudication, viz.: "and (2) from diverting, inter- 
fering with, or in any manner preventing a continuous stream 
of two inches of water of said creek, measured under a four- 
inch pressure, from flowing in said zanja at all times to and 
upon said farms of plaintiffs for their household use and for 
watering their stock"; and it is further ordered, that, upon 
the filing of such written consent within the period prescribed 
by this court, or by the order of the court below, and the 
modification of the judgment in accordance therewith, the 
order appealed from shall stand afiirmed. 

McFarland, J., Lorigan, J., Henshaw, J. 



[L. A. No. 1155. In Bant— November SO, 1903.] 

JOHN S. BELL, Respondent, v. GEORGE STAACKB et al.. 

Appellants. 

New Trjal — Notice of Intention not Pbbmatobe — Supply op Pnro- 
nros Omxttbd. — ^A notice of intention of the defendants to move 
for a new trial is not rendered premature bj the supply of omitted 
lindingp b.T the judge upon his own motion, which were in no waj 
eonnoeted with the findings upon which the decree in favor of the 
plaintiff was founded, and are not questioned bj either party. 

Id. — Specipications op Insuppioienot op Evidenob — Findings op Pbo- 
bativb Pacts. — Where probative facts are found by the court, 
specifications of insufficiency of the evidence to sustain any one of 
such findings, or any particular contained therein, are suiBdent. 

Id.— Finding op Ultimate Fact.— Where the finding is of an ultimate 
fact, consisting of a conclusion from a number of probative facta, 
a specification as to the insufficiency of the evidence to sustain such 
finding is insufficient. [Per Lorigan, J., and McFarland, J., Shaw, 
J., Angellotti, J., and Henshaw, J., contra,] 

Id. — Trust — Enporcbment — Advances by Decedent — Securitt — Fini>- 
iNGs against Evidenoe. — ^In an action to enforce a trust, one of the 
purposes of which was that the trustee should hold the title for the 
plaintiff, where it appeared from the evidence, without substantial 
conflict, that the deceased uncle of the plaintiff had advanee«I 
large sums of money for plaintiff's benefit, for which plaintiff was 
indebted to him, and that it was the imderstanding of the parties 
that the title was held by the trustee also as security to the unele 



' Nov. 1903.] Bbll v. Staaceb. 187 

! for the amount of such advanees, findings that the trustee held 

I the title in trust only to eonvey to the plaintiff, and not as securit/ 

i for plaintiff's indebtedness to the estate of the deceased unele. 

were against the evidenee. 

Id. — ^Practical CoNSTBuonoN of Oontbaot — Acts and Conduct of 

Pabtiss. — Where the acts and conduct of the parties up to the 

time of the uncle's death, and a sworn statement of the plaintiff In 

his original complaint, all tended to show that the trust deed to 

the land was in lieu of antecedent notes and mortgage held by the 

uncle as security, and that the deed was intended by the parties as 

security for the indebtedness then due and to become due from the 

plaintiff to the uncle for further advances, such acts and conduct 

of the parties show a contemporaneous and practical construction 

of the contract which must prevail over the subsequent testimony 

of plaintiff to the contrary. 

Id. — ^Writtxn Aorebmxnt as to Notes and Mortgages — Changs or Se- 
curity. — Where a written agreement was made by which notes and 
a mortgage given upon the sale of land by the plaintiff, were 
pledged by him to the uncle as security for indebtedness, and the 
security was changed into land by consent of the parties, in lieu of 
the notes and mortgages, the land became subject to such written 
agreement; and the rights of the unde in the trust property are 
evidenced thereby. 

Id. — Estoppel or PLAiNTirr. — ^Where the plaintiff knew that the title 
was held in the name of his uncle's confidential clerk, and chas 
the uncle claimed the title as security, and upon faith of such se- 
curity received the advances made by the uncle, and though in- 
formed repeatedly that the uncle was making advances on the 
property, and never by word or act repudiated the uncle's claim, 
but insisted on the advances being made, he will be held to the 
agreement as thus understood and acquiesced in by him, and be- 
lieved to exist when he presented his claim against hia uncle's es- 
tate, and when he commenced the action. 

Id. — Evidence Properly Excluded — ^Declarations Out or PLAiNnrr's 
Hearing — Letter or Trustee. — ^Declarations made by the uncle 
and his attorney subsequent to the execution of the deed, out of 
the hearing of the plaintiff, or of any agent representing him, and 
a private letter of the trustee written after the uncle's death, 
which plaintiff had never seen or known of, were properly excluded 
from evidence. 

APPEAL from an order of the Superior Court of Santa 
Barbara County denying a new trial. W. S. Day, Judge. 

The facts are stated in the opinion of the court 



188 Bell v. Staaokb. [141 CaL 

T. Z. Blakeman, and D. M. Delinas, for Theresa Bell, Ad- 
ministratrix, Appellant. 

The findings are against the evidence, and the specifications 
are sufficient. (Strang v. Ryan, 46 Cal. 33; American Type 
Founders' Assn. v. Packer, 130 Cal. 460; Owen v. Pomona 
Land etc, Co., 131 Cal. 530; Standard QuicksAver Co. v. 
Habishaw, 132 Cal. 124.) A trust resulted in favor of 
Thomas Bell. (Civ. Code, sec. 853; MiUard v. Hathaway, 
27 Cal. 119; Curry v. Allen, 34 CaL 254; Davis v. Baugk, 
59 CaL 568; Somers v. Overhulser, 67 CaL 237; Murphy 
V. Clayton, 113 Cal. 153; Pott v. Boggs, 122 CaL 114.) 

Canfield & Starbuck, for Oeorge Staacke, Appellant 

The evidence establishes that the land was held by Thomas 
Bell as security for money advanced to plaintiff by Thomas 
Bell, and the land was held subject to the writteit agreement 
of August 27, 1887, as a substituted security, resulting to 
Thomas Bell, who had paid the consideration in money. 
(Koach v. Caraffa, 85 Cal. 436, 446; Barker v. Hurley, 132 
Cal. 21, 28.) 

Richards & Carrier, and James L. Crittenden, for Be- 
spondent. 

The findings were supported by evidence in their favor, 
and this court will not disturb findings where the evidence 
conflicts. (Sherman v. Sandell, 106 Cal. 375; Brison v. 
Brison, 90 Cal. 334; Moore v. Douglas, 132 Cal. 399, 401; 
Gilbert v. Penfield, 124 Cal. 237 ; Broder v. Conklin, 121 CaL 
222; Chapman v. Neary, 115 Cal. 79; Johnston v. Brown, 
115 Cal. 694; Ellert v. Coggswell 113 Cal. 129; Loui Soy 
Wing V. Chung Tick, 113 Cal. 310; Guild Gold Min. Co. v. 
Mason, 115 Cal. 95 ; Senior v. Anderson, 115 Cal. 496 ; Bush- 
nell V. Simpson, 119 Cal. 658; Brown v. San Francisco Sav. 
Union, 122 Cal. 648 ; Chico Bridge Co. v. Sacramento T. Co., 
123 Cal. 178; Shafer v. WUlis, 124 Cal. 36.) 

LORIGAN, J. — Plaintiff brought this action to have a trust 
declared in his favor against the defendant Staacke in ten 
thousand acres of land in Santa Barbara County, the title to 
which stood of record in the name of the latter, and to com- 



. Nov. 1903.] Bbll v. Staaokb. 189 

. pel a oonveyance thereof to him by Staacke. The defendants, 

Staacke individually, and Theresa Bell, as executrix of the 

estate of Thomaa Bell, deceased, by answer and cross-com- 

I plaint, set up that said lands were held by said Staacke, sub- 

I jeet to trust in favor of the estate of said Thomas Bell, for 

I certain advances made by said Thomas Bell in his lifetime, 

at the instance and for the benefit of plaintiff, and praye<l 

that this latter trust be declared superior to that asserted by 

plaintiff. 

The trial court decreed that the land was held by Staacke 
in trust solely for plaintiff, and was not subject to any trust 
in favor of the estate of Thomas Bell, and directed a convey- 
ance by defendant Staacke to plaintiff. The court, however, 
under the cross-complaint, awarded the administratrix of said 
estate of Thomas Bell a judgment against the plaintiff per- 
sonally for some fifty-two thousand dollars, as a balance due 
by plaintiff for money advanced and loaned him by Thomas 
Bell, prior to the death of the latter on October 16, 1892. 

Defendants appealed from that portion of the decree de- 
termining that said land was not subject to any trust in favor 
of the estate of Thomas Bell, and also from an order denying 
their motion for a new trial. 

The appeal from the judgment was dismissed by this court 
(BeU V. Staacke, 137 Cal. 307), and the order affirmed, the 
Department decision holding, with regard to the latter, that 
as to the specifications of alleged insufficiency of evidence to 
justify the findings complained of therein, they were not 
properly made and could not be considered. A rehearing was 
granted on this point, and the appeal from the order is again 
before us generally for consideration. 

It is insisted, preliminarily, by counsel for respondent that 
the motion for a new trial was properly denied by the lower 
court, and that the appeal from such order should be affirmed 
by this court because, he claims, the notice of intention to 
move for a new trial was prematurely given. There is noth- 
ing in this point. The findings and conclusions of law were 
filed March 6, 1901, in due time, and on March 19, 1901, 
defendants gave their notice of intention to move for a new 
trial. Some two months afterwards the judge of the lower 
court, on his own motion, and reciting that such findings had 



190 BsUj v. Staaoki. [141 CaL 

been inadvertently omitted, made and filed two additional 
findings upon two issues raised by the plaintiff's answer to de- 
fendants' cross-eomplaint. They were findings in favor of 
the defendant Theresa Bell, as administratrix, that the in- 
debtedness of plaintiff to Thomas Bell contained no illegal 
charges, and that no indebtedness in favor of plaintiff against 
Thomas Bell, or his estate, ever existed. These were in no 
way connected with the findings upon which the decree in 
favor of plaintiff was founded, and neither party attacks 
them, uor has either party appealed from, or questioned, tlua 
part of the decree. 

The motion for a new trial was based, among other grounds, 
upon the insufficiency of the evidence to justify some nine- 
teen, out of twenty-three, findings made by the lower court, 
and whether they were so justified is the main point to be 
considered on this appeal. Counsel for respondent contend, 
again preliminarily, that as far as these challenged findings 
are concerned, this court cannot review them, because he in- 
sists the specifications of insufficiency of the evidence to 
justify each of them does not point out the particulars in 
which the evidence so fails to support them, or any of them, 
and hence are fatally defective in that respect, and relies 
upon De Molera v. Martin, 120 Cal. 547; Rauer v. Fay^ 128 
Cal. 523 ; Taylor v. Bell, 128 Cal. 308, and kindred cases, in 
support of this point. 

These cases, however, have no application to the findings 
and specifications under consideration. The findings which 
were attacked in those cases, and specifications pointing to 
which were declared insufficient, were findings of ultimate 
facts, and it was held that a general specification that the 
ovidenc:' did not justify suoh a finding was insufficient. The 
findings which are challenged in the case at bar are findings 
of probative facts, and not ultimate facts, and it is this differ- 
ence which makes the cited cases inapplicable. Here the lower 
court made full findings on all the probative facts, and almost 
every one of them is directly attacked by appellants in par- 
ticular specifications; in many instances they do not attack 
the entire findings, but cut out some specific probative fact 
contained therein, aiid essentially iicLcssary to be sustaine«i 
by the evidence, and specify that it is not so sustained. 
This was all that was necessary, and is the correct practice. 



1 Nov. 1903.] Bell v. Staackb. 191 

I The role in this regard is, that where the fact found by the 

^ eourt is the conclusion from a number of probative facts — 

f an ultimate fact — a specif cation which only says that the 

finding of this ultimate fact is not sustained by the evidence 

I is insufficient; but where the findings consist of particular 

^ probative facta — a series of facts from which the ultimate 

fact in issue is to be found — ^the specification is sufficient if it 

is leveled directly against any of such particular probative 

facts thus found, or the particular finding contained in the 

same. 

This is the rule, as we undertsand it, laid down in De 
MoUra v. Martin, 120 Cal. 647, cited by counsel for respond- 
ent, and which case seems to be the authority most generally 
relied on in attacks upon the sufficiency of specifications to 
findings. That was an action in ejectment, and the court 
found on one single proposition — ^the ultimate fact — owner- 
ship of the land by plaintiff. On appeal this court held that 
a specification that the evidence was insufficient to justify 
such finding of ownership was bad, because it was simply a 
repetition of the ground designated in the notice of intention 
to move for a new trial, and not a specification of the particu- 
lars in which the evidence was insufficient, and in discussing 
the subject the court said: ''If a finding is of an ultimate 
f'Hct. which resul.s from the establishment of several proba- 
tive facts, these probative facts constitute the particulars 
from which the ultimate fact is drawn, and, if it is claimed 
that the evidence is insufficient to establish any of these pro- 
bative facts, the particulars of such insufficiency should be 
specified in the statement. In Kelly v. Mack, 49 Cal. 523, an 
action brought to enforce a vendor's lien it was held that the 
specification 'the evidence is insufficient to show that plain- 
tiff has a vendor's lien upon the land/ failed to comply with 
the statute, for the reason, that it was merely an averment 
in effect, that the cause of action set forth in the complaint 
was not sustained by the evidence. In the same case it was 
held that a specification that 'the evidence is insufficient to 
show that the plaintiff was the owner of the land at the time 
of sale/ was a sufficient specification of the particular in 
which the evidence failed to support the decision, since own- 
ership of the land was one of the probative facts essential to 
entitle the plaintiff to a vendor's lien. ' ' Further on, but with 



192 Bell v. Staacks. [141 CaL 

reference to the case then under consideration, the court con- 
tinued: ''The finding of the court that the plaintiff was th« 
ovmer and entitled to the possession of the land was upon a 
consideration of all the evidence offered in support of her 
claim of ownership. This involved a consideration of the 
several particulars by which her ownership was to be estab- 
lished. Ownership, when regarded as a fact rather than as a 
conclusion of law, as in the finding herein, is the ultimate 
fact resulting from several probative facts to which the evi- 
dence in the case is directed. If the evidence is insufficient 
to sustain any of these probative facts, the particular facta 
which are not sustained by the evidence should be specified." 

From this authority itself, we think the rule is deducible, 
as we have stated it, that where probative facts are found by 
the court, it is only necessary in questioning the sufficiency 
of the evidence to support them to call attention to the par- 
ticular fact as found and challenge its support under evi- 
dence. 

This is the view taken in the early case of Strang v. Ryan, 
46 Gal. 41. This was also an action in ejectment. There 
the lower court made findings of a number of probative fact**. 
On appeal from an order denying a new trial it was objected 
''that the statement on motion for a new trial contained no 
sufficient specification of the particulars wherein the evidence 
does not justify the findings and judgment." In overruling 
this objection the court said: "The first, second, third, fourth, 
sixth, seventh, eighth and thirteenth specifications are cer- 
tainly not obnoxious to this objection. Each of them specifies 
a particular fact found by the court which, it is alleged, was 
not supported by the evidence, and, in respect to all the re- 
maining specifications, each of them points to a separate spe- 
cific finding confined to one or two facts, and avers that it was 
not justified by the evidence. We think this was a sufficient 
specification under section 195 of the Practice Act." To the 
same effect are Knott v. Peden, 84 CaL 299, and Dawson v. 
Schloss, 93 Cal. 200. 

In the still later cases of American Type Founders' Co. 
V. Packer, 130 Cal. 460, Owen v. Pomona L. and W. Co., 

131 Cal. 530, and Standard Quicksilver Co, v. Habishaw, 

132 Cal. 124, the same rule is declared, if not broader, where 



Not. 1903.] Bell v. Staackb. 198 

the finding of a probative fact, or a special finding, is at- 
tacked. The record in these latter cases shows that, as here, 
the findings challenged were findings of probative facts, and 
the specification as to each was simply that, as here, ''the evi- 
dence was insufiicient to justify the finding," followed by a 
recital of the particular finding, or part of the findings chal- 
lenged. 

In the first case the court held such a specification suf- 
ficient. 

In the second case the court in Bank said (Oilmen v. Pomona 
L. and W. Co., 131 CaL 530) : ''With regard to the spedficar 
tions the respondent makes the objection that they are not 
sufficient in substance or proper in form, and to this point 
cites the case of De Molera v. Martin, 120 Cal. 544. But the 
decision in that case has no application to the specifications 
here, which are as exact and detailed as they could be made 
in pointing out the particular findings and parts of findings, 
which it is claimed the evidence does not justify." 

In the last case {Standard Quicksilver Co. v. Habishaw, 
132 Cal. 124), the following language is used: ''The specifi- 
cations as to the sufficiency of the evidence to sustain the 
findings were sufficient. The particidar findings objected to 
are pointed out, and attention is called by the plaintiff to its 
claim that neither of these findings is supported by the evi- 
dence." 

It is further said in that case: "The purpose of the statute 
in requiring such specification is, as has been frequently said, 
that the opposing party may propose amendments to the state- 
ment, and thus cause it to contain all the evidence in support 
of the decision which he raay deem pertinent, or relevant 
thereto . . . The object of requiring any specifications is to 
give notice to the opposing party of the grounds relied on 
for setting aside the decision ; but if, under the notice which 
is given, the respondent has accomplished all which could 
have been accomplished under any notice, he is not in a posi- 
tion to object to any defect in the notice." 

The specifications here, tested under any rule, gave the re- 
spondent all the notice necessary to advise him of the ground 
relied on; the facts found were pointed out, and he was noti- 
CXTiT. CaL— 13 



194 Bell v. Staackb. [141 CaL 

fied that the appellant claimed that these special facts and 
special findings were not sustained by the evidence. The only 
object of a specification is to directly call the attention of the 
opposing party to the point upon which it is claimed that the 
evidence is insufficient. It is an easy matter for a respondent, 
if a proposed statement does not contain all the evidence as 
to any of the challenged findings, to have any evidence which 
he deems omitted and pertinent incorporated in the state- 
ment. 

The rule laid down in De Molera v. Martin, 120 Gal. 544, 
if it was once capable of the stringent construction placed 
on it by successive respondents in appeals to this court, is now 
being relaxed in harmony with the more liberal view which 
will afford a hearing upon appeal where reasonable and ordi- 
narily careful precautions have been taken to present speci- 
fications, rather than to defeat the right to be heard upon 
purely technical grounds. In this line are Stiiart v. Lard, 
138 Gal. 672; Dratkman v. Cohen, 139 GaL 310; and Holmes 
V. Hoppe, 140 Gal. 212. 

If there is any intimation in decisions of this court, prior 
to these cases, in seeming conflict with this rule, it must give 
way to the clear expression of the rule upon this point, 
aniiounced in these latter cases, and under these latter deci- 
sions. At least as far as the specifications in the case at bar 
jirp fiddressed to particular probative facts appearing in the 
findings, and to special findings thereunder, they are legally 
sufficient and correct, and the points made under them are 
properly before this court for consideration. 

We proceed now to examine the sufficiency of these findings 
in the light of the evidence. Space will not permit of our 
setting them all forth in extenso, nor is it necessary to refer 
to all of them, even in a general way; an epitomization of a 
few of the main essential ones will be all that is necessary, 
because the insufficiency of the evidence to justify them is 
of the pith of the inquiry. 

Neither have we made any preliminary statement of the 
facts, because in the reference which we shall make to the 
evidence, in examining the findings, an intelligent, though 
general history of the case will be found. 

Among other findings challenged are those which find that 



Nov. 1903.] Bell v. Staackb. 195 

i^hen Grover and Rosener made the conveyance of March 7, 
1889, to Staacke (under which It is claimed that the trust was 
oreated) the grantors and plaintiff and Thomas Bell agreed 
that such deed should convey back to plaintiff the ten thou- 
sand acres of land in controversy, and that it was agreed 
between plaintiff and Thomas Bell that such conveyance 
should reconvey it to plaintiff according to his original title, 
lach reconveyance to be made through the defendant Staacke. 

And also the finding that it was not agreed by plaintiff, 
Thomas Bell, and Staacke, or either of them, at the time of 
the execution of such deed of March 7, 1889, that said Staacke 
should hold said ten thousand acres of land as security for 
the payment by plaintiff to said Thomas Bell of all sums of 
money theretofore, or thereafter, to be advanced to plaintiff 
by said Thomas BelL 

After a careful consideration of the evidence in the case 
we are satisfied that these findings, which are the main con- 
trolling ones in the case in favor of plaintiff, are not sustained 
by the evidence. 

There is no question but that the premises were conveyed 
to Staacke, as trustee, by deed of March 7, 1889, and that 
the trustee claims no interest therein. There is no question 
as to the further fact, and the court so finds, that the plain- 
tiff is indebted to the estate of Thomas Bell in the amount 
of over fifty-two thousand dollars. It is admitted that one 
of the purposes of the trust was to hold the title for plaintiff 
— of this there is no dispute on either side — but the ques- 
tion is, and was, as to whether or not the trustee also holds 
the title as security for the amount due by plaintiff to the 
estate of Thomas BelL This is the controlling question in 
the ease. The court below, in its opinion, said: ''But all 
direct testimony on the material points, except that of 
plaintiff, is noticeably absent, and the letters, conversations, 
and acts of all the parties are as consistent with one theory 
as the other, . . . The testimony of John S. Bell, the 
plaintiff, while if contradicted or inconsistent with the cir- 
cumstances, would be of much less value than that of a dis- 
interested witness, is still entitled to due consideration, and, 
where totally uncontradicted, reasonable and consistent 



196 Bill t^. Staackb. [141 CaL 

with all other f aets, should be sofBeient upon which to base 
a finding." 

The court, therefore, appears to have placed considerable, 
if not main stress upon the fact, that plaintiff was not con- 
tradicted as to certain statements concerning the purposes 
and objects of the trust. While the evidence is too volumi- 
nous to be discussed in detail, it is necessary to state a few 
salient features of it, in order to show the reasons which 
have impelled us to arrive at a conclusion different from that 
of the trial court. The plaintiff is a nephew of Thomas 
Bell, deceased, who, during his lifetime, looked after plain- 
tiff and his family — ^the plaintiff residing in Santa Barbara, 
Thomas Bell in San Francisco — and showed much affection 
and solicitude for them, and expended large sums of money 
each year for their maintenance. Plaintiff was improvident, 
showed no business ability, and was always dependent upon 
his deceased uncle for his support As early as 1874 de- 
ceased gave and conveyed to plaintiff a tract of land con- 
taining fourteen thousand acres, being the four-thousand* 
acre tract and the ten-thousand-acre tract described in the 
amended complaint, situate in one body in the northern 
portion of Santa Barbara County. Plaintiff failed to sup- 
port himself and family from the income of the land, but 
deceased, from time to time, made loans and advances to 
him until, in the year 1885, the indebtedness of plaintiff to 
deceased amounted to fifty thousand dollars. They then 
had a settlement, and plaintiff, in payment of said indebted- 
ness conveyed to deceased four thousand acres from the 
tract, which was thereafter known as the ** four-thousand- 
acre tract," retaining the balance, which was thereafter 
known as the "ten-thousand-acre tract." On the twenty- 
third day of August, 1887, the plaintiff and deceased made 
a sale of both tracts of land to one Orover, for three hun- 
dred and fifty thousand dollars, one fifth of which was paid 
in cash. The four-thousand-acre tract of deceased went into 
the sale at eighty thousand dollars, and the ten-thousand- 
acre tract of plaintiff at two hundred and seventy thousand 
dollars. The deferred payments for Thomas Bell's tracts 
were evidenced by four promissory notes of Grover, each 
for sixteen thousand dollars, payable to Thomas Bell, and 
secured by mortgage on the four thousand acres. The de- 



Nov. 1903.] Bkul v. Staaoke. 197 

f erred pajrmentfl for plaintiff's tract were evidenced by four 
promissory notes for iifty-four thousand dollars each by 
Qrover, payable to Thomas Bell, and secured by mortgage 
on the ten-thousand-acre tract. At the time of this sale 
plaintiff had become again largely indebted to Thomas Bell, 
and by a verbal agreement the cash payments, the notes for 
the deferred payments on the ten-thousand-acre tract, and 
the mortgage to secure the same, were made direct to Thomas 
Bell, plaintiff's portion of the cash being credited on his in- 
debtedness, leaving the balance still due and owing by plain- 
tiff to Thomas Bell of $25,529. Four days after this sale 
plaintiff and Thomas Bell entered into a written agreement 
with each other, which, after reciting the facts as to the 
sale, the cash payment and its application, the giving of the 
notes and mortgage, and the balance of $25,529, still due 
Thomas Bell, provided 'Hhat Thomas Bell should hold said 
notes and mortgage for $216,000 until he should be repaid 
all present and future loans and advances which he might 
see fit to make to said John S. Bell, with interest from date 
of making the same, after which he should on demand assign 
the same to said John S. Bell.'* There is no doubt as to 
what the parties intended up to the time of this written 
agreement, and as to what was intended by it. The acts, 
conduct, and writings, up to this time, clearly show that 
Thomas Bell was to hold the notes and mortgage of Grover, 
given for the purchase price of plaintiff's land, as security 
for all sums due from, and to be advanced to him. They 
are not consistent with any other or dlifferent theory, nor 
did the parties differ up to this time as to the understanding 
and agreement. It was expressed that Thomas Bell should 
hold the evidence of indebtedness for the balance due plain- 
tiff, on account of the sale of his land, in trust to secure 
all indebtedness due and to become due by plaintiff. Upon 
the faith and strength of this arrangement, the deceased 
continued to make advances and to support plaintiff and his 
family, although constantly advising plaintiff to be more 
careful in his expenditures. 

After the purchase by Grover, he conveyed an interest in 
the premises, subject, of course, to the mortgages, to one 
Bosener. Grover and Rosener were unable to make pay- 
ments as provided in the notes and mortgages, and Thomas 



198 Bell t;. Staaoex. [141 CaL 

Bell commenced suits to foreclose. While the foreclosure 
suits were pending, the plaintiff and Thomas Bell orally 
agreed with Grover and Boaener that, in consideration of a 
proper deed of conveyance of the premises, they would release 
Bosener from the obligations of said notes and mortgages. 
In pursuance of this agreement a deed was accordingly 
made to Staacke, the confidential clerk of Thomas Bell, on 
the seventh day of March, 1889, which is the conveyance 
now in question. In consideration of this deed of grant 
to Staacke, Thomas BeU delivered to said Grover all said 
notes and mortgages, released the mortgages of record, and 
dismissed the suits of foreclosure. Orover and Bosener in 
making the deed to Staacke acted with the consent, and at 
the request, of both plaintiff and Thomas BelL In fact, the 
consent of plaintiff would not appear to have been neces- 
sary, as Thomas Bell held the legal title and the possession 
of the property which (the notes and mortgage) constituted 
the consideration for the deed. No suggestion was made by 
plaintiff that the deed was to free his land from the lien of 
Thomas Bell for indebtedness and for further advances. 
Let us see, then, from the acts and conduct of the parties, 
their interpretation and understanding of the trust. Orover 
and Bosener, after making the deed, immediately delivered 
possession of the property to Staacke. Plaintiff made no 
objection to the surrender of possession to Staacke, and one 
Hathaway was employed as superintendent of both tracts 
in common. As such superintendent he managed the prop- 
erty and remained in possession until October 14, 1892, and 
accounted regularly to Thomas Bell during all this time for 
the rents and profits of both tracts, the accounts of the two 
tracts being kept separately. Thomas Bell continued to 
make advances to plaintiff as he had done before, and cred- 
ited the net proceeds of the rents from the ten-thousand- 
acre tract to plaintiff. In the correspondence between the 
parties after the deed to Staacke, Thomas Bell often re- 
ferred to the ten-thousand-acre tract as belonging to plain- 
tiff, and as being held as security for the indebtedness to 
him. Although plaintiff wrote to Thomas Bell frequently, it 
does not appear that he ever objected to or denied the claims 
or statements of Thomas Bell as to the land being held as 
security. Thomas Bell rendered yearly to plaintiff a state- 



Nov. 1903.] Bell v. Staaobob. 199 

ment of his account, giving credit for the rents and profits 
of plaintiff's land, and charging him with expenses, taxes, 
and moneys loaned, which statements were always acknowl- 
edged by plaintiff in writing to be correct. The balance was 
always largely in favor of Thomas Bell, and continually in- 
creased. As a sample of the letters of Thomas Bell to plain- 
tiff, showing the understanding that the land was held as 
security^ a few extracts may be given. In a letter dated 
March 27, 1889, written after the date of the deed from 
Orover and Bosener to Staacke, and while some negotiations 
were pending as to granting Bosener an option to purchase 
the land, Thomas Bell said: **You must try to curtail these 
heavy expenses; you will soon owe me more than the 10,000 
acres are worth in my opinion. If we had the matter ar- 
ranged with Bosener, the 10,000 acres could be deeded to 
you, and you could borrow fifty or sixty thousand on it to 
pay me," clearly indicative of the fact that a conveyance 
to John Bell would only be permitted on condition that he 
should, by mortgaging it, repay the indebtedness owing to 
Thomas Bell. In a letter dated July 17, 1889, he wrote: 
**I inclose your account up to the 30th of June, showing that 
you owe me $74,633.33. This is perfectly frightful; if you 
go on in this way the value of the land will be eaten up." 
In a letter dated September 7, 1889, he wrote: **The draft 
for $500 turned up to-day. I told you that you must not 
draw more than $300 for family allowance. This must 
suffice. Your account has run up pretty nearly to the value 
of the ranch. ... I am determined to stop this expenditure, 
for you would soon run up your account to the full value of 
the land — so in future I will only advance $300 per month, 
and this must be paid to your wife — she must sign the draft, 
otherwise I will not pay it." On November 2, 1889, plaintiff 
wrote to Thomas Bell, asking for $200 in addition to the 
$300 for November for his wife. In a letter in answer to 
this, dated November 8, 1889, Thomas Bell wrote to plaintiff, 
and in the letter, after again admonishing plaintiff, said: 
**This must be stopped, and you had better tell your wife 
how you stand. Tell her how much you owe me, and how 
near it is to the value of the land." In a letter dated June 
9, 1890, Thomas Bell wrote: "I opened the inclosed tele- 
gram, and found it to be from madame, on the question of 



200 Bbzx v. Staaokb. [141 CaL 

family allowance. I wish you would tell her youi position, 
that your debt to me has run up to $82,000 from $25,000, 
which it was on August 27, 1887. Explain to her that it is 
absolutely necessary to curtail expenses in accordance with 
your means. I do not really believe your land is worth 
more than ten dollars per acre, so that what you owe me is 
coming pretty close to that.'' There are many other letters 
of like character. In December, 1891, the indebtedness of 
plaintiff to Thomas Bell was over $100,000, and after writ- 
ing and informing plaintiff, Thomas Bell borrowed $60,000 
from the San Francisco Savings Union and caused Staacke 
to give the bank a deed of trust on both tracts of land to 
secure it. The money, less the expenses of the loan, was 
placed to the credit of plaintiff, and he was fully informed 
of the transaction. He made no objection, but continued to 
draw money from Thomas Bell up to the time of his death, 
in October, 1892. Plaintiff never, by word or act, denied 
the claims of Thomas Bell that the land was held in trust 
as security until long after the death of Bell. After the 
death of Thomas Bell the plaintiff presented a claim against 
the estate, claiming $360 per month, which he alleged was 
agreed to be paid him for the support of his family out of 
the rents, issues, and profits of the ranch. This claim was 
rejected by the executors, and this action was commenced in 
March, 1893. 

In the original complaint, which was verified, plaintiff 
alleged the conveyance to Staacke ; the fact that Thomas Bell 
was to have possession of the ranch, receive the rents, issues, 
and profits thereof, and pay to plaintiff three hundred and 
sixty dollars per month, independent of the rents or profits. 
In this original complaint, which was introduced in evidence, 
plaintiff alleged and swore, **that it was understood and 
agreed between said Thomas Bell and plaintiff that the said 
monthly allowance should continue until the sale of said prop- 
erty as aforesaid, and should be, with the other amounts there- 
tofore advanced and to be thereafter advanced by said Thomas 
BeU to plaintiff, charged to plaintiff, to be reimbursed by him 
to said Thomas Bdl out of the proceeds of sale.'' Thus, we 
have the acts and conduct of the parties up to the time of 



Nov. 1903.] Bell v. Staaokb. 201 

Bell's death, and the sworn statement of the plaintiff, at the 
time he commenced this action, all tending to show that the 
deed was in lieu of the notes and mortgage, and intended as 
security for the indebtedness due, and to become due, to 
Thomas Bell. The contemporaneous ani practical construc- 
tion of a contract by the parties is strong evidence as to its 
meaning if its terms are equivocal. ''Tell me," said Lord 
Chancellor Sugden, ''what you have done under a deed, and 
I will tell you what the deed means." (Atiomey-Oenerdl v. 
Drummond, 1 Dru. & Walsh, 353; 2 H. L. Cas. 837. See 
Keith V. Electrical Engineering Co., 136 Cal. 181, and cases 
cited.) After the original complaint was filed and the case 
had been long pending, the plaintiff for some reason changed 
his attorney, and the theory of the ease was changed by 
amending the complaint and claiming that the deed to Staacke 
was in trust for plaintiff, and not as security for any of the 
plaintiff's indebtedness to Thomas Bell. Plaintiff had the 
right, probably, to so amend his complaint and change his 
theory, but this did not change the effect to be given to a 
solemn statement of the fact when relying upon his previous 
theory. And where the court below seems to have baaed its 
finding entirely upon the evidence of plaintiff, the fact stated 
in the former verified complaint beoomes very material in 
determining whether or not the abstract statement of plain- 
tiff on this trial, under his latest theory, shall prevail as 
against the mass of facts and circumstances herein narrated. 
The whole record must be looked to in order to ascertain the 
truth. So viewing the record, we do not think there was any 
substantial conflict. This was the view expressed by the 
lower court upon the first trial, for, in the opinion, it is said : 
"The deed to Staacke of the ten thousand-acre tract was in 
consideration of two hundred and sixteen thousand dollars in 
notes held and payable to Thomas Bell. Prima facie, he paid 
the whole consideration. But by the agreement of August 
27, 1887, it clearly appears that John S. Bell has an interest 
Ib that consideration, — ^that Thomas Bell holds said notes, 
not simply as pledgee, but that he holds them in trust as well, 
for the interest of both himself and John S. Bell. When he 
changes the security, John S. Bell's interest follows the piop« 



202 Bbll v. Staackb. [141 CaL 

erty. " It is equally true that Thomas Bell's interest followed 
the property. He changed the notes and mortgage which were 
pledged to him into land by consent of the owner of the notes 
and mortgages. He took the land in lieu of the notes and 
mortgage, and it became subject to the written agreement j 

made as to the notes and mortgages. (Price v. Beeves, 38 | 

Cal. 457; Roach v. Caraffa, 85 Cal. 437; Barker v. Hurley, \ 

132 Cal. 28.) The rights of Thomas Bell in and to the trust I 

property were declared under the written instrument of 
August 27, 1887. It was the duty of Thomas Bell, as holder 
or pledgee of the promissory notes and mortgages, to collect 
them when due. He did commence foreclosure proceedings 
for the purpose of collecting them. If he had obtained title 
to the land under the foreclosure, the title would have been 
held by him as security under the written agreement made 
August 27, 1887. The title was conveyed by consent of 
plaintiff to Staacke, and thus acquired without the machinery 
of foreclosure. Thomas Bell continued to hold the land in 
the name of his confidential clerk, in lieu of the notes and 
mortgages. He continued to hold possession of the land and 
collect the rents and profits. He was doing so for the benefit I 

of plaintiff, and upon the faith of the title thus held he | 

made advances for years and years for the support of i 

plaintiff and his familji^ Plaintiff knew the condition of the | 

title, the fact that Thomas BeU claimed it as security, and 
that upon the faith of such claim the advances were made to 
him. He was informed time and time again that Thomas | 

Bell was making the advances on the property. He never 
by word or act repudiated such claim by Thomas Bell, but 
insisted upon the advances being made. He will now be 
held to the agreement as he understood it, as he acquiesced in 
it for years, as he believed it to exist at the time he presented 
his claim against the estate of Thomas Bell and at the time 
he commenced his action. 

The alleged errors of law complained of consist of objec- 
tions sustained to two questions propounded by the attorney 
for appellants to the defendant Staacke on his direct exami- 
nation. One was an inquiry whether James Wheeler, at- 
torney for Thomas Bell, when he delivered the deed from 
Grover and Rosener to the witness, made any remark as to 
the purpose of its execution. The ruling sustaining the ob- 



Nov. 1903.] Bell v. Staackb. 203 



jection was correct. The conversation referred to occurred 
nearly three months after the deed had been executed, and 
there was no showing that James Wheeler was the attorney, 
or agent, or authorized to act or speak for plaintiff, or that 
plaintiff was present when the conversation referred to was 
had. 

A question of the same tenor was asked the witness with 
reference to a conversation with Thomas Bell about the same 
time, and was properly sustained, as there was no showing 
that plaintiff was present 

The letter from Staacke to Louis James was not admissible 
on any principle, and the court properly excluded it. It was 
a private letter, written after the death of Thomas Bell, and 
plaintiff had never seen or known of its existence. 

For the reasons given, the order denying the motion for 
a new trial is reversed, and the cause remanded. 

McFarland, J., concurred. 

SHAW, J., concurring. — I concur in the opinion of Justice 
Lorigan. I desire, in addition, to say, plainly and unequivo- 
cally, that it is entirely immaterial whether a specification 
of a particular wherein the evidence is claimed to be insuffi- 
cient to justify a verdict or decision points to a probative fact 
or an ultimate fact. In either case the specification is suffi- 
cient as to the particular fact pointed out, and challenges 
the sufficiency of the evidence to sustain it. 

Angellotti, J., and Henshaw, J., ooncurred with Shaw, J. 

The following opinion was rendered by the oourt in Bank 
on rehearing, December 28, 1903. 

THE COUBT.— The petition for rehearing is denied, but 
the judgment heretofore rendered herein in this court is 
hereby amended so as to read as follows: **The order denying 
the motion for a new trial is reversed except as to the issues 
covered by the 'twenty-third' paragraph of the findings, and 
the following portion of the 'twenty-second' paragraph of 
the findings, to wit: 'That John S. Bell was indebted to 
Thomas Bell on the sixteenth day of October, 1892, the day 



204 Ez Pabtb Braxtn. [141 GaL 

when Thomas Bell died, on account of adyances of money 
and interest thereon, in the sum of $52,120.15/ and para- 
graph '4' of the conclusions of law, and except as to the issneB 
covered by the 'additional findings,' and cause remanded for 
new trial of all other issues.'' 



[CriBL No. 1018. In BaBk^KoTember 80, 1M8.] 
Ex Parte F. W. BBAUN, on Habeas Corpus. 

Municipal Chabtx»— Taxatton iob KsyxNm— ^'MxmiciPAL Art air" 
— OoMSTiTunoMAL LAW — ^PowsE Of liBOisiiATUBS. — A moiiieipal 
charter framed under aeetion 8 of article ZI of the eonstitution, 
conferring upon it the power of taxation for purposes of revenue, 
makes such power a ''municipal aifair," within the meaning of see- 
tion 6 of that article, making an exception of ''municipal affairs" 
to the operation of genezal laws; and such power cannot be with- 
drawn or abrogated bj the legislature. [Beattj, 0. J., and Lori- 
gan, J., dissenting.] 

Id. — OPiaiATioN or Poxjtioal Oodb— Taxation iob Bxouiation Only. — 
Section 3366 of the Political Code, enacted in 1901, providing that 
' ' boards of supervisors of the counties of the state, and the legisla- 
tive bodies of the incorporated cities and towns therein, shall, in 
the exercise of their police powers, and for the purpose of regula- 
tion, as herein provided, and not otherwise, have power to license all 
and every kind of business not prohibited by law,'' etc, is not ap- 
plicable to a citj governed by a charter framed under the constitu- 
tion, where such charter confers upon its legislative body the power 
to impose and collect license-taxes for revenue purposes. [Beatty, 
C. J., and Lorigan, J., dissenting.] 

!]>. — SouBOS or Chabteb Powxb or TAXATioN.^The power of cities un- 
der freehold charters to raise mon^ by taxation for municipal pur- 
poses does not find its source in any grant by the legislature, but 
has been directly granted by the people of the state by the provi- 
sions of the constitution. 

HABEAS CORPUS to test the validity of an ordinance of 
the City of Los Angeles, under which petitioner was convicted 
in the Police Court. H. C. Austin, Police Judge. Charles 
Elton, Chief of Police, Respondent 



I 



Nov. 1903.] Ex Pabtb BiurN. 205 

The facts are stated in the opinion of the court. 

Lawler, Allen & Van Dyke, for Petitioner. 

Christopher C. Wright, Huey & Beach, Frank G. Hender- 
son, and Gteorge S. Hupp, Amid Curiae. 

W. S. Mathews, City Attorney, for Respondent. 

ANGELLOTTI, J.— Petitioner was taken into custody 
under a warrant issued upon a complaint filed in the police 
court of the city of Los Angeles, charging that he, on the 
seventh day of April, A. D. 1903, in said city, ''did willfully 
and unlawfully conduct, manage, and carry on the business 
of a wholesale liquor dealer without first having procured a 
license from the city of Los Angeles so to do, . . . contrary 
to the forms of the ordinances and resolutions adopted and 
approved by the municipal authorities of said city." Having 
been brought before said police court under said warrant, he 
was committed to the custody of the chief of police of said 
city pending further proceedings in the case, and being now 
detained by said chief of police under said warrant and 
commitment, seeks his discharge on habeas corpus. 

The ordinance of the city of Los Angeles upon which the 
prosecution is based is entitled: ''An ordinance providing for 
licensing and regulating the carrying on of certain profes- 
sions, trades, callings, and occupations carried on within the 
limits of the city of Los Angeles, '* and was enacted February 
28, 1903. It is devoid of regulating provisions, being devoted 
entirely to the imposition of a license-tax upon various trades 
and occupations and the collection thereof. It imposes a 
license-tax upon a great majority of callings and occupations, 
and in several instances the amount of tax is based upon the 
amount of business transacted. It includes numerous call- 
ings which are in no degree subject to regulation. By its 
terms, a license-tax of sixty dollars per month is imposed on 
every person, firm, or corporation conducting, managing, or 
carrying on the business of a wholesale liquor dealer, and 
a wholesale liquor establishment is defined by the ordinance 
to be any place where spirituous, vinous, malt, or mixed 
intoxicating liquors are sold, served, or given away in quan- 



206 Ez Pabtb Br^uk. [141 Cal. 

titles of not less than one fifth of a gallon, and not to be 
drunk upon the premises. 

Taking into consideration the absence of regulatory pro- 
yisionSy the amounts of the several taxes imposed, and the 
nature of many of the subjects of taxation named in the 
ordinance, including the particular business here involved, it 
is very clear that the license-tax upon the business alleged to 
be conducted by petitioner was imposed solely for the purpose 
of raising revenue. (See Taum of Santa Monica v. Quid- 
inger, 137 Cal. 658.) This does not appear to be questioned 
by the respondent 

It is also clear, under the decisions of this court, that the 
freeholders' charter of the dty, which was approved by the 
legislature in 1889, must be construed as conferring upon 
the municipality the authority to license all occupations and 
callings carried on within the city, for the purpose of revenue, 
as well aa regulation. (Charter, sec. 2, subd. 13; Stats. 1889, 
p. 456.) The case, in this respect, is not distinguishable to 
petitioner's advantage from that of Ex parte Frank, 52 Cal. 
606,^ and that of City of San Jose v. San Jose etc. R. fi. Co., 
53 Cal. 475 (480), wherein substantially similar charter pro- 
visions were construed. Subdivision 13 of section 2 of the 
Los Angeles charter, taken as a whole, clearly contemplates 
the collection of revenue licenses. It must also be remem- 
bered that at the time of the adoption of said charter, munici- 
pal corporations and counties were allowed to license for 
revenue. The ordinance in question was enacted by the mayor 
and council of Los Angeles in the exercise of the power to 
license for revenue, conferred by the city charter, and we 
see no reason to question its validity, if the power of the 
municipality to license for revenue purposes has not been 
taken away by the legislature of the state. The state legis- 
lature in 1901 added a new section to the Political Code, 
providing that ** Boards of supervisors of the counties of the 
state, and the legislative bodies of the incorporated cities 
and towns therein, shall, in the exercise of their police powers, 
and for the purpose of regulation, as herein provided, and 
not otherwise, have power to license all and every kind of 
business not prohibited by law/' etc. (PoL Code, sec. 3366.) 



128 Am. Bep. 642, 



Nov. 1903.] Ex Pabtb Braun. 207 

The act adding this section to the Political Code has been held 
to be constitutional, and in a case wherein this court held 
that the section abrogated the power of county boards of 
supervisors to issue licenses for revenue purposes, speaking 
through Mr. Justice Oaroutte, it said: '* Every feature of 
this act of 1901 indicates a plain purpose upon the part of the 
legislature to restrict the licensing power of boards of super- 
visors and city coiincils to matters of regulation alone." {Ex 
parte Pfirrmann, 134 Cal. 143, 148.) That the power of 
municipalities incorporated under the (General Llunicipal Cor- 
poration Act to impose a license-tax for revenue was abro- 
gated by such section 3366 was held in City of Sanara v. 
Curtin, 137 Cal. 583, and Town of Santa Monica v. Quid- 
inger, 137 Cal. 658. Section 3366 of the Political Code, en- 
acted in 1901, is unquestionably a general law, and operative 
so far as the legislature had tilie power to make it so, upon 
every county and municipality within the state. It is con- 
tended by respondent that the state legislature could not de- 
prive a municipality, existing under a freeholders' charter, 
of the power conferred by such charter to impose a license-tax 
for revenue purposes. It is admitted that under the provi- 
sions of section 6 of article XI of the constitution, as amended 
in 1896, aU cities and towns and charters thereof framed 
or adopted by authority of the constitution, are subject to 
sx.(\ controlled by general laws, ** except in municipal affairs." 
But it is contended that the collection of a license-tax for 
revenue is, under the provisions of the Los Angeles charter, 
a ** municipal aflfair,** and that, therefore, the charter pro- 
visions are paramount. This contention presents the real 
question in the case. Admittedly, the provisions of a charter 
framed under and in accordance with the provisions of sec- 
tion 8 of article XI of the constitution, and approved by the 
legislature as therein provided, are, by virtue of the amend- 
ment of 1896 to section 6 of article XI of the constitution, 
so far as ^'municipal affairs'' are concerned, supreme and 
beyond the reach of legislative enactment. 

It is contended at the outset by petitioner that this question 
was necessarily involved in the cases of City of Sonora v. 
Curtin, 137 Cal. 583, and Town of Santa Monica v. Quid- 
inger, 137 Cal. 658, as section 6 of article XI of the constitu- 
tion makes no distinction in this respect between dties and 



Ex Pabtb Brauk. [141 CaL 



towns incorporated under the General Municipal Corporation 
Act and those operating under freeholders' charters. It is, 
however, manifest that there is a distinction between these 
two classes, and that the constitutional amendment of 1896 
to such section in no wise affects cities and towns incorporated 
under the General Municipal Corporation Act Such cities 
and towns were created under general lawB, which general 
laws maj at any time be altered, amended, or repealed by the 
legislature, and the amendment of 1896 has not in the slight- 
est degree impaired the power of the legislature in this re- 
spect. The only limitation on the power of the legislature in 
regard to such cities and towns is, that it must not enact 
''special laws" in regard thereto. They have always been 
and still are subject to and controlled by general laws in 
municipal affairs. This distinction was recognized in Morton 
V. Broderick, 118 Cal. 474, where the court, through Mr. 
Justice Henshaw, after stating the reason for the amendment 
as follows: ''It had been believed by the legislature and by 
the people that it would be wiser to relieve charters of cities 
from the operation of general laws affecting municipal affairs, 
lest otherwise there would be danger of the charter provi- 
sions being entirely frittered away," said: *' Under the con- 
stitutional amendment such acts" (speaking of an act held 
by the court to deal with municipal affairs). *'now apply 
only to cities . . . which have organized under the general 
scheme embraced in the Municipal Corporation Act." The 
Sonora and Santa Monica cases did not, therefore, involve 
the question here presented. 

The meaning of the term ''municipal affairs," as these 
words are used in the constitutional amendment of 1896, has 
been considered in several decisions of this court. In dis- 
cussing the effect of this amendment, this court has always 
recognized the reason that impelled its adoption. After much 
public discussion, and upon an exhaustive consideration of 
the question, it had been decided by this court that the legis- 
lature, prior to this amendment, had power, by general laws, 
to supersede, or take away, without the consent of the muni- 
cipality, the powers conferred upon it by a special charter. 
{Thomason v. Ashworth, 73 Cal. 73; People v. Henshaw, 
76 Cal. 436; Davies v. Los Angeles, 86 Cal. 37.) These de- 
cisions had demonstrated that the power given hy the oonsti- 



Nov. 1903.] Ex Pabtb Bbauk. 209 

tntion to cities to frame charters for their own goyemment 
for the purpose, as was said in People v. Hoge, 65 Cal. 612, 
618, of emancipating them from the authority and control 
formerly exercised over them by the legislature in municipal 
matters, were unavailing if such charters could at once be 
superseded by any general legislative enactment. Under 
these circumstances, the section of the constitution providing 
that all cities and towns and the charters thereof should be 
subject to and controlled by general laws was amended by the 
addition of the words *' except in municipal affairs." What- 
ever conflict may be found in the opinions of this court as to 
the precise meaning of the term, it has always been conceded 
by all the justices that the object of the amendment was to 
secure to the municipality that had, under the provisions of 
the constitution, adopted a charter for its own government, 
the maintenance of its charter provisions in municipal mat- 
ters, and to deprive the legislature of the power, by laws 
general in form, to interfere in the government and manage- 
ment of the municipality. It was enacted upon the principle, 
as stated by Mr. Justice Garoutte in Fragley v. Phelan, 126 
Cal. 383, 387, **that the municipality itself knew better what 
it wanted and needed than did the state at large, and to give 
that municipality the exclusive privilege and right to enact 
direct legislation which would carry out and satisfy its wants 
and needs." The words used in the amendment are words 
of wide import, broad enough to include all powers appro- 
priate for a municipality to possess and actually conferred 
upon it by the sovereign power. The collection of a license- 
tax for revenue purposes is a well-recognized exercise of the 
taxing power. (See People v. Martin, 60 Cal. 153.) That 
the power of taxation is a power appropriate for a munici- 
pality to possess is too obvious to merit discussion. As was 
said by Mr. Justice Field in United States v. New Orleans, 
98 U. S. 381, **A municipality without the power of taxation 
would be a body without life, incapable of acting, and serving 
no useful purpose." It was further said in that case that: 
**When such a corporation is created, the power of taxation 
is vested in it, as an essential attribute, for all the purposes 
of its existence, unless its exercise be in express terms pro- 
hibited. For the accomplishment of these purposes, its author- 

GXIil. OftL— 14 



210 Ex Paste Braun. [141 CaL 

ities, however limited the corporation, most have power to 
raise money and control its expenditure." When the power 
to impose taxes is conferred upon a municipality to enable it 
to raise the money essential for the purposes for which it is 
created, that power necessarily becomes a municipal affair. 
As was said of other powers and duties in People ▼. WxUiam^ 
son, 135 Cal. 415: ''They are peculiarly for the inhabitants 
of the city, and not directly for the benefit of any one else." 
It is confined in operation to the city of Los Angeles, and 
affects none but its citizens and taxpayers and those doing 
business within its limits. Without it, the municipality can- 
not exist, and the municipality alone is directly concerned in 
its preservation. That taxation for municipdl purposes, 
whether by assessments upon property or a tax upon business, 
is a purely municipal matter, is expressly recognized by sec- 
tion 10 of article XI of the constitution, which prohibits the 
legislature from imposing taxes upon municipal corporations, 
or the inhabitants or property thereof, for municipal pur- 
poses, and provides that the legislature may vest in the cor- 
porate authorities thereof, the power to assess and collect 
taxes for such purposes. It was said in City and County of 
San Francisco v. Liverpool, L. and 0. Ins. Co,, 74 Cal. 113, 
124,^ that the purpose of this section is to relegate to the local 
boards the whole subject of county and municipal taxes for 
local purposes, and that the legislature has no power to im> 
pose any tax whatever within those territories for local 
purposes. It was further said therein, speaking of a tax at- 
tempted to be imposed on insurance companies by the legis- 
lature for the benefit of fire departments of counties and 
cities and counties, which was held to be clearly a municipal 
purpose, that the fact that the state at large has an interest in 
the efficiency of the departments does not render the end any 
less a municipal one. The court said also: ''The people of 
the state have such an interest in all the police powers granted 
to these municipalities. And, even if the state may exercise 
a concurrent supervision over a subject, still, so far as actu- 
ally controlled by the local board, it is a matter of municipal 
concern." (See, also, People v. Martin, 60 Cal. 153.) The 



15 Am. St. Bep. 425. 



Nov. 1903.] Ex Pabtb Braun. 211 

caae of Alexander v. City of Elizabeth, 56 N. J. L. 71, is in 
point upon this question of municipal affairs. The constitu- 
tion of New Jersey proyided that the legislature should not 
pass private, local, or special laws regulating the internal 
affairs of towns and counties. The legislature by special act 
attempted to provide for the licensing and regulating of race- 
courses by municipal authorities, and it was held that while, 
primarily, racing within the state was not a question which 
concerned the internal affairs of towns and counties, ''a 
statute which confers powers upon the municipality to re- 
strict, limit, or extend racing is a statute which does undoubt- 
edly affect the internal affairs of such towns within the 
meaning of the constitution." The court further said: ''It 
becomes a matter of the internal regulation of the affairs of 
the municipality by force of the statute, and it cannot be 
claimed, so far as the statute is concerned, to be a question 
any longer of state policy, but a matter concerning the in- 
ternal affairs of the municipality to which it applies. It be- 
comes the power of the municipality." It is of course true 
that the local power of taxation, like all other local powers, 
must have its origin in a grant by the state, and that it may 
at aU times be controlled by the sovereign power. But it does 
not follow that the legislative department of the state may 
so control it. In the absence of constitutional provisions re- 
lating to the subject, the legislative department would neces- 
sarily have unlimited sway, and could, for the state, confer, 
modify, or withdraw the power and prescribe such regulations 
as it saw fit for its exercise. The state constitution is, how- 
ever, the highest expression of the will of the people of the 
state, and so far as it speaks, represents the state. So, where, 
as here, a power is given in the constitutional method by spe- 
cial charter, and not by direct legislative enactment, it can be 
withdrawn only by amendment to the charter in the manner 
provided by the constitution. It is only when local power is 
not conferred by the state constitution, that legislative enact- 
ment is essential to its existence (Cooley on Taxation, 678), 
or is of adequate force to withdraw it. 

The power of cities operating under freeholders' charters 
to raise money by taxation for municipal purposes does not 



212 Ex PAsn Braun. [141 Gal. 

find its source in any grant by the legislature. There is no 
enactment of the l^^ature purporting to yest such authority 
in such cities. Such power has been directly granted by the 
people of the state by the provisions of the state constitution. 
It was held by this court in Security Savings Bank etc, Co. 
V. Hinton, 97 Cal. 214, where the question was directly in- 
▼olyed, that the authority given by the constitution to certain 
eities to frame and adopt ''a charter for its own govermnent*' 
which ''shall become the organic law thereof" is comprehen- 
sive enough to authorize a provision such as that contained 
in the charter of the city of Los Angeles providing for taxa- 
tion for municipal purposes. It is true that the particular 
provision of the charter there involved was that relating to 
taxation on real and personal property, but that is immaterial 
to the particular question under discussion. There was at the 
time of the adoption of the charter no general law of the 
state prohibiting the imposition of a license-tax for revenue, 
and the same constitutional authority that sanctioned the 
provision for a property tax authorized the provisions for the 
revenue license, a method of raising money for local purposes 
then obtaining generally in the counties and cities of the 
state. Those provisions when legally incorporated in the 
charter constituted a grant from the state of the power to im- 
pose a license-tax for revenue purposes. This power, being 
so granted by the state to the municipality for municipal 
purposes, became a ''municipal affair" of the city of Los 
Angeles within the meaning of those words as used in the 
eonstitution, and the legislature was without authority to 
withdraw or modify such power. There is absolutely no basis 
for the argument of counsel for petitioner that the amend- 
ment does not cover cases where the legislature by general 
laws withdraws powers from or grants powers to a munici- 
pality. If the local governmental powers bestowed by the 
eonstitution through the charter may be taken away by the 
legislature, it will readily be seen that the amendment of 1896 
has accomplished nothing. It has already been attempted to 
be shown that when a power is conferred upon a municipality 
for municipal purposes that power becomes a municipal affair. 
As was said by the supreme court of New Jersey in Sutterly 
y. Camden Common Pleas, 41 N. J. L. 495, "To repeal a 
section of the city eharter which eonfers some power of 



Nov. 1903.] Ex Pabtb Braun. 218 

government, or one restraining or limiting the exercise of 
some other, may be as effectual an interference with and 
regulation of its internal affairs as a law setting up within the 
municipality some new adjunct to the local government, or 
one which introduces radical change in the instruments and 
methods of administration." 

We have carefully examined the decisions of this court up- 
on this question of ''municipal affairs," and find nothing 
therein inconsistent with the views herein expressed. Ex 
parte Pfirrmann, 134 Cal. 143, dealt solely with the rights of 
counties to collect such a tax, and what is said therein as to 
the right of the legislature to say in what manner the taxing 
power granted by it shall be exercised has reference only to 
counties and such cities and towns as derive their power from 
the legislature. 

Our conclusions are, theref ore, that the power to collect a 
license-tax for revenue purposes was actually conferred upon 
the city of Los Angeles for municipal purposes by the charter 
framed for its government, under the provisions of section 
8 of article XI of the constitution, and that such power is a 
''municipal affair" within the meaning of those words as 
used in section 6 of article XI of the constitution, and cannot 
be withdrawn or abrogated by the legislature. Section 3366 
of the Political Code is therefore inapplicable to that city. 

It follows that the writ issued must be discharged and the 
petitioner remanded, and it is so ordered. 

Shaw, J.y and Henshaw, J., concurred. 

McFABLAND, J., concurring. — ^I concur in the judg- 
ment remanding the petitioner and discharging the writ, and 
in most that is said in the opinion of Mr. Justice Angellotti. 
I am reluctantly constrained to conclude that, by the amend- 
ment to the constitution in question, the people of the state, 
moved by a temporary impulse (not yet entirely abated) to 
carry the notion of what is called '* local self-government" tj 
extremes, have taken away from the state an important part of 
that peculiar attribute of sovereignty, the taxing power, and 
given it to all the municipalities, great and small, which are 
now organized, or which may be hereafter organized, under 
freeholders' charters. It is difficult to realize that the people 



214 Ex Parte Bbaun. [141 CaL 

of the state, through their legislature, have no longer the 
power to say that a license-tax — a tax upon the right to do 
business, a tax upon capacity — is unjust, unequal, and op- 
pressive, and should not be tolerated anyi«?here within the 
state ; but we think that such is now the law. 

1. Section 13 of article II of the charter of Los Angeles, 
construing all its language together, clearly, it seems to me, 
gives power to the city to license for revenue. 

2. The section of the constitution in question uses the loose, 
indelinable, wild words, ''municipal affairs," and imposes 
upon the courts the almost impossible duty of saying what 
they mean. This court has not undertaken, and probably will 
not undertake, to give a general definition of the words, so as 
to bring all future cases within the two categories of what is 
and what is not a municipal affair. A few cases involvinv; 
the question have arisen, and in each of such cases the court 
has merely determined, as it was compelled to determine, 
whether the thing there involved was or was not within the 
indeterminate constitutional words. And, no doubt, in the 
future each case involving the question will be decided on its 
own facts, without an attempt at generalization. Now, in the 
case at bar, the city having the power to impose license taxes 
for revenue, and the taxes having been levied for the support 
of a municipal government, and the ordinance applying only 
to the territory of the city and the inhabitants thereof, and 
no other person being affected thereby, 1 cannot see how to 
hold that the matter is not a municipal affair, and am driven 
to the conclusion that it would be an usurpation of power 
lo so hold. Of course, whether or not the people of the state 
were wise in thus yielding up so important a power is not a 
judicial question. 

Van Dyke, J., being disqualified, did not participate. 

BEATTY, C. J., dissenting. — I dissent. The decision of 'he 
court is rested, and necessarily depends, upon the construc- 
tion given to the phrase ** municipal affairs," which by the 
amendment of 1896 was added to section 6 of article XI ot 
the constitution. That construction is thus stated in the 
principal opinion: **When a power is conferred upon a muni- 
cipality for municipal purposes, that power becomes a munid- 



Nov. 1903.] Bx Pabtb Beatjn. 215 

pal affair." It is to be observed of this construction that 
until it can be shown that any power is ever conferred upon, 
or exercised by, a municipality for other than municipal pur- 
poses the definition of a municipal affair gains nothing in 
point of clarity or precision by the inclusion of the words 
**for municipal purposes." We have no concern with powers 
that cannot be exercised, and since the powers of a munici- 
pality, if exercised at all, must be exercised exclusively **for 
municipal purposes," these words do not qualify the rest of 
the definition. With or without them, it means the same 
thing, — ^viz., that a power once conferred upon a municipality 
becomes, ipso facto, a municipal affair within the meaning of 
this section of the constitution, and is for all future time 
exempt from any control by act of the legislature, no matter 
how general in its intended operation upon all persons in 
every part of the state. 

The conclusion which results from this view is aptly stat id 
in the concurring opinion of Justice McFarland, who is ** re- 
luctantly constrained to conclude that, by the amendment of 
the constitution in question, the people of the state, moved by 
temporary impulse (not yet entirely abated) to carry the no- 
tion of what is called 'local self-government' to extremes, have 
taken away from the state an important part of that popular 
attribute of sovereignty, the taxing power, and given it to all 
the municipalities, great and small, which are now organized, 
or which may be hereafter organized, under freeholders* char- 
ters. It is difficult to realize that the people of the state, 
through their legislature, have no longer the power to say 
that a license-tax — a tax upon the right to do business, a tax 
upon capacity — is unjust, unequal, and oppressive, and 
should not be tolerated anywhere within the state; but we 
think that such is now the law." I should arrive at the same 
conclusion with the same reluctance if I felt constrained tx> 
adopt it. But I do not. The sole purpose of the amendment 
to section 6 of article XI of the constitution was to restore to 
the fundamental law what had been construed out of it by 
this court in a series of decisions of which Thomason v. Ash- 
worth, 73 Cal. 73, is the most conspicuous example. By that 
section the legislature had been prohibited from creating 
municipal corporations, as they had theretofore been creat v| 
by special laws. In place of such special laws they were 



216 Ex Pabtb Bbaun. [141 CaL 

eonmianded to proyide for the incorporation and organization 
of cities and towns by general laws. It was provided, further, 
that cities and towns theretofore oiganized (under special 
charters) might reorganize tinder such general laws whenever 
a majority of their electors so decided, and that all cities and 
towns theretofore organized (by special laws) or thereafter to 
be organized (under the general incorporation laws or through 
the action of a board of freeholders), and all charters thereof, 
should be controlled by and subject to general laws. From the 
most casual reading of the section it was plain that, unless 
the frames of the constitution intended to contradict them- 
selves in the short space of a dozen lines, they did not mean 
to include among the general laws which would control the 
provisions of special charters the general laws for the incor- 
poration and organization of municipal incorporations. It 
was accordingly held, in a maturely considered case decided 
shortly after the new constitution took effect, that the Con- 
solidation Act, which constituted the charter of San Fran- 
cisco, was not superseded or controlled by what was known as 
the McClure charter. (Desmond v. Dunn, 55 Cal. 242.) I 
am not aware that the soundness of that decision has ever 
been directly impeached, and certainly it is not to be ques- 
tioned at the present day. Nevertheless, the court in 
Thomason v. Ashworih, 73 Cal. 73, by a bare majority, held 
that the charter of San Francisco, and every special charter 
granted by the state, was controlled by the Street Improve- 
ment Law, and this notwithstanding the dissenting opinion 
of Justice McBanstry, — concurred in by Justice Sharpstein, 
— in which it was demonstrated with irresistible logic that 
the Street Improvement Act, which had no operation or appli- 
cation outside of incorporated cities and towns, was nothing 
but a part of, or an amendment to, the general law for the 
incorporation of cities and towns, which it had been there- 
tofore decided, in accordance with the plain intent of the 
constitution, would not control special charters. The result 
of this decision was to leave the legislature free to override 
ad libitum the provisions of all special charters by the simple 
device of enacting statutes which were general in no other 
sense than that they applied generally to all municipal cor* 



Nov. 1903.] Ex Parte Bbaun. 217 

porations, and which were not a part of the Municipal In- 
corporation Law only because they omitted to so style them- 
selves in their titles. 

This was the mischief, and the whole mischief, which the 
people intended to remedy when they inserted in the consti- 
tution the ambiguous and ill-chosen phrase "except in muni- 
cipal affairs." Their desire was, as above stated, to put 
back into the constitution what had been construed out of it 
in Thamason v. Ashworth, 73 Cal. 73, and People v. Henshaw, 
76 Cal. 436. The change was made for the behoof of the citi- 
zens of San Francisco and other specially chartered cities and 
towns in order to exempt them from interference in their local 
affairs by the enactment of laws binding upon them, but not 
binding upon the people of the state at large. They had no 
intention and no wish in extending this reasonable guaranty 
of self-government to the citizens of specially chartered cities 
and towns, to go to the extreme length of exempting them 
from the authority of the legislature in matters of general 
state policy susceptible of regulation by laws operating uni- 
formly throughout the state upon all persons similarly situ- 
ated, whether the inhabitants of incorporated cities or not 
If this view be correct it indicates the correct construction 
of the words "municipal affairs." They stand in contradis- 
tinction to "state affairs," and whenever a matter is found 
susceptible of general regulation by a law which binds all the 
people of the state, and when it is so regulated, it ceases 
from that time to be, although before it may have been, a 
municipal affair. 

It is thought to be a conclusive argument against this view 
that it involves the possible extinguishment of all municipal 
privileges ; for it is said if the legislature by exempting what 
was formerly a subject of taxation by a general law can 
invalidate local ordinances imposing taxes on the subject so 
exempted, they could invalidate all local regulations touching 
matters universally conceded to be of peculiar municipal con- 
cern. The validity of this argument depends upon the as- 
sumption either that the legislature can regulate all such 
matters by general laws uniformly operating throughout the 
state, or that, while that is impossible, they will pass laws 
which in terms purport to make such general regulations, 
although they are in fact impracticable or oppressive. The 



218 Ex Pabte Brauk. [141 Cal 

argument that because power may be abused therefore it 
cannot exist is one that has been repudiated by this and all 
other courts times without number, and it is not to be sup- 
posed that because the legislature may enact oppressive and 
unreasonable general laws it has no power so to legislate. 
It unquestionably has the power, and the only remedy for its 
abuse is the ballot-box. Ordinarily, this is a fairly effective 
remedy, and at all events it is no help to the construction of 
a doubtful clause of the constitution to say that if it is con- 
strued in a particular way the legislature may do something 
absurd and unheard of. The alternative assumption that all 
matters now regarded as peculiarly the subject of local regu- 
lation under the powers conferred by special charters may 
in course of time be fonnd susceptible of reasonable and 
proper regulation by general laws operative on the same sub- 
ject throughout the state is opposed to all experience and 
all probability; but conceding that it might be so, the only 
result would be, that as such legislation was discovered to 
be possible with respect to one matter after another now 
deemed a municipal affair, we should simply find ourselves 
governed throughout the state by good general regulations, 
instead of good special regulations in particular localities. 
Such a prospect should have no terrors for any one imbued 
with the spirit of a constitution which above all other things 
insists upon general laws wherever they can be made appli- 
cable, and requires all laws of a general nature to have a 
uniform operation. It is this pervading spirit of the constitu- 
tion which demands that acts of the legislature establishing 
and defining the general policy of the state with respect to 
such a matter as subjects of taxation, should be supreme over 
all local regulations, and that such a subject so regulated 
should pass from the category of ''municipal affairs." 

But whatever may be thought of these views it is at least 
certain that there must be some criterion other than the mere 
fact of its inclusion in a charter by which to determine 
whether a particular provision is a municipal affair. If the 
mere fact that a provision is in a charter (necessarily for 
municipal purposes) stamps it as a municipal affair, there is 
nothing left for that clause of the constitution to operate 
upon which plainly declares that except in municipal affairs 
the provisions of all charters are controlled by general laws. 



Nov. 1903.] Ex Parte Bbaun. 219 

It is said in the principal opinion that a contention of 
counsel similar to that which I have endeavored to enforce 
would deprive the amendment of 1896 of any meaninor or 
effect whatever. It seems to me to be giving the amendment 
a very potent and beneficial effect to hold that it prevents the 
le^rislature from impairing the provisions of special charters 
by laws like the Vrooman Act, which apply only to munici- 
pal corporations, and which are in substance mere amend- 
ments to the Municipal Corporation Act. This was the ef- 
fect which Justice McKinstry strove to give to the original 
section, and this is the effect which the court refused to give 
it. To reverse that ruling, and restore the constitution to 
what it was intended to be, is something achieved, so that to 
give the amendment some effect it is not necessary to go to 
the extreme of holding that it has rendered local charters 
supreme over laws that are general in the broadest sense of 
the word. The legislature has, in effect, declared that no 
man in the state, in city or county, shall be taxed upon his 
occupation. If this is a just principle of taxation, — and of 
that the legislature is the final judge, — it holds good in cities 
as in counties, each of which requires local revenues for local 
purposes, and since the law is equally applicable to all the 
people, and was designed for all, it should bind all alike. 

Lorigan, J., eoncurred in the dissenting opinion. 

Rehearing denied. 



220 LiKDUEY V, SUPERIOB COUBT. [141 CaL 



[S. p. No. 8777. In Bank.— November 80, 1903.] 

HBRVBY LINDLEY, and POKEGAMA SUGAE PINE 
LUMBER COMPANY, Petitioners, v. SXJPERIOR 
COURT OF SISKIYOU COUNTY, Rapondents. 

Pbohibition — Tbial or Gauss — Jurisdiction — Bxiodt bt Afpial. — 
This court will not sustain a writ of prohibition to prevent the sa* 
perior court from trying a case before it, for alleged want of juris- 
diction, there being a remedy by appeal. It is not a suiBcieiit 
ground for the writ that the trial will be expensive and troublesome. 

PETITION for Writ of Prohibition to the Superior Court 
of Siskiyou County. J. S. Beard, Judge. 

The facts are stated in the opinion of the court 

E. S. Pillsbury, J. F. Farraher, and Pillsbury, Madison & 
Sutro, for Petitioners. 

The petitioners were entitled to have the action dismissed 
and prohibition will lie to prevent a trial of it {Keystone 
Driller Co. v. Superior Court, 138 Cal. 738; White v. Super- 
xor Court, 126 Cal. 245; Uodoc Land etc. Co. v. Superior 
Court, 128 Cal. 255 ; Hopkins v. Superior Court, 136 CaL 552 ; 
Anderson v. Superior Court, 122 Cal. 216 ; Siebe v. Superior 
Court, 114 Cal. 551.) 

THE COURT.— The petition in this case is for a writ pro- 
hibiting the superior court from proceeding to the trial of an 
action in which the petitioner is a defendant If, as con- 
tended, the superior court is without jurisdiction, there is 
of course a remedy by appeal for any adverse judgment af- 
fecting petitioner, and it is not sufficient ground for inter- 
fering by prohibition that the trial will be expensive and 
troublesome. 

The establishment of a rule allowing a resort to the writ 
of prohibition on that ground would involve too serious and 
too frequent interruption to the business of the court 

Writ denied. 



Dec 1903.] BiCHEY t;. East Bedlands Watsb Co. 223 



[L. A. No. 1117. Department Two. — ^December 1, 1903.] 

N. BICHEY et al., Appellants, v. EAST BEDLANDS 
WATEB COIVEPANT et al., Bespondents. 

Watbs CtoMPANT— Watkb Oebtitigates in Othxb Oompakibs — OOM- 
8TBU0TI0N ow Bbsolution. — A TeBolution of a water eompany pro- 
viding that upon receipt by it of one water eertifleate regularly 
issued on stock of eaeh of two other water eompaoies named, and 
on payment of twenty dollars, ''one share of stock in this corpora- 
tion'' shall be issued, ''the ?^ter represented hy the same to be 
used upon the land in East Bedlands of the person to whom said 
share is issued, the water represented by said share to be delivered 
at the highest comer of the land whereon the same is to be used," 
cannot be otherwise construed than as meaning that each share 
of the water company's stock represented a proportionate part of 
all the water of the company, and the words "water represented 
by the same," must be regarded as referring, not to the shares 
turned into the company, but to the share of stock issued by it. 

Id.— OONTIEMATION Of CONSTEUOTION — ^LlABILITT, EXPENSK, AND BeNX- 

FIT or Stockholders. — Such construction of the resolution is con- 
firmed by the liability of each stockholder assumed by the contract 
of subscription for his proportion of the debts of the defendant 
corporation and of the aggregate expenses of the water system, 
and by his presumptive right to a corresponding share of its profits 
or dividends; and also by the fact that the extra expense of the 
shares of one of the other water companies was incurred by all of 
the stockholders of the defendant company, and cannot be supposed 
to have been incurred for the exclusive benefit of part of them. 

Id. — Equal Bights or Stookholdebs. — In the absence of provision to 
the contrary in the certificates of stock of a corporation, or in its 
resolutions, by-laws, or charter, or other writing, the stockholders 
are to be regarded as equal in right. 

Id. — ^XJsx or Distinot Water Certdtioates or Distinct Lands— Beso- 
LUTiONS — OoNTSAor BiOHTS. — The habitual use by the defendant 
water company of the water certificates acquired from one of the 
other companies on lands below its canal, and those acquired from 
the other company at greater expense on lands above the canal, and 
the resolutions of the defendant making such distinct use exclusive, 
cannot preclude stockholders on lands below the canal, whose supply 
of water has failed, from asserting their contract rights to a pro- 
portionate share of the whole water owned by the defendant. 



222 BiCHEY V. East Bi&DiiAXDS Water Co. [141 CaL 

Id. — ^Advesse Useb — ^Estoppel. — The use of the water delivered to some 
stoekholders cannot be regarded as adverse either to the other stock- 
holders or to the company. Nor eoold the stockholders, whose 
lands were below the canal, have any right to complain, so long as 
they were supplied with the amount of water to which they were 
entitled; and they are not estopped by acquiescence from assertion 
of their right to their proportionate share of water, which the com- 
pany had ceased to supply them. 

APPEAL from a jndgment of the Superior Conrt of San 
Bernardino County and from an order denying a new trial. 
John L. Campbell, Judge. 

The facts are stated in the opinion. 

Otis & Oregg, and Charles E. Truesdell, for Appellants. 

Stoekholders are presumed to have an equality of right 
where the contrary is not expressly provided for. (1 Mora- 
wetz on Corporations, sec. 279 ; Taylor on Corporations, sees. 
31, 32, 448, 458; Plimpton v, Bigdow, 93 N. Y. 592; BurraU 
V. Bushwick R. R. Co., 75 N. T. 211-216; Kent v. QuicksUver 
Mining Co., 78 N. T. 159 ; Jermain v. Lake Shore etc. B. R. 
Co., 91 N. T. 483-492; Field v. Pierce, 102 Mass. 253-261; 
Fisher v. Essex Bank, 5 Gray, 373-378.) There was no ad- 
verse user. (BaU v. KeU, 95 CaL 606, 613.) 

Frank W. Burnett, Amicus Curias, also for Appellants, 
cited as to equal rights of stockholders, 1 Morawetz on Cor- 
porations, sec 305, and on the question of estoppel, Anaheim 
Water Co. v. Semi-Tropie Water Co., 64 CaL 185. 

E. B. AnnablCy for Respondents. 

Irrigation rights established by a user of ten years 
should not be disturbed. (Civ. Code, sec. 552; Merrill v. 
Southside Irrigation Co., 112 Cal. 426.) There may be pre- 
ferred stock in a corporation. {Kent v. Quicksilver Mining 
Co., 78 N, Y. 159.) The equities of the case, and under- 
standing of the parties, should be considered. (1 Morawetz on 
Corporations, sees. 229, 232 ; Charter v. San Francisco Sugar 
Refining Co., 19 Cal. 220; Shorb v. Beaudry, 56 Cal. 446; 
Cornell v. Corbin, 64 Cal. 197; KoU v. LOienthal, 81 CaL 
378; Behlow v, Fischer, 102 Cal. 208.) 



Dec. 1903.] BiCHEY v. Bast Bbduinds Water Co. 223 

SMITH, C. — ^Appeal from a judgment for the defendants 
and from an order denying the plaintiff's motion for a new 
triaL The plaintiffs are stockholders of the defendant cor- 
poration, which was organized in the year 1886 for the pur- 
pose of supplying lands of its stockholders with water. The 
other defendants are three of the directors and the zanjeros 
of the company. The lands in question are subdivisions of a 
tract of land near Bedlands, in the county of San Bernar- 
dino, known as the ''Chicago Colony Tract/' which, it should 
be understood, lies on a slope looking to the north — the high- 
est point being the southeast and the lowest the northeast 
comer. The tract is supplied with water by two irrigating 
ditches, of which the one runs along the southern or upper 
boundary of the tract, the other across it, from the southeast 
to the northwest comer. The latter — ^which is known as the 
Bear Valley ditch — divides the tract into two nearly equal 
portions; the upper (exclusive of streets) containing two 
hundred and fourteen acres, the lower two hundred and nine- 
teen. The aggregate of four hundred and thirty-three acres 
corresponds to the number of shares of stock of the com- 
pany originally issued; which is all the stock outstanding, 
except ten shares subsequently issued, which need not be 
further considered. From the organization of the company, 
the lands lying below the Bear Valley ditch have been com- 
monly supplied from it with water, and the lands above it 
from the upper ditch. Under this arrangement, until the 
year 1898, all the lands of the stockholders were sufficiently 
supplied, but in that year the water in the Bear Valley ditch 
began to fail and soon altogether ceased. Thereupon the 
plaintiff, whose lands lie below that ditch, demanded of the 
defendants to be supplied from the upper ditch. But the 
defendant directors, constituting a majority of the board, re- 
fused and directed the zanjeros to deliver the water of the 
upper ditch exclusively to themselves and other owners of 
lands above the Bear Valley ditch, whereupon this suit was 
brought to enjoin the continuance of this discrimination. The 
claim of the appellants is, that the stockholders of the defend- 
ant corporation are equally entitled to share in the water to 
be distributed as in other dividends of the company. That 
of the respondents is, that the waters of the upper ditch are 
appurtenant to the lands lying above the Bear Valley ditch^ 



224 BicHET V. East BBDLAin>s Wateb Co. [141 CaL 

and those of the latter ditch to the lands lying below it— the 
defendant company bein^, it is claimed, a mere agency of 
the owners of the lands to distribute to each set of stock- 
holders the water to which they are severally entitled. The 
facts bearing on these contentions, so far as material^ are as 
follows : — 

The tract of land supplied with water by the defendant 
corporation was originally purchased in the year 1886 by the 
Chicago Colonization Company, which is described by de- 
fendants' witness Malone as ''a stock company organized in 
Chicago." This witness was one of the committee sent out by 
the company which effected the purchase of the land and of 
the water-rights in question. These water-rights were pur- 
chased from one Brown, and consisted of four hundred and 
fifty-four ** Class A certificates'* of the Bear Valley Water 
Company, each entitling the holder to certain supplies of 
water. It was indeed understood by the committee, and after- 
wards explained to the company, that the upper part of the 
tract could not be irrigated from the Bear Valley ditch ; but 
Brown agreed to effect an exchange of two hundred and 
thirty-five of the Bear Valley certificates for two hundred and 
fourteen shares of the stock of the Grafton Water Company, 
another corporation, whose water could be delivered at the 
highest point of the land. Brown also agreed to put in the 
necessary pipes, eta, for the distribution of the water on the 
land, and to vest the same and the Bear Valley certificates in 
a corporation to be organized by himself and associates, and 
on the completion of his contract, turned over to the coloniza- 
tion company. 

By the terms of the agreement Brown was to receive for the 
water-rights purchased thirty dollars per acre, and for the 
construction of the water system or systems, the same 
amount ; — ^which, with the purchase price of the land (thirty 
dollars per acre), made the aggreprate cost per acre ninety 
dollars. Accordingly, this arrangement having been made, 
the land was subdivided and platted by the committee, and 
for the purpose of distributing it among the individual colon- 
ists the several subdivisions were valued at from sixty dollars 
to one hundred dollars i)er acre. This appraisement, accord- 
ing to the testimony of Malone, was made without regard to 
the water, it being contemplated that all the land should be 



Dec. 1903.] BicHcr v. Eaot Rbdlakds Water Co. 225 

equally sapplied. As stated in his own langrnage, ''Our con- 
tract was, we were to receive one inch of water to seven acres 
of the land for the whole. . . . The supply of water was to be 
the same on all the land ; the tract was to receive one inch to 
seven acres. The only difference was its coming through the 
two different sources." And he adds: ''Our certificates 
called for one inch to seven acres." Accordingly, upon the 
report of the committee to the company in Chicago, the lands 
were distributed by lot to the colonists. But how this was 
effected — whether by conveyance from the vendor to the com- 
pany, or some agent of the company, and conveyances from it 
or its agent to the parties, or by conveyances from the vendor 
directly to the latter— does not appear. All that appears as 
to the writings by which the arrangement was carried out is, 
that the purchasers received "certificates" calling for "one 
inch [of water] to seven acres." 

The defendant corporation was accordingly organized by 
Brown and his associates, and the four hundred and fifty-four 
Bear Valley certificates transferred to it; for which, under a 
resolution of the board of directors of date November 4, 1886, 
th^ became entitled, upon the payment of twenty dollars per 
certificate, to receive an equivalent number of shares of the 
new company. Accordingly, from the statement signed by 
Brown, appeariug in the minutes of the company, of date 
February 9, 1887, it appears that the number of shares speci- 
fied — ^with other shares the issue of which is not explained — 
hbd previously to that date been issued to them, and from 
the same writing it further appears that the scheme was that 
these were to be canceled and in lieu of them one share of 
stock isued to each of the colonists for each acre of land 
owned by him. This scheme, it may be gathered from the 
evidence, was carried into effect and the stock issued accord- 
ingly, and it is so assumed by the parties and found by the 
court 

At this time the exchange of Bear Valley certificates for 
stock of the Crafton Water Company had not been effected, 
but it seems that Brown and his associates — ^who continued in 
the management of the company until some time subsequent 
to January 11, 1888 — ^had an arrangement with the Crafton 
Water Company for securing this stock, and that the exchange 
OXLL ObL— 15 



226 RiOHBT V, East Rkdlands Water Co. [141 CaL 

was consummated in April, 1890. In the meanwhile, as may 
be gathered from the resolution of the board of directors 
referred to in the findings of date September 20, 1892, and 
other circumstances, the two hundred and thirty-five Bear 
Valley certificates set apart to be exchanged for the Grafton 
Water Company stock had been allotted to those of the stock- 
holders owning land above the Bear Valley ditch, and pending 
the consummation of the exchange under a temporary ar- 
rangement between the Crafton Water Company and the Bear 
Valley Water Company, they were supplied with water by the 
latter company. 

Upon the above facts, it is found by the court, in effect, that 
it was expressly agreed between the Chicago company and the 
several colonists that the two hundred and fourteen shares of 
the Crafton Water Company and the two hundred and nine- 
teen Bear Valley certificates were to be vested in the defend- 
ant corporation, the former for the separate use of the colon- 
ists owning lands above the Bear Valley ditch ; the latter, for 
tlie use of those owning lands below it ; and that there should 
be issued to the stockholders of the former class two hundred 
and fourteen shares of stock, and to those of the latter two 
hundred nineteen shares, whereby the former should be 
entitled exclusively to the Crafton, the latter to the Bear Val- 
ley water. But these findings are without evidence to support 
them, and are in fact contradicted not only by the testimony 
of Malone above cited — on which they are founded — and by 
the terms of the water certificates referred to by him as 
issued to the colonists, but by the written contract between 
each stockholder and the corporation, as expressed in the 
resolution of the board of directors duly authorized by the by- 
laws of the company under which the stock was issued, which 
as embodying the terms of the contract is here inserted: *^ Re- 
solved, that the stock of this corporation shall be issued only 
in the manner and on the basis following, to wit : Upon the re- 
ceipt by the corporation of one water certificate (regularly 
issued) on stock of the Bear Valley Land and Water Com- 
pany, or one share of stock of the Crafton Water Company, 
together with twenty dollars in lawful money of the United 
States, the president and secretary of this company are author- 
ized to issue to the person transferring such B. V. L. & W. 
Co. water certificate or share of stock in the Crafton Water 



Dec. 1903.] RiOHBY v. East Redlands Water Co. 227 

Company, and paying said sum of twenty dollars, one share 
of stock in this corporation, the water represented by the same 
to be used upon the land in East Redlands of the person to 
whom said share is issued, the water represented by said 
share to be delivered at the highest comer of the land whereon 
the same is to be used.'' 

The language of this resolution cannot be otherwise con- 
strued than as meaning that each share of the company's stock 
represented a proportionate part of all the water of the com- 
pany, and entitled the holder thereto; and this constructioti 
is confirmed by the consideration that by the contract of sub- 
scription each stockholder became liable for his proportion 
of the debts of defendant corporation and of the aggregate 
expenses of the water system (Civ. Code, sees. 322, 331), and, 
therefore, presumably entitled to a corresponding share of the 
profits or dividends of the company. (Civ. Code, sec. 3521.) 

It is hardly necessary, therefore, to consider the construc- 
tion placed on the resolution by the respondents' counsel, 
which is, that in the expression **Wie water represented by 
the same'' the last word is to ^e regarded as referring not to 
the share of the stock issued, but to ^Uhe share turned in/' 
or to remark that this is obviously irreconcilable with the 
grammatical construction of the sentence. But it may be 
observed, as tending strongly to confirm the construction we 
have placed on the contract, that the two hundred and four- 
teen shares of the Crafton Water Company's stock were not 
(as is assumed) turned in by the stockholders whose lands 
were to be benefited, but, in pursuance of Brown's contract 
with the colonization company, by Brown and his associates, 
to whom the corresponding stock was originally issued. These 
feShares were canceled and shares in lieu of them issued to 
the colonists on the basis of one share to each acre ; which was, 
in efl:ect, a transfer of the stock. The new stockholders, 
therefore, did not receive their stock in exchange for Crafton 
water ** turned in" by them, but in exchange for more than 
their share of the Crafton stock jointly owned by the com- 
pany and turned in by it through Brown. For it is also to be 
observed that the two hundred and fourteen shares of Craf- 
ton water stock were acquired by the company at an extra 
expense of something over six hundred dollars as compared 
with the cost of the Bear Valley water — being the value of 



BiCHET V, East Redlakm Wateb Ck>. [141 CaL 

twenty-one Bear Valley certifieates required in addition to 
the two hundred and fourteen eorresponding to the number 
of shares acquired, and there is no reason to suppose that the 
expense thus incurred by all was for the exdusiye benefit of 
part of the stockholders only. There is therefore nothing to 
exempt the case from the operation of the orduiary rule, 
which is, that in the absence of provision to the contrary 
in the certificates of stock, or in the resolutions, by-laws, 
or charter authorizing its issue, or other writing, the stock- 
holders are to be regarded as being equal in right (Morawetz 
on Corporations, sees. 279, 305 ; 2 Thompson on Corporations, 
sees. 2224, 2250) ; which indeed is but an obvious application 
of familiar principles of contract to the relations of the 
parties. (Civ. Code, sees. 1625, 1638, 1639; Code Civ. Proc, 
sees. 1856, 1971.) 

Much stress is also laid by the respondents' counsel on 
matters in pais occurring since the organization of the com- 
pany. These are: 1. The habitual use of the Bear Valley 
water on the land lying below the Bear Valley ditch and of 
the Crafton water on the lands lying above it; 2. A resolu- 
tion of the board of directors, of date May 1, 1895, denying 
the petition of one White ''to place a hydrant on the oonier 
of his property lying above the Bear Valley canal," and 
another resolution of the board, of date July 16, 1896, ''that 
no more water from above the Bear Valley canal be delivered 
on land below said canal"; and 3. The fact that these reso- 
lutions were passed, and that the water was used by the 
stockholders, or some of them, under claim of right. But we 
do not think these facts, or the facts found by the court, — 
which go somewhat beyond them, — can be regarded as mate- 
rially affecting the rights of the stockholders as determined 
by their contract with the company. For, from the nature 
of the case, there could not be any continuing occupancy of 
the water by any of the stockholders, but occupancy only at 
times when the water was delivered to them. Nor in view of 
the relation of the parties could such occupant as they had 
be regarded as adverse either to the company or to their 
fellow-stockholders. Hence no rights could be acquired by 



Dec. 1903.1 Pbopub v. Wardrip. 229 

prescription. Nor can any just claim o£ right, by way of 
estoppel, be predicated on the plaintiffs ' acquiescence in the 
use of the water as it was used. So long as they were 
supplied with water they had no right to complain, and there 
is therefore no ground on which they can be held to be 
precluded from asserting their right to their proportionate 
share of the water, now that the company has ceased to 
supply them. 

We advise that the judgment and order appealed from be 
reversed. 

Oray, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order appealed from are reversed. 

McFarland, J., Henshaw, J., Lorigan, J. 



[Crim. No. 982. In Bank. — ^Deeember 8, 1908.] 

THE PEOPLE, Respondent, v. CHAELE8 WAEDRIP, Ap- 

pellant 

OaaaxfJOt Law— Tbxal iob Mubdik— Bxrusu* of Ikstbuotions Sub- 

VTANTUXXT QlVXN— BiSOBSnON OF JUBT— OONFBBSIOM AND AdIOS- 

8I0N8. — ^Upon the trisl of a defendant ehnrged with mnrder, the 
defendant Ib not prejudieed hj the refusal of instmetionB substanti- 
ally given in the charge of the eouit relative to the diaeretion of the 
jury in determining the penalty in ease of eonvietion, and relative 
to the admissibilitj of an alleged eonf ession and to considering the 
whole of alleged statements and admissions of the defendant. 
J^ — OoHNXonoN or Mubdeb with Bubolabt— Inappuoabli Instbuo- 
noN. — ^Where the evidence showed that if appellant killed the de- 
ceased, the killing was in immediate connection with a burglary and 
before flight, a requested instruction relative to a murder com- 
mitted after an attempt to perpetrate a burglazy, and when the 
party is in flight, as not being within the meaning of section 189 
•f the Penal Oode^ was properly refused as inapplicable to the 



230 People v. Wardrip. [141 Cal. 

Id. — CONSIDEBINQ ADMISSIONS WITH CAUTION — ^INSTBUGTION AS TO 

Matter of Pact — Habmlesb Refusal — Oommonplacx Matter. — 
A requested inatruction relative to the juiy receiving witb caution 
all evidence of the oral admissions of the defendant; seems, under 
the weight of authority, in violation of the constitutional provision 
against charging as to matters of fact; but without finally so decid- 
ing, the refusal of the instruction cannot be deemed ground for re- 
versal, as it states mere commonplace matter within the general 
knowledge of jurors. 

APPEAL from a jud«nneiit of the Superior CJourt of Sac- 
ramento County and from an order denying a new trial. 
B. C. Hart, Judge. 

The facts are stated in the opinion of the court 

L. T. Hatfield, and C. T. Jones, for Appellant 

U. S. Webb, Attorney-General, and C. N. Post, Assistant 
Attorney-General, for Respondent. 

McPARLAND, J. — The defendant was charged with the 
murder of one Hugh Duffy. He first pleaded "Guilty," but 
afterwards withdrew that plea and pleaded **Not guilty." 
He was convicted of murder in the first degree, and judgment 
of death followed. He appeals from the judgment and from 
an order denying the motion for a new trial. 

The main contentions of appellant for a reversal are based 
on the refusal of the court to give certain instructions asked 
by appellant, and those discussed in the briefs are numbers 
18, 19, 22, 25, and 26. 

Number 26 is merely a statement to the jury that if they 
should find the appellant guilty of murder in the first degree 
they have the discretion of determining whether the punish- 
ment should be death or imprisonment for life ; but in another 
part of the instruction the jury were expressly so instructed, 
and were clearly told what the form of their verdict should 
be in order to express their discretion touching the penalty 
of death or imprisonment. They were fully informed on the 
subject. 

Number 25, which is in substance to the effect that a murder 
committed after the perpetration of or attempt to perpetrat-i 



Dec. 1903.1 People v, Wardrip. 231 

a burglary, and when the party is in flight, is not done in such 
perpetration or attempt to perpetrate within the meaning of 
section 189 of the Penal Code. This proposed instruction was 
not applicable to the evidence in the case, which shows that, 
if appellant killed Duffy, the killing was in immediate con- 
nection with the burglary, and before flight. 

Number 22 was merely that a confession to be admissible 
must be freely and voluntarily made, etc. ; but the court had 
given the instruction, substantially, in other parts of the 
charge; among other things it had said: **In considering the 
weight to be given to any alleged confession made by de- 
fendant, you should consider all the testimony in the case 
upon that point, the position of the defendant at the time, 
his surroundings, his strength of mind as shown by the evi- 
dence, and any hopes or fears, if any, that may have in- 
fluenced him." 

Number 18, to the effect that **when there was evidence of 
admissions made by defendant, he is entitled to have the 
whole of the statement or admission heard and considered by 
the jury," was covered by other parts of the instruction, and 
defendant was not prejudiced by the refusal to give it. On 
this subject the jury was told that '*In considering the evi- 
dence as to the oral admissions of the defendant touching the 
matters involving the offense with which he is charged, you 
will take into consideration all the statements made by him, 
whether for or against himself, and give such statements fair 
consideration*" 

The only point in the case which calls for any extended 
notice is based upon the refusal of the court to give the 
requested instruction number 19, which is as follows: **The 
jury is instructed that, in considering the testimony in this 
case, they will receive with caution all evidence of the oral 
admissions of the defendant against himself." It is provided 
in section 2061 of the Code of Civil Procedure that the jury 
is to be so instructed, **on all proper occasions." But in 
Kauffman v. Maier, 94 Cal. 269, it was held by the court in 
Bank, after an elaborate discussion of the question, that such 
an instruction was in violation of the provision of the state 
constitution that ** judges shall not charge juries with respect 
to matters of fact." In People v. O'Brien, 96 Cal. 180, 
Kauffman v. Maier was approved, although it was said that 



232 Paopu t;. Wardrip. [141 CaL 

possibly sach instmction might be given as to the witnesses 
for the people — ^referenee being made to section 1111 of the 
Penal Code, which, however, merely announces the role that 
a defendant cannot be convicted on the uncorroborated testi- 
mony of an accomplice. In the later case of People ▼. 
Sanders, 114 Cal. 216, decided in Department, where the 
judgment was reversed for other reasons, it is merely said, 
in the course of an elaborate opinion, that an instruction 
similar to the one here in question was unobjectionable and 
should have been given; but no reference is made to Kauff- 
man v. Maier, 94 Cal. 269, and the attention of the court was 
evidently not called to the question of the constitutionality 
of the part of section 2061, which directs the giving of such 
instruction. We think that, as the former decisions of the 
court stand, the weight of authority is to the point that the 
instruction here in question is in violation of the constitu- 
tional injunction against judges charging as to matters of 
fact; but, in our view of the matter, it is not necessary for 
us here to finally determine that question. The proposed in- 
struction states a mere commonplace within the general knowl- 
edge of jurors ; and we do not think that either the giving or 
the refusing of such an instruction would warrant a reversal. 
As was said in Kauffman v. Maier, ''It is a matter of common 
knowledge that the statements of a witness to the verbal ad- 
mission of another are liable to be erroneous, and for that 
reason should be received with caution." In People v. New- 
comer, 118 Cal. 263, a reversal was sought because an in- 
struction somewhat similar to the one here under review 
had been given, but the court said that instruction "could 
not possibly have done any harm, for it was merely telling 
the jury to do certain things which jurors would do without 
being so told. Therefore, it was not reversible error." For 
the same reason, the refusal to give the instruction here in 
question is not ground for a reversal 

There are no other points in the case which call for special 
notice. We think that the appellant had a fair legal triaL 

The judgment and order appealed from are affirmed. 

Angellotti, J., Shaw, J., Van Dyke, J., beatty, G. J., and 
Lorigan, J., concurred. 



Dec. 1903.] Pboplb v. GLOVBtt. 233 

THE COURT.— Rehearing denied. 

In denying a rehearing in thia case, it is proper to add that 
upon the question as to the constitutionality of our statute 
prPTiding that the jury are, on all proper occasions, to be in- 
structed that the testimony of an accomplice ought to be 
viewed with distrust and the evidence of the oral admission 
of a party with caution (C!ode Civ. Proc., sec. 2061), which 
question was fully argued both in the briefs herein and orally, 
we are of the opinion that, so far as the statute requires 
such an instruction ever to be given, it is unconstitutional, 
for the reason that such an instruction would be in violation 
of the constitutional injunction against judges charging as 
to matters of fact. It has been frequently said by this court 
that the giving of such an instruction will not be held re- 
versible error where by it the jury are instructed as to mere 
commonplace matters within their general knowledge (People 
V. Wang Bin, 139 Cal. 60, 65; People v. Farrington, 140 
Cal. 656), but we are satisfied that a judgment should never 
be reversed for the refusal on the part of the court to instruct 
upon matters of fact 



[Crim. No. 981. In Bank.— Deeember 8, 1903.] 

THE PEOPLE, Respondent, v. WILLIAM H. GLOVER, 

Appellant 

GuicmAL Law-— MxTRDEB— SELV-DxrKNSx — Instsuctions — ^'Claims'' 
OF Detbndaht. — ^Upon the trial of a defendant charged with mur- 
der, who admitted the killing, and relied upon the ezenee of self- 
defense, and requested instmetions thereupon, it was proper for the 
eourt to preface the instructions given with the statement that they 
were ''based upon this claim of the defendant that he acted in self- 
defense"; and such use of the word ''claim'' is not prejudicial, or 
open to critiexsm. 

Id.' -Appabxnt Dangxb — S uffi c ucn t Gauss fob Bxlief — Instruction 
Pbopiblt Modifdcd. — A requested instruction that "a person m&j 
repel force hy force in the defense of person, property, or life, 
Against one who manifestly intends or endeavors by violence or 



234 People v. Glover. [141 CaL 

Biirprise to eommit a known miB^lemeanor or felony, or eitber, or 
to do great bodily injury to his person, and the danger which woald 
justify the defendant in the act charged against him may be either 
real or apparent; and the jury are not to consider whether th€ 
defendant was in actual peril of bis life or property, but only 
whether the indications were such as to induce a reasonable man 
to believe that he was in such peril of person or property; and if 
he 80 belieyed reasonably [and had suiBeient cause so to believe], 
and committed the act complained of under such belief, even though 
it should appear that the deceased was not armed, yon should acquit 
the defendant,'' — was properly modified by inserting the words 
''and had sufficient cause so to believe," and as so modified tha 
instruction clearly expresses the law. 

ID.^ — Pbopeb Instructions. — ^Instructions upon the law of self-defense, 
consisting of a concise statement of the language of subdivision 3 
of section 197 of the Penal Code, and of excerpts from the binguage 
of the court in FeopU ▼. H&cker, 109 CaL 462, were properly givenu 

Id. — Seeking Quarrel with Design to Create Nbcbssitt — Appligabil- 
ITT or Instruction — Province or Jury. — ^An instruction that the 
plea of self-defense is not available where a person seeks a quarrel 
with the design of creating a real or apparent necessity for kiUing, 
correctly states the law, and is not erroneous, whether it is appli- 
cable or inapplicable to the evidence. Where there was evidence 
to which it might apply, the Instruction was properly given, and it 
was the exclusive province of the jury to determine whether the 
quarrel was sought by the defendant with such design. 

Id. — Fault or Defendant — Instructions Construed Together. — Ajb 
instruction that "a defendant who justifies under a claim of self- 
defense must himself have been without default," and predicating 
the absence of fault, as a condition of being justified in acting 
under a belief of imminent danger, must be construed in connee- 
tion with all of the instructions of which it forms a part, concerning 
the conditions on which the right of self-defense may be asserted, — 
that he was not the first aggressor, or, if so, that he had endeavored 
to decline further struggle and that he had not sought the quarrel 
with the design of forcing a deadly issue, or inviting a real or 
apparent necessity for killing, — and so construed, the instruction is 
limited, pertinent, and applicable. 

Id. — Malice Aforethought — Inference from Circumstances. — An in- 
struction that, "whether the defendant does or does not act with 
malice aforethought, is always to be inferred from the eireum- 
stances surrounding the case," is not subject to just criticism by 
the defendant, whether it be considered as standing alone or as 
construed with other instructions fully dealing with the subjeet of 
malice aforethought. 

Id. — Irrelevant Testimony — Harmless Ruling. — The admission of 
irrelevant testimony having no bearing on the case on re-eiamina- 



Dec. 1903.] People v. Olover. 235 

tion of a witness for the proseeation, where the same matter had 
been originallj brought out on cross-examination of the witness by 
defendant's counsel, is harmless. 

Id. — CfROSS-EXAMINATION — BS-EZAMTKATTON — EXPLANATION OF OONTRA- 

DiCTOBT Statement — Palbitt. — Where a witness for the prose- 
cution is sought to be impeached on cross-examination by a contra- 
dictory statement made immediately after the homicide, which the 
witness admitted to have made, the witness is entitled on re-ezamin- 
ation to explain that such contradictory statement was not true. 

Id. — SiLKNCB Of Witness — ^Explanation of Motive. — ^Where the de- 
fendant, on cross-examination of a witness for the prosecution, 
who was a daughter of the deceased, showed that she did not say 
anything to her father or a doctor who was with him as to the 
presence of the defendant, she was properly permitted on re-ezamin- 
ation to explain her motive for not informing them of the declared 
intention of defendant to kill her father, that the defendant was 
watching her with a gun in hand, and that she was afraid that he 
would kill both herself and her father. 

Id. — Dying Declaration — ^Bes Gestae. — ^Where the preliminary proof 
clearly showed that the dying declaration of the deceased was made 
in the full belief of impending death, it is not objectionable as stat- 
ing a fact which was part of the ret gestae, that when defendant 
approached the house the deceased was talking with the defendant's 
brother about a horse-collar. 

Id. — Weight of Defendant's Bbotheb. — It was not prejudicial error 
to permit the prosecution to ask the defendant's brother, when a 
witness, as to his weight, where it was obvious to the jurj that be 
was a large man and able physically to have intervened an i 8ioppe<l 
the killing of deceased, and where he had testified in effect that he 
did not intervene because he did not think there was going to be any 
trouble till it was all over. 

Id. — Statement of Daughter of Deceased— Hearsay— Foundation 
not Laid. — It was not error to refuse to permit a witness for the 
defendant to testify to a statement made by the daughter who was 
a vritness for the prosecution. If it was the same as she made 
while on the stand, it was inadmissible hearsay; and if different it 
could not be shown to impeach her testimony, where no foundation 
was laid on cross-examination for its admission; and where the 
court offered to allow the defense to recall the witness to lay a 
foundation, and the offer was rejected, the defense must abide by 
such rejection. 

Id. — Imposition of Death Penalty — Province of Jury. — ^Where the 
evidence on the part of the prosecution was such that if believed 
by the jury they were warranted in finding the defendant guilty 
of murder in the first degree, it was in the province of the jury to 
impose the death penalty, and this court cannot interfere with the 
exflKiM of their judgment. 



236 Pbople t;. Olovjer. [141 CaL 

APPEAL from a judgment of the Superior Court of 
Placer County and from an order denying a new triaL J. E. 
Prewett, Judge. 

The facts are stated in the opinion of the court 

F. P. Tuttle, and Charles Tuttle, for Appellant 

U. S. Webb, Attom^-General, and J. C. Daly, Deputy 
Attorney-General, for Respondent 

LOBIQAN, J. — ^The defendant was convicted of murder in 
the first degree and sentenced to death, and from the judg- 
ment and order denying his motion for a new trial appeals. 

The homicide consisted in the killing of one Frederick 
Nierhoff , at his home in Placer County, on the afternoon of 
June 11, 1902. The defendant was engaged with the consent 
of her father, the deceased, to be married to his daughter, — 
Agnes Nierhoff, — a young girl fourteen years of age, and the 
claim of the prosecution was, that the killing upon the part 
of defendant was prompted by revenge for having been or- 
dered off his premises, the day before, by the deceased. 

On behalf of the defendant it was insisted that the killing 
was done in necessary self-defense. 

In the briefs no point is made as to the sufficiency of the 
evidence to sustain the verdict, but it is insisted that the court 
erred in modifying certain instructions asked by the defend- 
ant ; that it misdirected the jury in certain other instructions 
given of its own motion, and complaint is made, also, of rul- 
ings of the court in the admission and rejection of evidence. 

Upon the instructions: — 

1. The defendant proffered many instructions on the plea 
of self-defense, premised generally with the statement that, 
"the defendant in this case admits the killing and excuses 
himself on the ground of self-defense." 

The court, after reading this preliminary statement to the 
jury, and immediately before giving the instructions ten- 
dered, said: **I am now about to give you a number of in- 
structions based upon this claim of the defendant that he 
acted in self-defense." 



Deo. 1903.] Pbofui i;. Glotbk. 237 

It is insisted that the use of the word ^'daim" was pre- 
judicial to the defendant 

There is no substantial merit in this point. Nor is the use 
of the word even open to criticism. Used either colloquially 
or definitely, it means the assertion of a right, and in the con- 
tezty where found, it refers to the assertion by the defendant 
that the killing was excusable because committed by him in 
the exercise of the right of self-defense. Whether in instruct- 
ing a jury upon this asserted right invoked by a defendant, 
the court uses the terms, '4t is insisted," ''it is contended," 
or ''it is claimed" on the part of defendant, that the killing 
was in necessary self-defense, the terms have the same 
legal equivalent, and mean that, while conceding the killing, 
yet the defendant asserts that he had a right to slay the de- 
ceased in necessary self-defense. 

In the case of People v. lams, 57 Cal. 118, it will be ob- 
served, in that part of the instractions which was given on 
this plea of self-defense, the lower court used the term 
"claim" as it was employed in the instruction complained of 
in the case at bar. 

That portion of the instruction in the lams case, in which 
this word "claim" is found has, at least since that case was 
decided, been almost universally given in its entirety, as an 
instruction in homicide cases, where the plea of self-defense 
has been interposed, and notwithstanding the successive ap- 
peals to this court in such cases, our attention is not called to 
any case in this court in which the correctness of its use has 
even been questioned. 

In the limited criticism which counsel devotes to the in- 
struction, he neither advances good reasons against the use 
of the term employed, nor suggests, or indicates, any language 
which in his judgment, would be more appropriate, or less 
objectionable, nor has he referred us to any authority, in the 
wide range of criminal law, where a similar instruction has 
either been censured or disapproved. 

2. The next ground of complaint arises from the modifica- 
tion by the court of two instructions requested by the de- 
fendant, on the law of self-defense. Only one of these need 
be referred to at length, in order to illustrate the point com- 
mon to both. The court instructed the jury: "A person may 



238 Pboplb v. Gloves. [141 CaL 

repel force by force in defense of person, property, or life, 
against one who manifestly intends or endeavors, by violence 
or surprise, to commit a known misdemeanor or felony, or 
either, or to do great bodily injury to his person, and the 
danger which would justify the defendant in the act charged 
against him may be either real or apparent, and the jury are 
not to consider whether the defendant was in actual peril of 
his life or property, but only whether the indications were 
uuch as to induce a reasonable man to believe that he was in 
such peril of person or property. And if he so believed 
reasonably [and had sufScient cause so to believe], and com- 
mitted the act complained of under such belief, even though 
it should appear that the deceased was not armed, you should 
acquit the defendant** ITie modification complained of in 
this, and the other instruction referred to, consisted in insert- 
ing therein the words, '*and had suflScient cause so to be- 
lieve," and giving them as so modified. The modification 
was proper, and the instructions as modified clearly express 
the law. Counsel claim that the instructions as modified 
lacked precision and clearness, and were confusing, but do 
not point out in what particular they are open to these ob- 
jections, and we are unable to discover them. 

The instructions as given informed the jury, that it was not 
enough that there should exist in the mind of the defendant 
a belief that he was in actual peril, but that the indications 
and circumstances as they presented themselves when he acted 
upon them, must have been such as to have furnished sufficient 
cause for such belief, and that the test to be applied by the 
jury, in determining whether these indications of peril were 
such as to furnish sufScient cause for the belief, was not 
whether defendant so believed therefrom, but whether a 
reasonable man, placed in the situation of the defendant, 
would have been justified from such appearances in so be- 
lieving. 

The court doubtless considered, and there was ample room 
for it, that the language in the proffered instruction, "and if 
he so believed reasonably," was susceptible of being con- 
strued by the jury to mean, that the actual belief of the de- 
fendant from the appearances of peril, as he viewed them, 
should exclusively govern their determination of whether he 
acted in self-defense or not, and for the purpose of obviatinjf 



Dee. 1903.] People v. Glover. 239 

any miseoneeption upon that point, inserting the words, ''and 
had sufficient cause so to believe." It was the duty of the 
court to so formulate the instruction as to obviate any danger 
of the law being misunderstood, and as clearly as x>ossible in- 
form the jury that, in order to justify the defendant under 
his plea of self-defense, it must appear not only that defend- 
ant actually believed himself in deadly peril, but that as a 
reasonable man he had sufficient grounds for his belief, and 
as so modified the court correctly declared the law. 

A person may have a lively apprehension that he is in 
imminent danger, and believe that his apprehension is based 
on sufficient cause and supported by reasonable grounds; 
that such apprehension is reasonable and warranted from ap- 
pearances as they present themselves to him. If, however, 
he acts on these appearances, he does so at his peril, because 
the law leaves it to no man to be the exclusive judge of the 
reasonableness of the appearances upon which he acts, but 
prescribes a standard of its own, which is, not only did the 
person acting on the appearances himself believe that he was 
in deadly peril, but would a reasonable man, situated as the 
defendant was, seeing what he saw, and knowing what he 
knew, be justified in believing himself in danger. 

Recognizing the error into which the jury might fall, and 
with the correct rule of law in view, the court properly modi- 
fied the instruction. 

It is insisted that the court erred in giving instructions 
numbers 24, 25, and 26. It is not insisted that they declare 
incorrect principles of law, but it is claimed that the first two 
are too broad, and that there was no evidence in the case to 
justify the last. 

Instruction number 24 is a concise statement of the lan- 
guage of the Penal Code (sec. 197, subd. 3), and specifies the 
conditions under which the right of self-defense can be in- 
voked. It is invariably given where the right of self-defense 
is asserted. Instruction number 25 is an excerpt from the 
language of the court in People v. Hecker, 109 Cal. 462, and 
is also applicable under the plea of self-defense. 

Instruction number 26 is also an excerpt from the same 
case, and under it the jury were informed that the plea of 
self-defense is not available where a person seeks a quarrel^ 



240 PlBOPLB V. GiiOVBR. [141 CaL 

with the design of creating a real, or apparent, neoesBity for 
killing. This last instmction, defendant insists, should not 
have been given, because he claims there was no evidence 
in the case upon which to predicate it. Even so, this of itself 
would not constitute error. As a general proposition of law, 
the doctrine announced in the instruction is correct. The 
most that can be said against it is, that it embraces an abstract 
principle, not specially relevant to the facts in the case at 
bar, but given with other full and dear instructions upon the 
same branch, and which were applicable. If, in fact, there 
was DO evidence to which it applied, it could not be con- 
sidered by the jury. There was evidence, however, to which 
the pertinent instructions given on the same subject, and in 
the same general line, could be applied, and it must be as- 
sumed that the jury employed their deliberations in con- 
sidering the evidence under those principles which were ai>- 
plicable, rather than that th^ frittered away their time in 
considering abstract principles to which it was inapplicable. 

Nor are we prepared to say that there was no evidence to 
which the instruction could be addressed. There was evi- 
dence in the case tending to show that defendant had secreted 
himself in the house of deceased, with the expressed intention 
(undisclosed to the deceased) of killing him; that while de- 
ceased, and the brother of defendant, were conversing at the 
bam near the house, the defendant left the house, taking with 
him a rifle belonging to the deceased, which he had found 
therein; that he proceeded towards the deceased with the 
weapon held in position for action; that while no word was 
spoken by him as he approached, yet his appearance and 
actions were sufficient to call forth an exclamation from de- 
fendant's brother and the deceased, directed to him, "not to 
shoot"; that while he was approaching, according to his own 
story, and without his having uttered a word to deceased, or 
made any hostile demonstration, or intending to do so, the 
deceased rushed towards him, picking up a club on his way, 
and endeavored to take the rifle from him, and tried to strike 
him with the club, when, in self-defense, he fired the fatal 
shot. 

In the face of the evidence, it was the exclusive province 
of the jury to say, whether defendant's approach towards 
the deceased was with the innocent intention whidi he avowed^ 



Dee. 1903.] Fboflb v. Glovbb. 241 

or whether it was with a preeoBeeived intention to kill him, 
bat made under such cireamstances aa to invite an appear- 
anee of hostile attack, which defendant wonld subsequently 
disclaim, but upon which the deceased would presumably act, 
and endeavor to repel, with such weapon as chance might 
provide, yet, with the certainty on defendant's part that the 
deceased could, in the emergency, provide himself with no 
means which could meet his BUi>erior and effective weapon, 
deliberately provided for the purpose, or frustrate or foil 
his purpose to kill. 

Whenever an assault is brought upon a person by his own 
procurement, or under an appearance of hostility which he 
himself creates, with a view of having his adversary act upon 
it, and he so acts and is killed, the plea of self-defense under 
such circumstances is unavailing. 

Waiving all other considerations concerning this challenged 
instruction, it was, we think, properly given to the jury 
under the evidence referred to. 

4. The legal accuracy of instruction number 28 is ques- 
tioned. It reads: ^'A defendant who justifies under a claim 
of self-defense must himself have been without default before 
he can claim the full protection of the law. In such case, if 
you find from the evidence that the defendant was without 
fault, and while so without fault, was placed by the deceased 
under circumstances sufScient to excite the fears of a reason- 
able man that the deceased designed to commit a felony or 
some great bodily injury upon him, and as to afford grounds 
for a reasonable belief that there was imminent danger of the 
accomplishment of such design, he was justified in acting 
under such fears." 

Particular exception is taken to the use of the language, 
''must himself have been without default before he can claim 
the full protection of the law." This, in counsel's estima- 
tion, is also entirely too broad a statement of the principle it 
contains. No question is made, or can be made, of its legal 
accuracy. {People v. Westlake, 62 Cal. 307.) It is only the 
amplitude of this statement that is complained of. Counsel 
suggests that the jury, under it, might feel warranted in 
taking into consideration other acts of the defendant, aside 
GXLL OaL— 16 



242 People v. Glover. [141 Oal 

from the circumstances of the killing itself. The broadness 
of language which counsel complains of arises only when the 
particular sentence adverted to is cut out from the context 
and examined alone. This, however, is not the approved or 
proper way to examine instructions, or parts of instructions. 
It will not do to take isolated or excised sentences, or phrases, 
and so put them to the crucial test. Instructions, for the 
purpose of determining whether they correctly state the law 
or not, are to be considered in their entirety, and the language 
used in each is to be considered, not only with reference to the 
special instruction of which it is a part, but in connection 
with all the instructions, precedent and subsequent to it, and 
particularly with reference to all instructions bearing on the 
same main legal proposition of which it forms a part. Ex- 
amining the instruction complained of, under this rule, we 
find it immediately preceded by instructions concerning the 
conditions under which the right of self-defense may be as- 
serted — ^that he was not the first aggressor, or, if so, that he 
had endeavored to decline further struggle; that he had not 
Bouo:ht the quarrel with the design of forcing a deadly issue, 
or creating or inviting a real or apparent necessity for killing, 
which, if present to one without blame, would justify the 
homicide; — ^these were the conditions to which the *angua.?e 
complained of had reference, and to which the terms ** de- 
fault," and *' fault," as also used in the instruction, applied. 
This is obvious, too, when the terms are considered in rela- 
tion to the context of the special instructions where they are 
found ; they there apply to the circumstances and situation of 
the deceased and defendant at the time the killing occurred, 
and under which he asserts that he was justified in taking the 
life of deceased. Considered with reference to the preceding 
and subsequent instructions to which it applies, and also ^vith 
relation to the particular instruction of which it is a part, it is 
limited, pertinent, and applicable. So, even if the languajri 
of the instruction were open to the criticism that it states the 
principle too broadly, it appears so only when examined aside 
from the context in which it is found. 

5. Appellant insists that the court erred in instructing the 
jury that, ** whether the defendant does, or does not, act with 
malice aforethought is alwajrs to be inferred from the circum- 
gtances surrounding the case." 



Dec. 1903.] People v. Glover. 243 

Afl was said of the preyious instruction, this sentence is 
part of an instruction which, together with various other 
instructions given by the court, fully deals with the matter of 
malice aforel bought — ^the great criterion distinguishing mur- 
der from other killing. 

Standing alone, however, we perceive no ground for criti- 
cism. Malice may always be inferred from the circumstances 
in the case — ^the evidence presented and considered by the 
jury. If there are other additional legal rules for determin- 
ing it the defendant cannot complain because the jury were 
restricted to one of such rules. The restriction in this re- 
gard was favorable to him, and he has no reason to complain 
of it. 

Exception is taken to the language of some of the other 
instructions in the case, but, as they are not supported in 
the briefs by either argument or authority, — simply referred 
to, — we have not called particular attention to them. In 
view, however, of the gravity of the case, we have examined 
them and find them correct. 

The court, upon its own motion, fully and fairly instructed 
the jury upon all matters necessary for their consideration, 
and gave every instruction requested by the defendant — 
which constituted half of the instructions given — as pre- 
sented, with the single modification in the two instances com- 
plained of. As far as the instructions given in the case are 
concerned, taken as a whole, they are correct and fair, and 
defendant has no ground of complaint on their account. 

Certain errors of law are insisted on, and we will now con- 
sider them. 

6. Agnes Nierhoff, daughter of deceased, the girl to whom 
defendant was engaged, was a witness for the prosecution. 
She and defendant had been driving on the Sunday prior to 
the homicide. On redirect examination by the prosecution, 
over defendant's objection, she testified that, while out driv- 
ing, at defendant's suggestion that he wished to get his 
mother's picture and a horse-collar, they drove to the ranch 
of Oscar Glover, the brother of defendant. This ruling, if 
error, was harmless. The testimony had no bearing whatever 
on the case, and there is no pretense that at this time there 
was any ill-feeling between defendant and deceased. Aside 



244 Pboplb v. GiiOviBB. fl^^ CaL 

from this, the matter had been originally brought out in the 
cross-examination of the witness by defendant's counsel. 

7. This same witness — an eye-witness to the tragedy — upon 
the trial and on behalf of the prosecution, testified against 
the defendant; her testimony tended to show that the killing 
of her father by the defendant was unprovoked, deliberate, 
and premeditated. 

On cross-examination the counsel for defendant confronted 
her with a statement, made immediately after the homicide, 
contradictory of her statement against him on the trial, which 
previous statement, if true, was exculpatory of the defendant. 
She admitted on cross-examination that she made such state- 
ment. On redirect examination, over defendant's objection, 
the witness was permitted to testify that these prior state- 
ments were untrue. Counsel suggests that the prosecution 
should have been restricted to proving the untruth of the 
statement by competent and relevant testimony, and not by 
the sweeping statement of the witness. But the testimony 
of the witness was both competent and relevant on this point. 
She best of all knew which of her statements was true. She 
had giviizi the one and was confronted by the other; they 
were inconsistent, and she had a right to explain, under sec- 
tion 2052 of the Code of Civil Procedure, her former state- 
ments. If, in the explanation, she declared that her former 
statements were untrue, this certainly was an explanation, as 
far as it went, and no reasonable objection could be made to 
this method of explaining it. 

Counsel's objection, too, was that it was not cross-examina- 
tion, irrelevant, and immaterial. It was certainly proper 
redirect examination because the contradictory statement was 
brought out by counsel for defendant on cross-examination, 
and it is material and relevant in all trials to properly show 
the credibility, or want of credibility, of a witness, and this 
end is attained in some degree by the declaration of the wit- 
ness herself that she has made prior false or contradictory 
statements on the same subject. 

8. This same witness was asked on redirect examination 
why she had not told her father and one Dr. Dozier, who 
visited him on the premises, and with whom she conversed, 
of the presence of the defendant in the house, and of his de« 



Dec. 1903.] Pboplb v. Olovibb. 245 

clared intention of killing her father. The witness, over 
the objection of defendant, answered that daring all the time 
the defendant was watching her with gon in hand, and she 
was afraid if she said anything to either her father or Dr. 
Dossier, he would kill both herself and her father. The in- 
quiry was proper. The defendant on cross-examination had 
brought out the fact that she did not converse with the doctor 
when he came, or inform her father of the defendant's pres* 
enca As the natural inquiry would be, why did she not do 
so, she had a right to explain her conduct in this regard. 
The objection of defendant was, that her motive in not tell- 
ing her father, or the doctor, should not be a question for 
consideration by the jury. As motive is the mainspring of 
human action, when it is ascertained the jury can all the 
more readily determine whether given conduct was inspired 
by it or not. 

We have thus far adverted particularly to such assignments 
of error as we deem worthy of special mention. 

Several others are relied upon, but we do not think they 
call for any extended consideration. The claim that there 
vas not sufficient proof to warrant the admission of the dying 
declaration of deceased in evidence is not tenable. The proof 
is all one way, and conclusive on the point, that it was made 
by the deceased in the full belief of impending death. Nor 
can any exception be taken to the statement by the deceased 
in his dictated dying declaration that, when defendant ap- 
proached from the house, deceased and defendant's brother 
Oscar were talking about a horse-collar. The testimony of 
all parties shows this to have been the fact, and besides, as 
a fact and circumstance immediately attending the homicide, 
it was part of the res gestae. There was no prejudicial error 
in permitting the prosecution to ask the witness Oscar Olover 
his weight. Even conceding, as defendant contends, that it 
was for the purpose of proving that he was a large man 
physically, and able to have intervened and stopped the kill- 
ing of deceased, yet this was all apparent to the jury without 
inquiry. They saw the witness, and could judge for them- 
selves of his physical proportions. He did not intervene be- 
cause, he testified in effect, that he did not think there was 
going to be any trouble until it was all over. It was not error 
for the court to refuse to allow the witness Charles Olover to 



246 Peoplb v. OiiOVEB. [141 CaL 

testify as to any statement made by the witness Agnes Nier- 
hoff to him concerning the homicide. If it was the same as 
she made on the stand, it was inadmissible as hearsay. If 
contradictory, it was in the nature of impeachment, and her 
attention should have been first called to it while on the 
stand, pursuant to section 2050 of the Code of Civil Proce- 
dure. In sustaining the objection, the court offered to allow 
the defense to recall the witness Agnes, and lay the proper 
foundation for the introduction of the testimony of Charles, 
but the defense declined to avail itself of the offer. This 
offer of the court gave the defendant all he was entitled 
to; having rejected the benefit of it he must abide by the 
rejection. 

This embraces all the objections which are made to the 
rulings of the court, and, in our judgment, none of them are 
well taken. 

While counsel for defendant in their briefs disclaim any 
intention of questioning the sufficiency of the evidence to 
warrant the guilt of the accused, they contend that it is not 
sufficient to warrant the infliction of the death penalty, and 
in this regard it is insisted that the jury, actuated by pre- 
judice, rendered a verdict fixing a higher degree of crime 
than the facts, susceptible of belief, justified. We find no 
justification in the record for this claim of counsel. There is 
nothing in the record tending to show that the jury were in 
any respect actuated by prejudice against the defendant. We 
cannot invade the province of the jury and substitute our 
judgment for theirs, as to the sufficiency of their finding on 
controverted facts. There may, it is true, arise an excep- 
tional case, where the testimony in behalf of the prosecution 
is so improbable and incredible that the court, convinced of 
its falsity or absolute insufficiency to warrant a verdict of 
guilty, would deal with it as a matter of law. This, however, 
must be an extreme case, and such is far from being suggested 
by the record before us. There was evidence on the part 
of the prosecution which, if believed by the jury, warranted 
them in finding the defendant guilty of murder in the first 
degree. Their verdict shows them to have believed it, and 
as the law leaves it to the sound and discriminating judgment 
of the jury what penalty they shall award for that degree of 



Dec. 1903.] Pratt v. Pratt. 247 

crime, we cannot interfere with the exercise of that judg- 
ment, even where the penalty is death. 

Finding no error in the record, the judgment and order 
appealed from are aflBrmed. 

McParland, J., Angellotti, J., Shaw, J., Van Dyke, J., 
Henshaw, J., and Beatty, C. J., concurred. 



[L. A. No. 1105. Department Two.— December 5, 1903.] 

LOLA A. PRATT, Respondent, v. CHARLES PRATT et aL, 

Appellants. 

Nxw Trial — Irbboula&itt or (}ourt — ^AirmAviT— Beoobd upon Apfkal 
— Peesumption. — Where the record upon appeal shows no objection 
to an affidavit on motion for a new trial as to irregularity in the 
proceedings of the court by which the defendant? weie pri'veuted 
from having a fair trial, and shows no objection presented to the 
affidavit in the court below, it must be presumed upon appeal that 
the affidavit was received and considered bj the court without ob- 
jection. 

Id. — iNTEaauPTioN op Testiiiony — Compelling Withdrawal op Wit- 
ness — Threatened Prejudgment op Dependant's Testimony — 
Error op Law — Irregularity. — Where the judge trying the cause 
interrupted counsel for the defendant, while examining the daughter 
of plaintiff and defendant as a witness for the defendant, who wan 
giving competent testimony, and did in an irregular way control 
the conduct of defendant's case, and virtually threatened to pre- 
judge the testimony of the defendant as a witness intending to tes- 
tify in his own behalf, unless the daughter was withdrawn as a 
witness against her mother, which threat led to such withdrawal, 
such action of the court, conceding that it was an error of Jaw, was 
prejudicial irregularity, preventing a fair trial to the defendant, 
which was ground for a new trial, and for reversal of an order deny- 
ing it. 

APPEAL from an order of the Superior Court of Los 
Angeles County denying a new trial. M. T. Allen, Judge. 

The facts are stated in the opinion. 



248 Pratt t;. Pratt. [141 CaL 

S. A. W. Carver, and A. W. Hntton, for Appellants. 

The action and expressions of the court, as shown by the 
affidavit, were an irregularity entitling appellants to a n^w 
trial. (People v. WiUiams, 57 Cal. 110; McMinn v. WheUm, 
27 Cal. 319 ; Mahaney v. San Francisco etc. Ry. Co., 110 CaL 
471 ; McDuff V. Detroit etc. Co., 84 Mich. 1 ;^ Savannah etc 
By. Co. ▼. Hardin, 110 Ga. 433; Lord v. Lord, 3 N. T. Supp. 
667.) 

Scarborough & Bowen, for Resx)ondent 

The affidavit does not show an irregularity entitling de- 
fendants to a new trial (11 Am. & Eng. Ency. of Law, 
843; Hayne on New Trial, sees. 108, 265, 281, 285; Code Civ. 
Proc., sec. 475; Coonan v. Loewenthal, 129 Cal. 197; Duffy 
V. Duffy, 104 Cal. 602; Edwards v. Wagner, 121 Cal. 376; 
Pereira v. City Savings Bank, 128 Cal. 45.) 

GRAY, C. — The above-named plaintiff and defendant are 
wife and husband. In the action the plaintiff sought an 
accounting from her husband in regard to his management 
and disposition of her separate property derived from the 
estate of her mother, and which she had confided to the con- 
trol of her said husband on its coming into her hands. She 
also sought to have a certain note, mortgage, and deed, affect- 
ing a certain piece of her real estate, and executed by herself 
and her husband to her husband's father, decreed to be given 
up and canceled, because induced by the fraud and undue 
influence of her husband. Plaintiff had judgment, and de- 
fendants appeal therefrom and from an order denying them 
a new trial. 

The transcript on appeal contains the judgment-roll, a 
statement on motion for a new trial, embracing the evidence 
taken and proceedings had upon the trial, and a bill of ex- 
ceptions, duly settled and signed by the judge after denying 
the said motion, containing an affidavit used thereon for the 
purpose of establishing the first ground of said motion, which 
was ''irregularity in the proceedings of the court by which 
the said defendants were prevented from having a fair trial." 
This affidavit is uncontradicted, and it sets forth that the 



122 Am. 84. Bep. 673. 



Dec 1903.] Pratt v. Piultt. 249 



affiants were present at the trial on the tenth day of April, 
1900y and heard and saw all that transpired in court at the 
time the witness Florence D. Pratt was plficed upon the 
witness-stand; that previously the plaintiff testified on be- 
half of herself that there had never been any settlement 
made or accounting had between herself and her husband 
concerning the properties or funds derived from the estate 
of her mother; that her husband was still indebted to her 
in the sum of four to six thousand dollars, as the balance of 
the funds of her mother's estate still in his hands un- 
accounted for ; that her husband had admitted to her that he 
had received said funds for her; that after coming to Cali- 
fornia her husband bought and improved the Miltimore Tract 
property in her name and as her own property; that her 
husband had charge of renting said Miltimore Tract prop- 
erty, and collected and retained the rents therefrom, and 
attended to everything about it; that she never had or ob- 
tained any money on said property or otherwise from her 
own funds or property. 

That on said tenth day of April, 1900, the defendant 
called said Florence D. Pratt to the witness-stand to testify 
in said cause on behalf of the defendants; that said witness 
claimed to have personal knowledge of certain conversations 
heard by her between the plaintiff and defendant Charles 
Pratt, regarding their property matters, and particularly re- 
garding the Miltimore Tract property and the rents and 
profits therefrom and the use made of the same ; and that the 
defendants then desired to have said witness testify regard- 
ing said matters, and expected to prove by her that during all 
the years since she was of an age sufficient to understand 
and remember family affairs she had heard the property af- 
fairs and business matters of her mother and father and her 
grandmother's estate matters talked over between them 
on many occasions, and had never heard either her 
father or mother in any way mention the fact of there 
being any unsettled matter between them concerning the 
property or funds derived from her grandmother's estate, 
Anastasia L. Clark ; that during said period of time she saw 
and heard many money transactions between her said parents 
in which the mon^ accounts between them were purported 
and stated to be settled, but that in none of said instances 



250 Pbatt v. Pratt. [141 CaL 

was the matter of any balance of funds in her father's hands 
belonging to her mother ever mentioned between them; that 
of her personal knowledge, and from the statements made 
to her by her mother, she knew that the rents collected from 
the Miltimore Tract property were regularly turned over tu 
her mother, and were not retained or used by her father; 
that said witness thereupon took the stand and was properly 
sworn and attempted to testify regarding said matters, and 
that the following is the substance of what then and there 
occurred and of the statements made respectively by the par- 
ties, to wit: Florence D. Pratt, called on behalf of defendants, 
sworn and testified as follows: "I am the daughter of the 
parties here. I will be eighteen years old next August. I 
was living at home all the time that Dr. and Mrs. Pratt lived 
in Los Angeles prior to their separation. I have at different 
times heard the property matters of the doctor and my mother 
talked over between them, particularly the Miltimore Tract 
property, and the rents, profits, and use of it. I don *t know 
as I can give the date. It was at the time we were living on 
Jefferson Street. The Court. — Mr. Carver, there has been 
no testimony offered as to the amount of those rents and 
who collected them. Mr. Carver. — ^We wish to offer this 
testimony as against the statements of plaintiff to the effect 
that the defendant always got the rents. She says she didn't 
get them. Our answer is that defendant did get them, and 
paid them over to plaintiff, and that is what we wish to 
prove. The Court. — Can't you prove it by somebody else 
than the daughter t I don't know anything more revolting 
than to have a child put on the witness-stand to dispute a 
parent, father or mother. . . . You can use your own choice. 
1 just simply say to you that there is no depth of infamy to 
which people can sink more than to put their children on 
the stand to testify against father or mother. I don't know 
anything that would condemn your client in my eyes so com- 
pletely as to put that girl on the stand to testify against the 
mother. You would have to bolster everything he (defend- 
ant) said to make me believe anything after he did that 
I have very pronounced views on it. It is shocking when 
a child is offered on the witness-stand to testify to anything 
that a mother has said as true or untrue. Mr, Carver. — The 
defendants except to the statement and ruling of the court. 
Suppose that the daughter had been on the stand, and the 



Dec. 1903.] Pratt v. Pratt. 251 

mother should then take the stand and testify against the 
daughter. It doesn 't seem to me that it makes any difference 
which one is on the stand first. The Court. — ^Now, you have 
the whole field ; go on. You have the liberty to put this girl 
on and have her testimony. Ask her this question if you care 
to. I simply want you to understand that it opens the door 
to prejudice, which every court must have that has a family. 
Thereupon the defendants, by reason of the foregoing ex- 
pressed views and prejudice of the court, were compelled to 
and did withdraw said witness from the stand.'' 

The affidavit was subscribed and sworn to by the defendant 
Charles Pratt, his attorney S. A. W. Carver, and by one 
C. W. Sexton, and was filed, read, and considered on the 
motion for a new trial. No other affidavits were read upon 
the hearing of the motion. The bill of exceptions fails to 
show, nor does it appear otherwise, that any objection was 
made to this affidavit in the court below. We must therefore 
presume that it was so received and considered by the court 
without objection. It is objected here, however, on the part 
of respondent, that the action of the court in the respect 
disclosed by the affidavit was not an irregularity, but, if any- 
thing, a mere error of law, not to be presented on affidavits. 
(Code Civ. Proc, sec. 658.) It is perhajw not necessary 
to determine whether the conduct of the judge amounted to 
an error of law or not. It may be conceded to have been an 
error of law, and yet, possessing all the aspects of an irregu- 
larity, as it does, it was not amiss to treat it as the ground for 
a new trial referred to in subdivision 1 of section 657 of the 
Code of Civil Procedure. (Hayne on New Trial, sec. 29.) 
As ordinarily understood an error of law is committed when 
the court, either upon motion of one of the parties or upon its 
own motion, makes some erroneous order or ruling on some 
question of law which is properly before it and within its 
jurisdiction to make. Here, however, the court was not called 
upon to rule or make an order upon any question of law, but 
the judge interrupted counsel and undertook to and did in 
d very irregular way control the conduct of the case on the 
side of defendant. The trial judge virtually threatened to 
X>rejudge the testimony of the defendant as a witness, and 
intimated that unless the daughter was withdrawn as a wit- 
ness he would regard the fact of her having contradicted the 



252 Pb^tt i;. Pratt. [141 CaL 

mother in the father's interest as a matter seriously dis- 
crediting the latter's testimony. The judge certainly hail 
no right thus in advance of hearing the testimony of the 
father to make up his mind as to the effect that previous 
testimony ought to have on the weight of his testimony. The 
testimony of the daughter as offered was competent and 
proper, and therefore the judge had no right to permit it to 
arouse in his mind a prejudice against the father. Above 
ally he had no right by an expression of such prejudice and 
its threatened results to drive the party to withdraw testi- 
mony against which no legal objection existed. The action of 
the judge was an irregularity. That it was extremely pre- 
judicial to the appellant is made to appear very forcibly when 
we examine the findings and learn that they are against 
appellant in every particular to which the proposed testi- 
mony of the daughter was directed. There are then two 
good reasons why the objection of respondent that the matter 
urged could not properly be presented by affidavit should be 
overruled: 1. No such objection was made at the hearing of 
the motion; and 2. The objection would not have been valid if 
it had been made. The trial of a case shoidd not only be 
fair in fact, but it should also appear to be fair. And where 
the contrary appears, it shocks the judicial instinct to allow 
the judgment to stand. 

We find it unnecessary to determine on this appeal whether 
the statement on motion for new trial was settled in accord- 
ance with the provisions of the code or not Nor will it be 
necessary to discuss the many questions arising on said state- 
ment. 

We advise that the judgment and order appealed from be 
reversed. 

Chipman, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment and order appealed from are reversed. 

McFarland, J., Iiorigan, J., Angellotti, J. 

Hearing in Bank denied. 



Dee. 1903.] First NAnoirAL Bank v. Bowrbs. 25S 



[L. A. No. 1127. Department Two. — ^Deeember 5, 1903.] 

FIRST NATIONAL BANK OF RBDLANDS, Appellant, 
▼. GERTRUDE S. BOWERS, BeBpondent. 

GVARANTT TO BaNX— DRAIT POB ObANQXS — "BiLLfi OF LADING AT- 

tachsd" — 'EmmscE or Facts and CmcnusTANCEs — Question pob 
JUBT. — ^A guAranty to a bank of ninety per eent of the face yalue 
of all drafts for oranges ''with bills of lading attached," drawn 
hj a froit eompany in favor of the bank during a specified orange 
season, is not suiBeiently elear and obvious as to the meaning of 
the phrase "with bills of lading attached" to justify the court in 
a eonstruction of it as matter of law, and in refusing to permit 
the jury, under the evidence disclosing the facts and circumstances 
surrounding its ezeeution, to determine what the parties intended 
by those words, the meaning of which was disputed. Such deter- 
mination was the province of the jury, and not of the court. 
Id. — OoNSTBUonoN or Guaeanths — ^Explanation — Intsntion or Pab* 
TDES. — Contracts of guaranty, like all other contracts, should receive 
a fair and liberal interpretation, according to the true import of 
their language, and may be explained by reference to the circum- 
stances under which they were made and the matter to which they 
relate, the main object being to ascertain and effectuate the inten- 
tion of the parties. 

APPEAL from a judgment of the Superior Court of San 
Bernardino County and from an order denying a new trial 
Frank F. Oster, Judge. 

The facts are stated in the opinion of the court 

Otis & Oregg, and J. S. Chapman, for Appellant 

Edward R. Annable, and Hunsaker & Britt, for Respond- 
ent 

LORIGAN, J. — ^Plaintiff brought this action to recover 
from the defendant $12,529.92 upon a contract of guaranty 
executed by her in its favor. 

The trial was had before a jury, and at the close of the 
evidence the court, over plaintiff's objection, instructed the 
jury to return a verdict in favor of defendant, which was 
done, and judgment entered thereon. 



254 FiBST National Bank t;. Bowibbs. [141 GaL 

Plaintiff moved for a new trial, which waa denied, and 
from the order denying said motion and from (he judgment 
it appeals. 

The contract of guaranty upon which the action is brought 
is aa follows : — 

''Redlands, Cal., Dec. 1, 1897. 
'*To the First National Bank of Redlands, CaL 

''I hereby guarantee to said bank ninety per cent (90) of 
the face of all drafts for oranges (with B-L attached), drawn 
by the Haight IfYuit Co., in favor of said First National 
Bank during the orange season of 1897 and '98. 

"Gertrude S. Bowers." 

It was admitted upon the trial that the letters ''B-L" 
were intended by the parties to mean "bill of lading." 

It appears from the evidence, that the Haight Fruit Gom> 
pany, after the execution of such contract of guaranty by 
defendant, and its delivery to plaintiff, made at different 
times drafts in favor of plaintiff, upon the respective parties 
to whom in the various cities of the United States consign- 
ments of oranges were shipped; that each of said drafts had 
attached to it the bill of lading of the particular consign- 
ment for which it was drawn on the consignee, and all said 
drafts were drawn on a printed form used by the Haight 
Fruit Company, which contained, among other things, the 
following: "Instructions to the Bank. — This collection covem 
goods now in your city. Please present for acceptance with* 
out delay, but hold until goods arrive, if necessary. Do not 
return documents unless instructed from California to do 
so. Permit inspection on track. Deliver bill lading or order 
on acceptance of draft. If not accepted immediately on 
arrival of goods, wire direct to Haight Fruit Company, Reil- 
lands, California, and follow their instructions." That all of 
said bills of lading, attached to said drafts, were either issued 
by the transportation companies directly to the consignees, or 
to the Haight Fruit Company, and specially indorsed by it 
to said consignees; that none of them were either issued, or 
indorsed to, said bank ; that, upon the delivery of said drafts 
with such bills of lading attached, the plaintiff advanced to 
the Haight Fruit Company, on the faith of said guaranty, 
ninety per cent of their face value; that a large proportion 



Dec. 1903.] PiBST National Bank v. Bowers. 255 

of said drafts accompanied by bills of lading, were drawn 
by the Haight Fruit Company on its own agents in eastern 
cities, for the purpose of enabling them to make sale of con- 
signments of oranges described therein, and others were on 
particular purchasers in different eastern cities. That each 
of said drafts, with bill of lading attached, was forwarded 
by the plaintiff to its business correspondent in the city 
where the drawee and consignee resided for presentment, ac- 
ceptance, and payment. 

It further appears from the evidence that the Haight Fruit 
Company had a contract with the railroad companies over 
whose lines its consignments were sent, whereby the fruit 
company, could, at any time, have said consignments while en 
route diverted from one point to another, or from one con- 
signee to another, or delivered to its agents vrithout the pro- 
duction or surrender of the bills of lading attached to the 
draft, and that it did so whenever it chose; that all of said 
drafts sued on were returned to plaintiff by its eastern bank 
correspondents unpaid, accompanied in all but a few instan- 
ces by the original bills of lading which were sent ; that none 
of said drafts sued on were presented for pa3rment to the 
drawees therein; that said plaintiff during said season ad- 
vanced on said drafts $130,051.52, all of which was collected 
from the drawees named therein, save the amounts sued on. 

There was also evidence introduced on the part of the 
plaintiff, tending to prove that the Haight Fruit Company 
for many years theretofore had been, and at the time of the 
faiaranty in question was, largely engaged in Southern Cali- 
fornia, at Bedlands and its vicinity, in purchasing and ship- 
ping oranges to the eastern market 

It owned no orange-groves of its own, but in common 
with others engaged in the same enterprise the company pur- 
chased entire, or partial, crops of oranges from the owners 
thereof early in the season, while the fruit was on the trees, 
and long before it had ripened, so as to be ready, when the 
shipping period arrived, to successfully compete with those 
engaged in the same business. 

That the company was not financially able, on account of 
the extensive purchases necessary to be made, to command 
from its own resources sufficient money to pay for these crops, 
as payments by the owners were required, which were in 



256 FiBST National Bank i;. Bowebs. [141 CaL 

advance when the contract of purchase was made, and usnally 
full payment when the fruit was deliyered, and was, there- 
fore, compelled to make arrangements so that the capital 
necessary therefor during the shipping season would be sup- 
plied by a bank under some security furnished by a third 
party, and it was with this end in view that defendant's 
guaranty was secured, though the matter of its procurement 
will be referred to more particularly later on. 

That the general conduct of the business during the ship- 
ping season, both in previous years and during the season 
for which the guaranty in question was given, required that 
the company should have, and it did have, agents employed 
in several of the principal eastern cities, whose duty it was 
to obtain purchasers and markets for, and to attend to the 
interests of the company in, the sale of fruit consigned there. 
These agents would notify the company that they had made 
the sale to different persons, or firms, of such a number of 
boxes or carloads of oranges, and thereupon the company 
would consign to these agents, for delivery to such persons^ 
the required shipments, transmitting at the same time a 
draft for the purchase price, with bill of lading attached. 
All shipments were made subject to inspection by the con- 
signees. On the arrival of the goods, in some instances, these 
consignees would refuse to accept them; a refusal which 
might, or might not, be based on sufficient grounds, — perhajM 
the goods were damaged, or a depressed market might make 
it to the interest of the consignee to refuse acceptance. Be 
the reason what it might, the consignee thus refusing to 
accept, the agent of the company at the place of consignment 
would have to take immediate possession of the fruit and sell 
it to the best advantage. Under such circumstances, as the 
consignments were not accepted by the consignees, the drafts 
against them would not be accepted, and hence not presented. 

In other instances orange crops, which the company luui 
purchased, would be ripe, and the owners insistent that they 
should be gathered and paid for. At this time the eastern 
market might be depressed and the agents of the company 
unable to make sales. Under these circumstances, as the fruit 
could be kept only a limited time after being picked, the cars 
would be loaded with it, and billed to some agent in a distant 
city — for illustration, say Boston. While being gotten ready 



Dec. 1903.] FiBffr National Bank v. Bowebs. 257 

for shipment, and after the shipment was started on its way 
to the Boston agents, the company would by telegraph notify 
snch agents, and its other agents in different cities, of the 
transmission of such unsold consignment, and direct them to 
look out while the consignment was in transit for a market 
therefor, because, if the consignment was permitted to reach 
Boston a sale of it might not be advantageously effected. In 
response to these notices, it frequently happened that an agent 
somewhere else, — say at Chicago, — or several agents along 
the route, would find purchasers for the whole or separate 
carloads of the oranges. To meet these contingencies, under 
its arrangement with the railroad company, the consignment 
directed to Boston would be diverted from its destination to 
such point where these other agents had procured sales for it 
If, for example, this consignment originally destined for 
Boston should be diverted to Chicago, it would be received 
and disposed of in that market without either draft or bill 
of lading, as both these would have gone on to Boston where 
the consignment was originally billed, but which it never 
reached. 

In other cases, consignments would be made to particular 
eastern purchasers, with drafts against them for the purchase 
prices, and accompanying bills of lading. Often these par- 
ties would refuse to accept the consignment. Under these 
i^ircumstances the drafts would not be presented against the 
consignees. In such cases the consignments would be taken 
by the agents of the company in the locality, and sold out at 
r<%tail to the best advantage, and perhaps to a dozen different 
persons. 

In some instances consignments arrived at their destina- 
tion, and on inspection were found so damaged in trans- 
portation as to be of little or any value, and consequently 
refused. 

In some of the instances referred to it would be useless to 
present the drafts for either payment or acceptance, and in 
others they could not be, because the consignments had been 
diverted to points other than the original destination to which 
the drafts had proceeded. 

In all instances, however, where sales were made, whether 
of consignments diverted from the destinations specified In 
CXTiT. OaL— 17 



258 First National Bank v. Bowers [141 CaL 

the bill of lading and sold by the agents of the company in 
other cities, or made by agents after the particular consignees 
had refused to receive the shipments, or accept, or pay the 
drafts therefor, the proceeds were turned in to the credit of 
the drafts drawn, to the extent that anything was realized. 

The business of the company was not only conducted in 
this manner during the seasons previous, but similar methods 
were employed and like transactions arose during the season 
to which the guaranty of defendant applied. The evidence 
not only showed these facts, but there was likewise evidence 
tending to show that the defendant was fully informed of the 
way in which the business was theretofore conducted, under- 
stood all about it, and that it was intended to be transacted 
under her guaranty, in the same manner. 

This guaranty was given by her in furtherance of the in- 
terests of her nephew, who desired to purchase an interest in 
the fruit company. To this end she advanced him the money 
to purchase stock in the Haight Fruit Ompany, and at the 
same time agreed to advance that company money from time 
to time as required in the transaction of its business. This 
she did for some time personally, but shortly after the ship- 
ping season opened an arrangement was made by her, with 
the officers of the plaintiff bank, which resulted in the ezeeu- 
tion and delivery of the contract of guaranty sued on. There 
was additional evidence upon all these matters given in the 
case, but we have set forth this much as sufficient under which 
to discuss the principles of law which we deem applicable. 
The main and important question on this appeal, and the only 
one which it will be necessary to consider, is the correctness 
of the action of the court in instructing the jury, in the face 
of the recited and similar evidence, to return a vardict for the 
defendant. The giving of this instruction is the principai 
ground for reversal urged by appellant. 

We are not clearly advised from the record upon what 
ground the lower court based this instruction to the jury. 
It must have done so, however, by construing th^ contract 
of guaranty as meaning in the use of the term **bill of lading 
attached," that such bills of lading as accompanied the 
drafts should have been transferred to the bank by the Haight 
Company, so as to operate as a pledge of the oranges against 
which such drafts were drawn, and as security for the benefit 



Dee. 1903.] Fibst National Bank t;. Bowsbs. 259 

of the guarantor, and by such transfer to plaee the con- 
fligmnent under the absolute control of the bank and beyond 
the control of the drawer — ^the Haight Fruit Company ; that 
this was a condition precedent to her liability under the 
guaranty, and not having been complied with, such liability 
never attached; or, the court may have based its instruction 
on the fact that the drafts sued on were never presented to 
the drawees for acceptance, and hence if any liability ever 
did attach, this failure on the part of the plaintiff to so pre- 
sent them relieved and exonerated her from responsibility. 
The action of the court on the record cannot be defended on 
any other grounds, and we have no doubt that the court based 
its instruction on the first, because this is the proposition to 
which the briefs of counsel on both sides are principally ad- 
dressed. 

Respondent's contention in the court below was, and the 
view which the lower court took of the contract of guaranty, 
by refusing to permit the jury to take into consideration the 
facts and circumstances attending and surrounding its mak- 
ing, as disclosed by the evidence, for the purpose of determin- 
ing the meaning of the term ''bill of lading attached," as 
used in the contract, must have been, that the language of 
the contract on this subject was plain and obvious, and not 
open to any examination or investigation by the jury 
under a consideration of such facts and circumstances; that 
by its terms the contract of guaranty plainly provided that 
the bank should with all drafts discounted by it, have taken 
as security therefor a valid pledge of each consignment of 
oranges, against which the draft was drawn, by having the 
bill of lading therefor either issued, or transferred to itself, 
and retain exclusive control over the consignment, and that, 
as not only were none of these bills of lading drawn in favor 
of, or assigned to the plaintiff, but it cashed drafts which, 
on their face, all expressly reserved to the company the con- 
trol of the consignments represented by such biUs of lading, 
the defendant was not liable. We cannot, however, agree 
with the lower court in this view. We do not perceive that 
the terms of this guaranty were so plain, or the meaning so 
certain, as to warrant the court in itself construing the in- 
strument, and refusing to permit the juiy, under the evidence 
disclosing the facts and circumstances surrounding its exe- 



260 First National Bank v. Bowsbs. [141 CaL 

cution, to determine what the parties intended bj its dis- 
jmted terms. 

To sustain the view taken by the court, it was certainly 
necessary to import into the lang^iage which was used by the 
parties, terms which were plainly not expressed therein, and 
which could only exist as a matter of construction. 

The court construed the contract upon its face as a plain, 
clear guaranty, which was not affected by any of the facts 
and circumstances attending its execution; either the situa- 
tion of the parties, or the object to be attained, or subject to 
be construed under any of the aids which the law affords for 
the interpretation of contracts. 

There is nothing expressly said in the contract of guarant3' 
about the plaintiff taking bills of lading as a pledge, or re- 
taining control over them as security for the drafts cashed. 
There is nothing in the terms used wholly inconsistent with 
permitting the Haight Fruit Company to control the dispo- 
sition of the consignments represented by the bills of lading. 
If there is, it is only by construction. On the face of the 
guaranty there is nothing said as to who shall have the control 
of the oranges. Nor is it obviously apparent therefrom, 
that the requirement that biUs of lading should be attacheil 
to the drafts, was for any other purpose than to serve as a 
guide to the plaintiff in determining whether the drafts pre- 
sented by the company should be cashed by it, or not. No 
drafts could be cashed except for oranges — ^no other ship- 
ments of fruit — and the bill of lading would furnish, and 
Diight possibly be intended to furnish, the best information, 
that the drafts were for consignments of oranges represented 
thereby, as the guaranty contemplated they should be. It 
was a question, whether the bank was required under the con- 
tract, to do any more than to see that there was a bill of lading 
accompanying each draft, professing on its face in the ordi- 
nary form of such documents to represent a consignment of 
oranges. It was also a question, whether it was intended 
that the turning over of these bills of lading with the drafts 
was for any other purpose than that the plaintiff through 
its correspondents might receive the proceeds of the sale of 
the fruit made by the company in payment of the diaooonts 



Dec. 1903.] FiBST National Bank v. Bowebs. 261 

made on the drafts therefor. On the other hand, for the 
court to construe the phrase ''bills of lading attached" to 
mean that such bills were required to be made out in favor 
cf , or indorsed to plaintiff, and held, retained, and dealt with 
as pledges securing the drafts, with all the responsibilities 
and liabilities to be assumed by the plaintiff under such con- 
dition, was to incorporate into the instrument, by construc- 
tion, more than it expressly contains, and to give it an effect 
which, on its face, it is not disclosed the parties contemplated. 
We do not say that this may not have been the intention, 
but it does not clearly or obviously follow from the language 
of the guaranty, and in the dispute between the parties as to 
its meaning, this could only be properly determined by a 
consideration of all the facts and circumstances surrounding 
its execution, and in the case at bar this was the province of 
the jury and not of the court 

That the defendant herself did not think that the con- 
struction placed by the court upon this contract was so ob- 
vious or apparent is disclosed by her answer, in which she 
sets forth that it was understood by the terms of said contract 
that a lien would be creatod against said oranges represented 
by said bills of lading. It was the determination of this ques- 
tion, as to what was the meaning of the term ''bill of lading 
attached," that the appellant insists should have been sub- 
ndtted to the jury under all the evidence, and in this we think 
appellant was right Contracts of guaranty are not affected 
by rules different from those employed in construing other 
contracts, but, like all other contracts, should receive a fair 
and liberal interpretation, according to the true import of 
their language, and may be explained by reference to the 
circumstances under which they are made and the matter to 
which they relate. (Civ. Code, sec. 1647.) "As guaranties 
are contracts of extensive use in the commercial world, upon 
the faith of which large credits and advances are made, care 
tfhould be taken to hold the party bound to the full extent of 
what appears to be his engagement Letters of guaranty are 
commercial instruments, generally drawn up by merchants, 
sometimes inartificial and often loose in their structure and 
form. They should not, therefore, be construed with nice 



262 FmsT National Bank i;. Bowebs. [141 CaL 

and technical care; but, according to the facts and circum- 
stances accompanying the transaction, holding in view as the 
main object to ascertain and effectuate the intentions of the 
parties." (2 Daniel on Negotiable Instruments, p. 791.) 
The rule is correctly stated in Mauran v. BtULus, 16 Pet 
533, where the court say: *'The questions in this ease 
aiise on the instructions of the court; and they very prop- 
erly, as we think, refer the jury to the facts and circumstances 
under which the guaranty was given. It is only by such 
reference that that instrument can be correctly understood 
and construed. In the construction of instruments, to ascer- 
tain the intention of the parties is the great object of the 
court; and this is especially the case in acting upon guaran- 
ties. ' ' In Thompson v. McKay, 41 Gal. 228, the court says : 
''The rule is well established that, in construing doubtful 
instruments, they must be interpreted in the light of the 
surrounding circumstances. After ascertaining the relation 
of the contracting parties to each other, and the subject-mat- 
ter of the contract, the court will, if possible, so construe the 
instrument, however inartificially drawn, as to give effect to 
the intention of the parties, provided it can be done without 
disregarding the language of the instrument, when all its 
parts are considered." To the same effect are Walsh v. Hill, 
38 Cal. 481 ; Laf argue v. Harrison, 70 Cal. 385 ;^ London etc 
Bank v. Parroii, 125 Cal. 472 ;2 McCasland v. O'Brien, 57 
Hi. App. 636 ; Wills v. Boss, 77 Ind. 1 ;* Crest v. Burlingame, 
62 Barb. 351; Bell v. Bruen, 1 How. 169; Lee v. Dick, 10 Pet 
482; Graham v. Farmers' etc. Bank, 116 Cal. 466. The pur- 
pose to be subserved by this rule is to place the court, or jury, 
in the position of the parties at the time the contract was 
made, and enable it to intelligently interpret the language 
used by them. Facts which tend to illustrate or explain the 
language used in the contract, and to place the court or jury 
as nearly as may be in the situation of the parties as they 
contracted, are always admissible when the meaning of the 
terms used is debatable. Under these principles the plaintiff 
had a right to have submitted to the jury the question of what 
was intended, understood, and meant by the parties in the 
use of the term ''bill of lading attached." It was for the 



159 Am. Bep. 416. t40 Am. Bep. 27d. 

s 73 Am. St. Bep. 64. 



Dec 1903.] First National Bank v. Bowbbs. 2r»3 

jury to determine whether it was intended by the use of this 
term, that all such bills of lading should be issued in favor of 
the bank, or transferred to it by the Haight Fruit Company, 
so as to operate as a pledge of the consignment of oranges, to 
be held as security for the benefit of defendant, to the extent 
of her liability on the accompanying draft; whether it was 
intended thereby to divest the fruit company of all control 
over these consignments, and to require the bank thereafter to 
retain absolute and exclusive control of them for all purposes ; 
not only to require payment of the drafts by the consignees, 
but upon failure to do so to employ agents or brokers at the 
point of destination to dispose of the consignments, or to take 
such other measures as the law requires concerning the dispo- 
sition of pledged property. 

Or, on the other hand, did the attending facts and circum- 
stances show that no pledge of the oranges or indorsement of 
the bills of lading to plaintiff as security for the drafts was 
contemplated or intended, and that it was the intention of 
all parties that the method of dealing, and the manner of con- 
ducting business, as theretofore done by the fruit company, 
and claimed to have been known by the defendant, including 
the control and disposition by said company of these consign- 
ments represented by the bills of lading, was to be continue^! 
under the guaranty. 

This was a matter for the consideration of the jury. It 
was for them to determine the extent and the meaning of the 
contract, as the facts and circumstances surrounding its exe- 
cution disclosed the intention of the parties. 

If the jury should find that it was intended that the busi- 
ness under the guaranty should be conducted as previously 
done, and that the control of these consignments should, as 
theretofore, remain with the fruit company, and that it 
should have the disposition of them as the exigencies and ne- 
cessities of the business should require, that no pledge or 
security by transfer of the bill of lading to the bank was 
contemplated, then there was no obligation imposed upon the 
plaintiff under the guaranty which it failed to perform, and 
the fact that the plaintiff failed to present the drafts sued ori 
to the drawees named therein was of no moment, because all 
these drafts were against consignments, either diverted by 
the company from the original consignees, or were against 



264 W, U. Tbl. Co. v. County op San Joaquin. [141 CaL 

consignments refused by the drawees, and taken possession 
of by the company's agents and sold, and under such circum- 
stances it would have been an idle and useless ceremony to 
have presented the drafts for payment, and plaintiff was not 
required to do so. 

Much argument is advanced on both sides why this con- 
tract should be construed under the view that each party 
takes of it. It is not our province to enter into any disciuir 
sion of that matter. 

These arguments will be properly addressed to the jury 
when the matter of the interpretation of the contract is sub- 
mitted to them under the evidence. What we now hold is, 
that the court should not have taken that matter from the 
jury, but, under proper instructions, have submitted it to 
them for their determination under all the evidence. 

The order denying a new trial is reversed and the cause 
remanded. 

McFarland, J., and Angellotti, J., concurred. 

Hearing in Bank denied. 



[Sae. No. 948. In Bank. — ^Deeember 8, 1903.] 

WESTERN UNION TELEGRAPH COMPANY, AppeUant, 
V. COUNTY OP SAN JOAQUIN, Respondent. 

Action k>b Taxes Pau) undeb Protest — ^Assessment ov Citt Fkam- 
CHisE — Federal Franchises — iNSurriciENT Gomplaint. — A com- 
plaint in an action to recover taxes paid under protest, which shows 
an assessment upon a franchise granted by a citj, and avers that 
plaintiff holds federal franchises which are non-taxable, and is an 
instrument of the federal government, and that the assessment was 
void, but does not aver that plaintiff did not receive a franchias 
granted hj such city, does not state a cause of aetiom 



Dec. 1903.] W. U. Tel. Co. v. County op San Joaquin. 265 



Id. — PowKB OF City. — ^It eanuot be held as matter of law that the city 
could not grant and that the plaintiff could not receive a franchise 
which is different from and in addition to the franchises granted 
to it by the federal goveroment. 

APPEAL from a judgment of the Superior Court of San 
Joaquin County. Joseph H. Budd, Judge. 

The facts are stated in the opinion of the court 

George H. Pearons, R. B. Carpenter, and Arthur L. Le- 
vinsky, for Appellant. 

A. H. Ashley, for Respondent 

MoPARLAND, J. — This is an appeal by plaintiff from a 
judgment in favor of defendant. 

The action is brought to recover $29.50 paid under protest 
for taxes alleged to have been unlawfully assessed against 
appellant. A demurrer to the complaint was sustained, and, 
appellant declining to amend, judgment went for respondent. 

The complaint sets forth the history and character of the 
appellant corporation, its lines of telegraph through the state 
and San Joaquin County, etc., — ^matters of general knowledge. 
It is particularly averred that by an act of Congress passed 
July 24, 1866, and appellant's acceptance of the privileges 
and duties contained in and imposed by said act, it became 
an instrument of the federal government, and acquired cer- 
tain federal franchises, among others, to construct and main- 
vain its lines over the public domain, and along any of the 
military or post roads of the United States; that being thus 
an instrumentality of and having franchises granted by the 
federal government, such franchises cannot be taxed by the 
state or any of the municipalities; and that the tax here in- 
volved was upon its franchise and therefore unlawful and 
void. 

Appellant relies on the case of San Francisco v. Western 
Union Telegraph Co., 96 Cal. 140, and the numerous deci- 
sions of the supreme court of the United States there cited. 
There is no doubt that in those cases it was firmly established 
that the federal franchises held by appellant cannot be taxed 



266 MoQoBKAY V, SxjPBBiOB Court. [141 Cal. 

by the state, and we have no disposition whatever to question 
them; but the complaint in the case at bar does not bring 
appellant's asserted rights here involved within the principle 
of those cases, because it does not appear that any federal 
franchise of appellant was assessed. The averment is, that 
the assessor assessed a ** franchise granted by the city of 
Stockton." It is averred that appellant had not and had 
never received '*any franchise of any kind or description 
from the state of California or from the county of San Joa- 
quin"; but there is no averment that appellant did not rt»- 
ceive a franchise from the city of Stockton. Possibly such 
averment was not made because it could not have been truth- 
fully made. There is a reference, by way of recital, to the 
circumstance of the assessor well knowing that the franchise 
was imaginary and fictitious, followed immediately by the 
averment '*that said county had never granted or pretende<i 
to grant any franchise of any kind to plaintiff"; but there 
is no averment that the city of Stockton never granted any 
franchise to plaintiff. We cannot hold that, as matter of law, 
the city could not possibly have granted to appellant, or that 
the latter could not possibly have received from the city, a 
franchise different from and in addition to the franchises 
granted to the appellant by the federal government. The 
complaint, therefore, does not state facts suflScient to con- 
stitute a cause of action, and the demurrer was properly sus- 
tained. 
The judgment appealed from is affirmed. 

Angellotti, J., Van Dyke, J., Shaw, J., Henshaw, J., Beatty, 
C. J., and Lorigan, J., concurred. 



[S. F. No. 3785. In Bank.— December 8, 1903.] 

B. McGOBRAY, Petitioner, v. SUPERIOR COURT OP 
SAN JOAQUIN COUNTY, Respondent. 

Justice's Oouet — Jxtsisdiotion — Waivkb or Objbotion. — ^Under the 
ternu of sabdiyiBlon 4 of section 890 of the Code of Civil Proce- 
dure, the objection that the action has not been commenced in the 
proper township is waived, if not taken at the trial. 



Dec. 1903.] McQoBRAT v. Superior Court. 267 

Id. — ^Wbit Of Bivisw — ^Imsutfioixnt Petition. — A petition for a writ 
of review to annul a judgment of the superior court rendered on 
appeal from the judgment of a justice's court, on the ground that 
it does not appear from the complaint in the justice's court that 
the action was commenced in the proper township, which does not 
allege that an objection to the jurisdiction of the justice of the 
peace was taken at the trial, or at all, is insufficient. 

PETITION for Writ of Review to annul the judgment of 
the Superior Court of San Joaquin County rendered upon 
appeal from a Justice's Court. F. H. Smith, Judge. 

The facts are stated in the opinion of the court 

A. H. Carpenter, and Joshua B. Webster, for Petitioner. 

Arthur L. Levinsky, for Bespondent. 

THE COURT.— The petition for a writ of review shows 
that the defendant was sued in a justice's court upon a con- 
tract for the payment of money, that he was served with 
summons and answered the complaint, that judgment was 
entered against him, that he appealed to the superior court 
on questions of law and fact, where, after a retrial, judgment 
was again entered against him. He contends that this judg- 
ment is void, because it does not appear from the complaint 
in the justice's court, the docket, etc., that the action was 
commenced in the proper township, and consequently that 
the justice of the peace had no jurisdiction originally, and 
the superior court no jurisdiction on the appeal except to 
dismiss the action. It is not alleged that any objection to the 
jurisdiction of the justice of the peace was taken at the trial 
or at all, and it is expressly provided by subdivision 4 of sec- 
tion 890 of the Code of Civil Procedure that the objection that 
an action has not been commenced in the proper township is 
waived, if not taken at the trial. This section must be con- 
sidered in connection with section 832 of the Code of Civil 
Procedure, and it provides for a mode of waiving objection 
to the jurisdiction fully as effective as a voluntary appear- 
ance without summons. 

Writ denied 



268 Kenwobtht v. Mast. [141 CaL 



[8. F. No. 3556. Department One. — ^December 9, 1903.] 

LEE KENWORTHY, Contestant, AppeUant, v. C. I. iLA.ST, 
Contestee, Respondent. 

£LEcnoN — ^Delay in Opknimq Polls — ^Pbsoinot Yotb not Intaudatkd. 
— A precinct Tote is not invalidated entirelj merelj because of de- 
lay in opening tbe polls, where the officers acted without fraudu- 
lent intent, and only one voter appears to have failed of voting by 
reason of tbe delay, whose vote could not have changed the result 
of the election. 

Id. — ^TxsT Applded to Dipabtubbs fbom Law.— -The true test to be 
applied to departures from the requirements of the laws regulating 
the conduct of elections on the proper day and at the proper place, 
whether the requirements are mandatory or directory, is as to 
whether or not the particular departure is of such a nature as to 
make it impossible or extremely difficult to determine, under the 
circumstances of the case, whether fraud had been committed or 
anything done which would affect the result. 

Id. — I*RBSUMPTI0N AS TO POPULATION. — There is no presumption that 
a township had a population entitling it to two justices of the 
peace, and where the pleadings of both parties justify it, it will be 
presumed after judgment that the township by reason of its popula 
tion was entitled to one justice of the peace. 

Id. — Decision upon Appbal— Finding against Etidbncb->Nbw Tbial. 
— Where a finding of the superior court as to malconduct of the 
election board was not sustained by the evidence as to one precinct, 
which was decisive of the election, this court cannot order final 
judgment, but will order a new trial, in which the court will deter- 
mine the case in accordance with the views expressed by this court. 

APPEAL from a judgment of the Superior Court of 
Mendocino County. J. Q. White, Judge. 

The facts are stated in the opinion of the court 

Arthur J. Thatcher, and J. C. Ruddock, for Appellant 

Thomas, Pemberton & Thomas, for Respondent. 

ANGELLOTTl, J.— This is an election contest. Contestee 
had judgment, from which the contestant appeals. Contest- 
ant and contestee were candidates for the office of justice of 
the peace of Little Lake Township, Mendocino County, at the 
last general election. As shown by the official canvass of the 



Dec. 1903.] Kenwoethy v. Mabt. 269 

board of supervisors, contestee received two hundred and six- 
teen votes and contestant two hundred and twelve votes, and 
the former was declared to be elected. Contestant instituted 
this contest, and the hearing before the superior court re- 
sulted in showing that he received one hundred and seventy- 
three votes and contestee one hundred and sixty-one, which 
would have given contestant the office but for the rejection by 
the trial court of the entire vote of two precincts, in each of 
which contestant had a majority, — ^to wit, Little Lake Precinct 
No. 1, in which he had a majority of ten, and Little Lake Pre- 
cinct No. 2, in which he had a majority of fourteen. Reject- 
ing the total vote of these two precincts, the contestee was 
elected by twelve votes. The court found that the officers of 
election in the several precincts were not guilty of any mis- 
conduct or malconduct (other than the improper counting for 
both plaintiff and defendant of certain ballots improperly 
marked, which errors were rectified by the court in the re- 
count), except that in the rejected precincts the polls were 
not opened by them at six o'clock a. h., as required by the 
statute. As to Little Lake Precinct No. 1, it was found that 
the polls were not opened until 8:10 ▲. m., and as to Little 
Lake Precinct No. 2, that the polls were not opened until 7 :4o 
A. M. It was also found that there was no sufficient cause or 
excuse for the failure to open the polls on time in either pre- 
cinct. It was further found that in Little Lake Precinct No. 
1 there were two hundred and ninety-five registered voters, 
of whom two hundred and thirty-seven deposited their bal- 
lots, and that in Little Lake Precinct No. 2 there were one 
hundred and eighty registered voters, of whom one hun- 
dred and forty-one voted; and further, "that it is not shown 
and cannot be determined in either precinct how much or in 
what way the total vote, or the relative vote, for the respective 
candidates for justice of the peace was affected by this failure 
and neglect of the election officers to open the polls at the 
proper time.** It is claimed by contestant that the court waa 
not justified in rejecting the vote of these precincts, and the 
findings of fact, in this behalf, are properly attacked by the 
specifications of insufficiency of evidence to sustain the same. 

If the vote of Little Lake Precinct No. 2 was improperly 
rejected, the contestant was elected by a plurality of two. 
We are of the opinion that whatever may be said as to the 



270 Kbnwortht v. Mast. [141 CaL 

other precinct, the evidence was not such as to justify the 
rejection of the vote of Little Lake Precinct No. 2. 

It is not intimated that there was any fraud or coUusiou 
on the part of the officers of this precinct. The contestee 
himself testified that he swore in the election board thereof 
at the hour of 7 :15 a. m., and that he did not know of any- 
body losing his vote by reason of the polls not being opened 
in time, unless one George Hall failed to vote for that reason. 
One of the election officers of this precinct testified (and his 
testimony was uncontradicted in any particular) that he 
opened the polling-place at six o'clock, and that from that 
time until the opening of the polls he and at least four others 
of the election board were continually present; that they 
were at work putting up the booths and making other prep- 
arations for the election. He further testified, without con- 
tradiction, **No one offered to vote before we were ready to 
receive votes. I was there all the time. ... I do not know 
of any elector in Little Lake Precinct No. 2 who was deprived 
of his right to vote by reason of the delay that morning, in 
opening the polls. '* This witness further testified positively 
that the officers were sworn in before seven a. m., and that 
the proclamation was made earlier than 7 :45, but upon these 
points there is some conflict of testimony. "While the testi- 
mony shows a delay in opening the polls that intelligent and 
prompt effort on the part of the officers would have avoided, it 
is clear therefrom that they acted without fraudulent intent, 
and the circumstances attending the irregularity were such 
that it could easily be determined that neither the total vote 
nor the relative vote for the respective candidates for justice 
of the peace was affected by the delay, except that possibly 
one man was caused to lose his vote thereby. The evidence 
indicates that very few persons were in the neighborhood dur- 
ing the early morning prior to the opening of the polls, and 
no reason is apparent why it could not be shown to a certainty 
whether or not any one left without voting. No one except 
the contestee knew of any such a one, and he could suggest 
only the name of Hall. Conceding that Hall did fail to vote 
because of the delay in opening the polls, and, further, that 
he would have voted for contestee, the result would not be 
materially affected, for contestant would still have a majority 
of one. 



Dec. 1903.] Kenwortht v. Mast. 271 

It is said that the proTisions as to time and place of holding 
an election are mandatory, and that the departure from those 
requirements was in this case so substcmtial as to forbid 
any inquiry as to whether or not any injury resulted. That 
a litercd compliance with the provisions of the law as to the 
hour of opening the poUs is absolutely essential to the validity 
of the vote of a precinct has never been held in this state, 
and no good reason can be conceived for so holding. Learned 
counsel for respondent admit that even the disobedience of 
a mandatory statute must be liberally construed, and that, 
if the departure therefrom is slight, and it can easily be 
determineKl that no injury resulted therefrom, the vote wiU 
not be rejected. It was said by this court in Atkinson v. 
Lorbeer, 111 Gal. 419, 421: ''Of course, neither the voters 
nor those voted for have any control over election officers, 
and to set aside the vote of a precinct, when there was 
clearly no fraud or any mistake affecting the result, for mere 
irregularities occasioned by the ignorance or carelessness of 
election boards would, in many cases, be a patent injustice. 
Moreover, a construction requiring an exceedingly strict com- 
pliance with all statutory provisions might tempt to irregu- 
larities contrived for the very purpose of vitiating the vote at 
a certain polling-place, and as was said in Whipley v. Mc- 
Kune, 12 Gal. 361, 'might lead to more fraud than it would 
prevent.* '* 

On the other hand the election laws should not be so con- 
strued as to open the door to future frauds which it is the 
purpose of those laws to prevent. It is practically impossible 
to lay down any general rule covering all cases, but we think 
the true test to be applied to departures from the require- 
ments of the laws relating to the conducting of elections on 
the proper day and at the proper place, be those requirements 
call^ mandatory or directory, is as to whether or not the 
particular departure is of such a nature as to make it impos- 
sible or eirtremely difficult to determine, under the circum- 
stances of the case, whether fraud had been committed or any- 
thing done which would affect the result. If, as was said in 
Atkinson v. Lorbeer, 111 Gal. 419, speaking of a departure 
from a so-called "directory" provision, it may be easily 
shown that the departure was not accompanied with fraud or 
any act affecting the result, and such showing is made, the 



272 Kenwobtht v. Mast. [141 CaL 

vote will not be rejected. If, on the other hand, the departure 
from the law is so gross as to give rise to a suspicion of fraud 
or unfairness, and the circumstances are such that in the 
nature of things no evidence as to the effect thereof could be 
satisfactory, a court will not enter upon the task of inquiry. 

In Packwood v. Brawnell, 121 Cal. 478, it was held by this 
court, reversing the action of the lower court in rejecting a 
precinct, that a specification of malconduct as follows, viz.: 
''That the said board of judges of election . . • did not open 
the polls at sunrise of said day of election, nor keep the polls 
open for the length of time required by law/* did not suffi- 
ciently show malconduct justifying the rejection of the pre- 
cinct. This decision was reached in the face of the facts 
shown by the findings of the trial court, that while the polls 
should have been opened at 6 *.29 a. ic., they were not opened 
until 8 :15 A. ic, or 8 :30 A. ic, and that one qualified elector 
was deprived of the opportunity to vote by the failure of the 
board to open the polls earlier. It was said in the opinion in 
that case that the legislature intended that some margin 
should be allowed for honest effort to comply with the statute, 
and did not intend that the vote of any precinct should be 
invalidated because the polls were not open at the very in- 
stant of sunrise. The chief justice, in a concurring opinion, 
while holding that the requirements as to time and place of 
holding an election are mandatory, said that time in this con- 
nection means the proper day for holding the election, and 
that a slight delay in opening the polls, explained and excused 
by the absence of one of the officers and by the necessity of 
setting up the booth, railings, etc., ought not to disfranchise 
the voters of a precinct, in the absence of any showing of 
actual injury. In People v. Preweii, 124 CaL 7, 12, where 
it was contended that a finding that liie i>ol]s were opened at 
one o'clock p. ic. was not sustained by the evidence, which, 
it was urged, showed that they were not opened until 1 :30 
p. M., this court said: '*But if the finding had been as appel- 
lants contend it should be, it would not affect the judj^ment, 
as no one was prevented from voting by the delay, which 
seems to have been caused by the failure of the inspector and 
judges to attend, the selection of others, and procuring a 
box to serve as a ballot-box." The general rule, as stated 
in McCrary on Elections (sec 165), is, that in the absence of 



Dec. 1903.] Ken WORTHY v. Mast. 273 

a provision in the statute expressly declaring that a failure 
in this respect shall render the election void, it will be re- 
garded as so far directory only, and that, unless the deviation 
from the legal hours has affected the result, it will be disre- 
garded ; but that if such deviation is great, or even consider- 
able, the presumption will be that it has affected the result, 
and the burden will be upon him who seeks to uphold the 
election to show afl&rmatively that it has not. 

If the circumstances are such that this cannot be clearly 
and satisfactorily shown, the precinct must, of course, be 
rejected. The cases relied on by the contestee are not against 
our conclusion in this case. In Tebbe v. Smith, 108 Cal. 101,* 
the polls of the rejected precinct were not opened until ten 
o'clock A. M., instead of at 6:31 a. m. In addition to this, 
the officers adjourned at noon to another place for dinner, 
taking the ballot-box with them, but leaving all the other 
materials, including the official unused ballots, in the polling- 
place. These departures, considered together, were held to 
be too radical to allow inquiry as to the effect. In People v. 
mil, 125 Cal. 16, the polls in two precincts were closed one 
hour and six minutes too soon. As suggested by the chief 
justice in his concurring opinion in Packwood v. Brownell, 
121 Cal. 478, delay in opening the polls is a much less serious 
irregularity than a premature closing of them. Where, in 
the latter case, any considerable number of electors have 
failed to vote, it would be practically impossible to satisfac- 
torily show, under ordinary circumstances, that they would 
not have voted if the polls had remained open. Be this as it 
may, there was in that case no suggestion of any attempt 
to make a showing of absence of injury, and the case was 
decided upon the bald fact of the premature closing of the 
polls. 

In the case of People v. Seale, 52 Cal. 71, the notice given of 
an election to vote a tax stated that the polls would be open 
only betw^een the hours of one o'clock p. m. and six o'clock 
p. M., and the polls were in fact kept open only between 
those hours. The law required the polls to be kept open, at 
such an election, from sunrise until sunset, and required 
the notice of election to specify the legal time. There was 



1 49 Am. St. Bep. 68. 
CXTiL CbL— 18 



274 B[enworthy v. Mast. [141 CaL 

in that case no notice, as required by law, of a leg^al election to 
be held, it being a special election to impose a tax, and any 
election thereunder was necessarily void. 

In Directors etc, y. Abila, 106 Cal. 365, it was held that a 
premature closing of the polls rendered a bond election nuga- 
tory. There was in that case evidently no attempt to show 
want of injury, as is apparent from a reading of the opinion 
of the court. 

The i>oint is made on this appeal for the first time that 
the statement of contest was fatally defective, in that it did 
not appear therefrom that the township was not entitled to 
two justices of the peace. If it was entitled to two, both 
contestants and contestee were elected. The law in foroe 
(Stats. 1901, p. 686) provided that "except as otherwise pro- 
vided in this act, the officers of a township are two justices of 
the peace . . . and in townships having a population of less 
than six thousand, there shall be but one justice of the peace.** 

This proceeding was apparently maintained, defended, and 
decided upon the theory, that only one justice of the peace 
was to be elected for Little Lake Township. It is alleged in 
the statement that contestant received the highest number 
of votes for said office, and that by reason thereof he was 
elected thereto, and that the contestee was not elected to said 
office. The contestee, in his answer, alleges that he received 
the highest number of votes for said office, and was elected 
thereto, and, admitting by his failure to deny the allegations 
of the statement in regard thereto, that he and contestant 
each had more votes than the only other candidate, denied 
that contestant was elected to said office or has any right to 
hold the same. There is no presumption that the township 
had a population of six thousand or more, or less than six 
thousand, unless the fact that the total vote for justice of the 
peace in the township was only four hundred and sixty-five 
provides a basis for such presumption, and we are justified 
by the pleadings in assuming after judgment, that the town- 
ship, by reason of its population, was entitled to only one 
justice of the peace. 

It will be observed that this objection, if applicable at all, 
can be considered only with reference to the statement of the 
grounds of contest, for in all other respects the statanent 
literally complies with the requirements of section 1115 of 



Dec. 1903.] McClintocz v. Hudson. 275 

the Code of Civil Procedure. "No statement of the grounds 
of contest will be rejected, nor the proceedings dismissed by 
any court for want of form, if the grounds of contest are 
alleged with such certainty as will advise the defendant of 
the particular proceeding or cause for which such election is 
contested." (Code Civ. Proc, sec. 1117.) 

It is suggested by counsel for contestant that, in the event 
of a reversal, final judgment should be ordered for him with- 
out the necessity of a further hearing in the court below. 
It has been suggested in several decisions that it is incumbent 
on the re8i>ondent in this class of cases to incorporate his 
exceptions to the ruling of the court in the bill of exceptions 
by way of amendment, so that this court may finally de- 
termine the matter. His failure to do so would not, in a 
proper case, prevent this court from making a final disposition 
of the contest. (See Famham v. Boland, 134 Cal. 151; 
Patterson v. Hanley, 136 Cal. 265.) We cannot, however, in 
the face of the finding of the trial court that the election 
officers were guilty of willful malconduct, and that it is not 
shown and cannot be determined how much or in what way 
the vote was affected thereby, order final judgment. That 
finding, at least so far as Little Lake Precinct No. 2 is con- 
cerned, is not, in our opinion, sustained by the evidence. 
It is unnecessary to discuss the matter of the other rejected 
precinct, as, in the event of a retrial, the lower court will 
determine the question as to whether or not it should be 
rejected, in accordance with the views herein expressed. 

The judgment is reversed and the cause remanded* 

Shaw, J.f and Van Dyke, J., concurred. 



fL. A. Ko. 1134. Department One. — ^December 0, 1003.] 

WILLIAM 0. McCLINTOCK, Respondent, v. VICTORIA 
HUDSON et al.. Appellants, 

Water Bights— Pxboolatino Watebt— Pindinqs — SumciiNCT of Eyi- 

DBNOK — ^ExCAVATION IN PeBMXABLI MATERIAL — ^DlMIKTTnON OF 

Btrbam. — Though the evidence tends very strongly to show that a 
tunnel and ezeavaiion hj the plaintiff in penueable gravellj ma- 



276 McCuNTOCK V. Hudson. [141 CaL 

terial near the bed of a stream took part of the subterianean flow 
of the waters of the stream, constituting part of the stream; yet 
where the findings that the tunnel took only percolating water from 
plaintiff's land, and that it did not diminish the supply of the water 
to which the defendants were entitled, were contrary to the evi- 
dence, which showed clearly, without conflict, that the stream was 
substantially diminished thereby to the injury of the defendants, 
and that the water was taken beyond the lines of the land from 
which it was taken, the plaintiff had no right to a decree declaring 
him to be the absolute owner of the water thus taken, or quieting 
his title thereto. 

Id. — ^UuDERGBOUND Wateb. — Under the rule established in KatB ▼. WdO^ 
inshaw, ante, p. 116, with respect to percolating water, it is not 
lawful for one owning land bordering on a stream to excavate in 
his land, intercept percolating water therein, and apply it to anj 
use other than its reasonable use upon the land from which it is 
taken, if he thereby diminishes the stream to the damage of otheza 
having rights therein. 

Id. — Rights in PEaooLATiNG Watee. — An owner of land adjoining a 
stream, who, by excavations in his land, takes percolating water 
therefrom, and to that extent diminishes the stream, has no greater 
rights to the water thus taken from the stream than he would have 
if the water were taken directly from the stream. 

Id. — Duty or Court — Amount of Diminution. — ^It was the duty of the 
court to have found from the evidence that the taking out of the 
water through plaintiff's excavation and tunnel caused a diminu- 
tion of the stream, and then to ascertain and state the amount of 
the diminution. 

APPEAL from an order of the Superior Court of Los 
Angeles County denying a new trial. D. K. Trask, Judge. 

The facts are stated in the opinion of the court 

Charles H. McFarland, for Appellants. 

The plaintiff had no right to divert the waters of the stream 
through his tunnel, on the theory that it was percolating 
water. {City of Los Angeles v. Pomeroy, 124 Cal. 597; Smith 
V. Brooklyn, 46 N. Y. Supp. 147; Van Wickley v. Brooklyn, 
118 N. Y. 4; Burroughs v. Satterlee, 67 Iowa, 396;^ Hals 
V. McLea, 53 Cal. 581 ; Saddler v. Lee, 66 Ga. 45.«) 

John D. Pope, for R(?spondent. 

Waters filtrating or percolating in the soil belong to the 
owner of the soil, and he may use them as he chooses. (JSTan* 

156 Am. Bep. 350. 142 Am. Bep. 62. 



Dec. 1903.] McClintock v. Hudson. 277 

son V. McCue, 42 Cal. 303 ;i Painter v. Pacific L. and W. Co., 
91 Cal. 74; Southern Pacific R, K Co. v. Dufour, 95 Cal. 
369; Gould V. Eat&n, 111 Cal. 639,-* Sullivan v. Northern 
Spy Min. Co,, 11 Utah, 438 ; Gould on Waters, sec. 280, and 
cases cited.) Katz v. Walkinshaw, ante, p. 116, is not in- 
tended to overrule these authorities. Water under the sur- 
face of the earth is presumed to be percolating water. {Han- 
sen V. McCue, 42 Cal. 303;* TampaWatenvorks Go.y. Cline, 
37 Fla. 586 f Metcalf v. Nelson, 8 S. Dak. 87 ;* Kinney on 
Irrigation, sec. 49; Gould on Waters, sec. 281.) 

SHAW, J. — Judprment was given in the court below in 
favor of the plaintiff. The defendants moved for a new 
trial, and their motion having been denied, they now appeal 
from the order denying the same. 

The complaint alleges that the plaintiff is the owner of a 
certain tract of land in Los Angeles County, and of all the 
subterranean water flowing therein and percolating through 
the soil thereof; that the plaintiff has made an excavation 
and constructed a tunnel, whereby a portion of the subter- 
ranean waters percolating through the soil is collected; that 
the excavation and the tunnel and the waters thereby col- 
lected are entirely upon the land described, and are the prop- 
erty of the plaintiff, and that the defendants claim some 
right or title to the subterranean waters in the land which is 
without foundation. Whereupon* they ask that their title 
to the property be quieted. The land described in the com- 
plaint comprises about thirty-five or forty acres. 

The defendant answered, denying the allegation that 
the plaintiff owns the subterrai r n waters flowing and perco- 
lating in the soil of the land described, and alleging that the 
land of the plaintiff, and also a number of tracts of land 
ow^ned by the defendants respectively, each border upon and 
are rij arian to a certain stream of water known as San Jose 
Creek, which is a stream carrying during the dry season 
about Ave hundred miners' inches of water; that the plaintiff 
and the defendants, in connection with other riparian OAvners. 
were each entitled to use a portion of this water for the irri- 



1 10 Am. Rep. 299. s ;., Am. St. Rep. 262. 

S52 Am. St. Bep. 201. 4 59 Am. St. Rep. 746. 



278 McClintock v. Hudson. [IttTJal- 

gation of their respective tracts of land ; that all the water of 
the creek was necessary for that use, and that all the parties, 
including the plaintiff, had for many years diverted all the 
water of the creek and used the same for irrigation of their 
respective tracts of land; that the plaintiff, by means of the 
excavation and tunnel mentioned in the complaint, had col- 
lected together within his said tract of land a stream of water 
amounting to about one hundred miners' inches of water, 
which was composed of the percolating and subterranean 
waters flowing through and under the plaintiff's land; that 
this water so collected had been taken out by the plaintiff and 
carried to land which does not belong to him, and which is not 
riparian to the said creek, and which has no right whatever 
to any of the waters of the creek; that if this water so col- 
lected is allowed to be taken out by the plaintiff, the amount 
of water flowing below in the bed of the creek will be 
diminished by the amount that is so collected by the tunnel, 
and that the defendants will thereby be deprived of the right 
to use that amount of the water flowing in the creek. The 
same allegations are repeated by way of cross-complaint, 
and there is a prayer that the plaintiff be enjoined from 
continuing to gather and divert the water by means of his 
tunnel. 

The court flnds that the waters collected and gathered by 
the tunnel, and flowing out of the same, consist of waters 
percolating in the soil of the plaintiff's land, and do not 
constitute any part of the waters of the creek; that there is 
not, and has not been, at any time any subterranean stream 
or streams, or any other waters, surface or subterranean, 
in the land of the plaintiff which contributed in any manner 
to the flow of the creek; that the defendants owned no part 
of the waters gathered or collected by the plaintiff by means 
of the tunnel and excavation, and that the taking of the 
water by the plaintiff through the tunnel and excavation 
did not diminish the supply of the water to which the de- 
fendants were entitled. The defendants upon the motion 
for new trial question the sufficiency of the evidence to sustain 
the findings that the tunnel does not take water from the San 
Jose Creek, that it does not take subterranean water which 
contributes to the flow of the creek, and that no part of thd 



Dec. 1903.] McClintock v. Hudson. 279 

waters taken by the tunnel is owned by the defendants, or 
either of them. 

The answer was filed a few days after the decision of this 
court in Los Angeles v. Pomeroy, 124 Cal. 597, and the trial 
took place a few months thereafter. It is quite evident from 
the proceedings in the course of the trial that the theory of 
the defendants at that time was that San Jose Creek was a 
stream consisting of water flowing upon the surface, resting 
ui)on and supported by a body of water permeating the 
ground under the same, and constituting a part of the stream, 
similar to that considered in Los Angeles v. Pomeroy, 124 
Cal. 597. The court and counsel on both sides seem to have 
treated the case as presenting the question whether or not 
the percolating waters obtained by means of the tunnel in 
plaintiff's land was part of an underground flow which 
formed a part of the stream known as San Jose Creek. 

The evidence tends very strongly to show that it did con- 
stitute a part of that watercourse. The topography of the 
country and the situation of San Jose Creek, with the charac- 
ter of its bed, are alone almost sufficient to prove this fact. 
San Jose Creek at that point, when there is any water flowing 
in it at all, runs in a shallow channel, situated in the bottom 
of a gulch, or ravine, about one hundred feet wide, with 
banks something over twenty feet in height. This gulch, or 
ravine, has, in close proximity on each side, a range of hills. 
Above, in the same valley, the ranges of hill separate and 
form a considerably wider valley, so that the entire watershed 
contributing to the flow of the creek comprises, according to 
the testimony, some seventy square miles, the water from aU 
of which, if ordinary conditions prevailed, would be forced 
to flow down the narrow part of the valley in which the plain- 
tiff's land is situated. The bed of the creek is composed of 
gravelly material, easily permeated by water. The excava- 
tion commences in the bed of the stream, and about at the 
level thereof, and for a distance of about four hundred feet 
it runs almost parallel with the stream at a distance of 
not more than fifty feet away, and at an elevation, at the 
upper end of the four hundred feet, about two feet below 
the bottom of the stream bed. The tunnel extends from the 
upper extremity of this excavation, deflecting somewhat from 
the course of the stream, and runs under the ground four 



280 McClintock r. IIudson. [141 Cal. 

hundred and eighty feet, to a point about three hundred feet 
from the bed of the stream, and some four feet below the 
bottom of the bed. The bottom of the tunnel and excavation 
throughout its course consists of the same gravelly material 
as the bed of the stream. The evidence shows that, in the 
fall of 1898, when the tunnel was begun, there was a small 
surface stream of water flowing in the bed of the creek ; that 
when it was completed early in the following spring, and evea 
before its completion, the stream had ceased to flow, a thing 
which had never before occurred at that season; and that 
from that time until the trial, in the fall of 1899, there had 
been no water flowing in the creek at that point. Prom these 
facts the conclusion is almost irresistible that the excavation 
and the tunnel had either intercepted some of the water that 
would eventually have reached the stream, or had withdrawn 
some of the water from the stream by percolation through the 
gravelly material. The streams of this state in their course 
through the lower levels, after they have left the precipitous 
sides of the mountains on which they originate, do not ordi- 
narily flow over beds of rock or other material impervious to 
water. The usual condition is, that such streams flow in a 
shallow channel, over and through a mass of sand and gravel 
saturated with water from bed-rock up to or slightly 
above the level of the surface of the stream. Streams of this 
character were the subject of the litigation, and the rules to 
ascertain what is necessary to make the underground water 
constitute a part of a stream were considered, in the cases of 
Hale V. McLea, 53 Cal. 578; Los Angeles v. Pomeroy, 124 CaL 
597; Vineland Disi. v. Azusa Dist., 126 Cal. 486; and Yar- 
wood V. West L. A. W. Co., 132 Cal. 204. In almost every 
case a stream of this chafacter, if excavations are allowed 
to be made in the permeable material underlying and adjoin- 
ing the bed of the stream, the ro^ult inevitably is, that 
th»i water collected in such excavations either comes from 
the stream by percolation from above, or is intercepted on 
its way to the stream below, with the consequence that in 
either event the stream is diminished by the amount of water 
which is gathered in the excavation. 

It is not necassary, however, in this case to determine 
whether or not the court was wrong in refusing to character- 
ize the flow of underground water, which the plaintiff took 



Dec. 1903.] MoCuNTOCK v. Hudson. 281 

by means of his tunnel, as a part of the stream and necessary 
to its support and maintenance. The case of Katz v. Walking 
$haw, ante, p. 116, decided November 28, 1903, establishes a 
rule with respect to waters percolating in the soil, which 
make it to a large ez:tent immaterial whether the waters in 
this land were or were not a part of an underground stream, 
provided the fact be established that their extraction from 
the ground diminished to that extent, or to some substantial 
extent, the waters flowing in the stream. By the principles 
laid down in that case it is not lawful for one owning land 
bordering upon or adjacent to a stream, to make an excavation 
in his land in order to intercept and obtain the percolating 
water, and apply such water to any use other than its reason- 
able use upon the land from which it is taken, if he thereby 
diminishes the stream and causes damage to parties having 
rights in the water there flowing. If, therefore, it appears 
in this case that the finding of the court that the water taken 
by the plaintiff did not diminish the waters in the stream 
is not supported by the evidence, but that, on the contrary, 
the evidence shows that the stream was substantially dimin- 
ished thereby, to the injury of the defendants, as the finding 
is necessary to support the judgment, the case must be re- 
versed and a new trial had, even if the water when taken 
did not constitute strictly a part of the stream. 

The court below manifestly did not consider that this ques- 
tion was of any consequence, and, having concluded that the 
water was not a part of the stream, it conceived the idea 
that it was not water to which the defendants were entitled 
in law, and that, consequently, its abstraction did not take 
any of the flow of the stream to which the defendants were 
entitled. And this would have been correct if the principle 
had not been established in Katz v. Walkinshaw, ante, p. 116, 
as stated. It is quite clear from the evidence that the court 
erred in finding that the stream was not diminished by the 
abstraction of the water by the plaintiff by means of the ex- 
cavation and tunnel. Three hydraulic engineers testified on 
behalf of defendants, and each, after describing the condition 
and character of the material composing the bed of the creek 
and the bottom of the tunnel, stated that, in his opinion, 
necessarily, whatever water was taken from the excavation 
and tunnel diminished by that much the amount flowing in 



282 McClintock v. Hudson. [141 CaL 

the stream below. There was no evidence to the contrary. 
One engineer was examined on behalf of the plaintiff in 
rebuttal, but he was not asked whether or not, in his opinion, 
the percolating waters gathered by the tunnd would eventu- 
ally reach the stream, nor whether or not the waters in the 
tunnel came from the stream through the permeable material. 
There is no conflict in the direct evidence on this question, and 
the circumstances, generally, tend to confirm the opinion of 
the engineers. The court should have found from the evi- 
dence that there was a diminution of the stream caused by 
the taking out of the water tlirough the excavation and 
tunnel. Having found this fact, it would then be the duty 
of the court to ascertain and state the amount of the diminu- 
tion. The plaintiff has no right to a decree declaring him to 
be the absolute owner of water thus taken from the creek, or 
quieting his title thereto. His rights therein are no greater 
than they would be if he had taken the water directly from 
the stream. 

There is no finding upon the allegation that the plaintiff 
was taking this water to distant and non-riparian lands. The 
court below probably deemed this immaterial, after having, 
found that the water taken was no part of the waters of 
the creek, and did not reduce the quantity there flowing. 
The evidence shows clearly that the water in question was 
taken beyond the boundaries of the land described in the com- 
plaint, but it does not show to what use it was put by the 
plaintiff. He had no right, however, to take it beyond the 
lines of the land from which it was taken and divert it from 
the stream, either to let it go to waste or to use it on other 
lands. The motion for a new trial should have been granted* 

The order appealed from is reversed and the cause re- 
manded for a new trial. 

Van Dyke, J., and Angellotti, J., concurred. 

Hearing in Bank denied. 



Dec. 1903.] Southern etc. Water Co. v. Cameron. 283 



[L. A. No. 1101. Department One.— Deeember 10, 1903.] 

SOUTHERN CALIFORNIA MOUNTAIN WATER COM- 
PANY, Respondent, v. GEORGE W. CAMERON et al., 
Appellants. 

Action to Oondsmn Land — Dismissal by Plaintiff — Stipulation- 
Conditions Rendered Impossible. — The right of the plaintifP in an 
action to condemn real property to dismiss it before trial, npon pay- 
ment of costs, where no counterclaim had been made nor affirmative 
relief sought by cross-complaint, or answer, is not precluded by a 
stipulation for judgment for the plaintiff at a fixed price, contain- 
ing conditions for its effectiveness which have never occurred and 
cannot occur. 

APPEAL from a judgment of the Superior Court of San 
Diego County dismissing an action at plaintiff's request. N. 
H. Conklin, Judge. 

The facts are stated in the opinion. 

W. R. Andrews, and W. T. McNealy, for Appellants. 

The stipulation precluded the idea of a trial. {Gregory 
V. amiih, 102 Cal. 50; Cooper v. Gordon, 125 Cal. 296.) The 
stipulation fixed the rights of the parties, and the plaintiff 
had no right to dismiss not given by the terms of the stipula- 
tion. (Code Civ. Proc, sec. 581; Killey v. Wilson, 33 Cal. 
692, 693; Cl^irk v. Hundley, 65 Cal. 95; Rohinson v. Placer- 
vUle etc. B. R. Co., 65 Cal. 266 ; Casey v. Jordan, 68 Cal. 246 ; 
Wyait v. Sweet, 48 Mich. 539; Hutchings v. Page, 67 Wis. 
207.) Where the plaintiff, by his own default, has been dis- 
abled from making the stipulation effective, by compliance 
with the conditions, he cannot take advantage of his own 
wrong. (Broom's Legal Maxims, 4th ed., pp. 212, 216, 275, 
281.) 

Titus & Shaw, for Respondent 

The plaintiff had the right to dismiss the action when the 
stipulation did not preclude it by its terms. (Code Civ. 
Proc, sees. 581 (subd. 1), 1256.) In condemnation proceed- 
ings the plaintiff may dismiss before judgment, even after 



284 Southern ktc. Wateb Co. v. Cameron. [141 Cal. 

the price is fixed, before it is paid. (United States v. Oregon 
Ry. and Nav. Co., 16 Fed. 524; State v. Heig, 44 Mo. 116; 
Maybon v. Halsted, 39 N. J. L. 600; O'NeU v. Hudson 
Co^mty, 41 N. J. L. 61; People v. Brooklyn, 1 Wend, 318,-^ 
Fox V. Western Pacific R. R, Co,, 31 Cal. 538; Lamb y. 
Schottler, 54 Cal. 319 ; Chicago v. Barbain, 80 111. 482 ; City 
of Bloomington v. Miller, 84 HI. 621 ; Blackshire v. Atchison 
etc. R. R. Co., 13 Kan. 514.) 

COOPEE, C. — ^This action was brought to condemn certain 
real estate alleged to be the property of defendants Cameron. 
In February, 1901, on plaintiff's motion, the court made an 
order dismissing the action, and judgment of dismissal was 
accordingly entered. This appeal is from the judgment. 
Plaintiff had the right under tiie statute to dismiss the case 
at any time before trial, upon payment of costs, provided a 
counterclaim had nut been made, nor afiSmiative relief sought 
by tlie cross-complaint or answer. (Code Civ. Proc., sec. 
581, subd. 1.) No counterclaim had been made and no affirm- 
ative relief was sought by cross-complaint or answer. The 
plaintiff paid the costs. The above propositions are not 
disputed, but defendants claim that the plaintiff should not 
have been permitted to dismiss by reason of a stipulation. 
On the fourteenth day of May, 1897, the case stood upon de- 
fendants* demurrer to the plaintiff's amended complaint, 
which demurrer was filed in November, 1895, and appears 
never to have been disposed of in any manner. On said 
fourteenth day of May the parties entered into and filed a 
stipulation as to the value of the land the number of acres 
in the respective tracts sought to be condemned. The stipula- 
tion provided that judgment should be entered for plaintiff, as 
prayed, the value of the land to be fixed as per the stipulation ; 
provided, that no judgment should be entered and no further 
proceedings had until a final decision of the supreme court in 
a case then pending therein (referring to the cases of Meyer 
V. City of San Diego, and San Diego Water Co. v. City of 
San Diego, consolidated, 62 Pac. 211). Said stipulation 
further provided: **And if judgment be rendered in said 
supreme court in said action, whereby it shall appear from 



MP attj. ri^. K«^ 



Dec. 1903.] SouTHEaiN etc. Water Co. v. Cameron. 285 

Ihe decision of said supreme court that the bonded indebted- 
ness referred to in the judgment of the superior court of San 
Diego County hereinbefore rendered in said action is, and will 
be, valid and binding upon said city, and that the bonds which 
may be issued pursuant thereto will be legal, valid, and bind- 
ing obligations upon said city, then judgment shall be ren- 
dered in this action for the condemnation of said lands 
described in plaintiff's amended complaint herein, at the valu- 
ation hereinbefore fixed and referred to, and the value of said 
lands, as above stated, shall be forthwith paid to the defend- 
ants, respectively, according to their ownership, and if it 
should finally be decided by said supreme court that said 
bonds are invalid, then the plaintiff shall have the option to 
have said judgment entered at the valuation aforesaid, or to 
dismiss said action. 

**It is further stipulated that if the plantiff herein does 
not use due diligence in bringing said case now pending in 
tne supreme court, and above referred to, to a hearing before 
said court, that the defendants, or either of them, at any time 
upon due notice given to the plaintiff, may have this action 
dismissed." 

The case referred to in the stipulation was afterwards tried 
in the superior court of Orange County, and judgment en- 
tered against defendants in said action, adjudging the con- 
tract void, and that the city of San Diego and its officers be 
perpetually enjoined from carrying out their contract or 
issuing any bonds, and that the attempted bonded indebted- 
ness of the city of San Diego was void. An appeal was taken 
from the judgment by the city of San Diego and by this 
plaintiff, which appeal was dismissed in the supreme court 
as to this plaintiff, because plaintiff had not executed the 
proper undertaking on appeal. The appeal was afterwards 
dismissed in the supreme court as to the city of San Diego, 
by motion of its own attorney. It thus appears that the 
bonded indebtedness of the city of San Diego, referred to in 
the stipulation has never been decided to be valid and 
binding, nor has it been decided that any bonds which 
might be issued will be legal or valid. On the contrary, just 
the opposite has been held, and the judgment of the superior 
court of Orange County has become final by reason of the 



256 SouTHEBN ETC. Water Co. V. Cameron. [141 CaL 

dismissal of the appeals. It is therefore apparent that the 
conditions mentioned in the said stipulation as to the right 
to have judgment entered in this ease have never occurred. 
It is also evident that such conditions cannot now occur. 
This is the view taken by appellants' counsel, for in their 
brief they say: **The decision provided for in the second 
paragraph of the stipulation never having been rendered, 
and, on account of tiie termination of the cases therein re- 
ferred to, it being impossible now that any decision of the 
supreme court can be rendered in said cases, we claim that 
this paragraph of the stipulation becomes nugatory." The 
right to have judgment entered on the merits depends upon 
the stipulation. We look in vain for any provision in the 
stipulation authorizing judgment to be entered in the present 
condition of affairs. We do not deem it material here to in- 
quire into the question as to how the present condition of the 
cases referred to in the stipulation was brought about We 
are confined, as to the judgment, to the rights of the parties 
as measured by the stipulation. If the stipulation was in- 
tended to be a sale of the defendants' land to the plaintiff, 
such intention nowhere appears. On the contrary, it is pro- 
vided that if it shall be finally decided by the supreme court 
that said bonds are invalid, ''then the plaintiff shall have the 
option to have said judgment entered at the valuation afore- 
said, or to dismiss said action." While the supreme court 
has not decided that the bonds are invalid, the effect of the 
appeal being dismissed is to make the decision of the lower 
court holding them invalid final. The plaintiff, therefore, 
has the right to dismiss the action, as the stipulation does not 
now prevent it. Defendants took the precaution to provide 
that if plaintiff did not use due diligence in prosecuting the 
case referred to in the stipulation, that, as a penalty, defend- 
ants might have the action dismissed. This seems to have 
been the view taken by defendants' attorney prior to the time 
plaintiff gave notice of motion to dismiss; for in a letter to 
plaintiff's attorney, dated May 12, 1899, he quoted the provi- 
sion of the stipulation as to defendants' right to dismiss for 
want of diligence, and said: ''Consequently said company is 
no longer in a position to carry out its agreement, as pro- 
vided for in said stipulation, to use due diligence in the 
prosecution of said action of Meyer v. City of San Diego to a 



Dec. 1903.] Southern etc. Water Co. v. Cameron. 287 

final determination. Such being the case, it seems to me we 
are entitled to take action as provided in said stipulation." 
If the stipulation were a valid contract, upon consideration, 
for the sale of defendants' land to plaintiff, it might be en- 
forced, or damages given in the proper court, but even then 
it would not prevent plaintiff from dismissing its action for 
condemnation of the lands. The result of the stipulation 
was to bind defendants for a certain time as to the price of 
the land sought to be condemned, and the withdrawal of any 
question as to the right of plaintiff to condemn. They took 
chances on getting the price per acre for the land as valued 
in the stipulation. They did not take the precaution to make 
the stipulation more certain and definite. As they did not 
do so, the court cannot aid them by adding to it matters not 
provided for. Defendants still have their land, freed from 
the stipulation and from the suit pending to condemn. The 
result seems to be that which was anticipated by inserting the 
clause as a protection to defendants in the latter part of the 
stipulation. Defendants were given the right, in case due 
diligence was not used, to have the action dismissed. 
Whether plaintiff used due diligence or not, it has dismissed 
the action. If it be true that plaintiff intends to bring an- 
other action to condemn the same lands for the same purpose, 
it is also true that the defendants have the right to contest 
the proceedings and protect their property. If they should 
again enter into a stipulation, it is presumed that they will use 
due care to protect their rights by the stipulation. 

It appears that plaintiff made a prior motion to dismiss 
this action, which motion was denied without prejudice. The 
plaintiff appealed from the said prior order den3dng its mo- 
tion to dismiss. The decision herein makes it unnecessary to 
review the action of the court in regard to the prior motion. 

The order should be affirmed. 

Haynes, C, concurred 

For the reasons given in the foregoing opinion the judg- 
ment of dismissal appealed from is affirmed and plaintiff's 
apx>e«u from the prior order is dismissed. 

Shaw, J., Angellotti, J., Van Dyke, J. 



288 Walthbr v. Sieera Ry. Co. [141 CaL 

A rehearing in Bank was denied January 9, 1904. Beatty, 
C. J., then delivered the following dissenting opinion : — 

BEATTT, C. J. — I dissent from the order denying a re- 
hearing. The order of the superior court cannot be affirmed 
without deciding one or the other of two propositions against 
the appellants, and neither of them has been decided or 
discussed in the Department opinion. Appellants contend: 
1. That if the cause referred to in the stipulation had been 
decided by the supreme court on the merits, affirming the 
validity of the bonds of San Diego, the plaintiflf could not 
then have dismissed the action, but would have been bound 
to enter the judgment as stipulated; and 2. That being so 
bound in the contingency stated, the plaintiff became abso- 
lutely bound when solely through its default in prosecuting 
the appeal referred to the condition of its obligation became 
impossible of fulfillment. These contentions may or may not 
be sound, but the order cannot be affirmed without deciding 
at least one of them in the negative. 



[8m. No. 987. Department Two. — December 10, 1903.] 

P. F. WALTHER, Respondent, v. SIERRA RAILWAY 
COMPANY et al., Appellants. 

Action bt Tenant — ^Kh^lino of Doiobstio Animai/— FAn«uBB of Bail- 
BOAD Ck)MPANY TO Fengs Tback— Oonstbuction OF OoDB. — A tenant 
has a property right in the land oeenpied hj him within the mean- 
ing of section 485 of the Civil Code, giving a right of action 
against a railroad company for the killing of a domestic animal 
''upon their line of road which passes through or along the prop- 
erty of the owner thereof/' in ease of the company's failure to 
fence the track. Any lawful occupant of the land may maint,ain 
the action in case of such failure. 

APPEAL from a judgment of the Superior Court of 
Stanislaus County. William 0. Minor, Judge. 

The facts are stated in the opinion of the court 



Dec. 1903.] Waltheb v. Sdcbra Ry. Go. 289 

S. D. Woods, L. J. Maddux, and B. L. Beardslee, for Ap- 
pellantB. 

C. W. Eastin, for Bespondent 

HENSHAW, J. — ^Thifl action was prosecuted against de- 
fendants under section 485 of the Civil Code, to recover 
damages for the killing of a mule. The plaintiff was the 
lessee of the owner of the land. He was awarded a judg- 
ment, from which defendants appeal. The single proposition 
which they here advance is, that the section above cited gives 
a right of action only to the ''owner" of the land along or 
through which the railroad passes, to the exclusion of tenants 
and lessees. 

In support of their contention appellants quote Baker v. 
Southern California By. Co,, 110 Cal. 455, where it is said: 
''It will be noticed that by this section it is contemplated that 
the plaintiff must be the owner of the land through which 
the line of road passes.'* But herein the court was cousider- 
ing the su£5cieney of the complaint filed in the justice's 
eourt, which pleaded ownership, and the question as to what 
would constitute a sufficient ownership under the statute was 
not before it. This becomes apparent from the fact tnat the 
learned author of the opinion in Baker v. Southern California 
Ry, Co. also spoke for the court in the case of King v. South- 
ern Pacific Co., 109 Cal. 96, where, discussing the case of 
McCoy V. Southern Pacific Co., 94 Cal. 568, involving the 
same section of the Civil Code, he said : ''The status of plain- 
tiff was held to be that of a mere licensee of the Boyd broth- 
ers, they being at all times in the actual possession of the 
land, and, for the purposes of the statute heretofore referred 
to, the owners thereof." The Boyd brothers were but the 
tenants of the owner. Again, appellants rely upon the 
language of this court in the same case upon anothei appeal, 
reported in 126 Cal. 516, where it is said, still referring to 
this section of the Civil Code: "The whole provision seems to 
be in the interest of the owner of the land through or along 
which the railroad runs." But that decision further de- 
clared that, even if the section was broad enough in its scope 
to include a tenant or licensee, there was an utter failure of 
evidence to show that the plaintiff were such tenants or 
GXLL Osl.— 19 



290 Walther V, Sierra Ry. Co. [141 Cal 



licensees. If it be held that the opinion is a determination 
that the provisions of the section limit the right of action to 
the owner of the land alone, then it must be noted that upon 
this particular point there was no decision of the court. 
It was a Department opinion, signed by but two members, 
and in the concurring opinion of the chief justice it is said: 
**A8 to the right of a lessee to maintain an action under the 
statute, I have no doubt that his estate is sufficient for the 
purpose, though he would be bound, no doubt, by any waiver 
on the part of his landlord of the right to have the land 
fenced.*' 

We entertain no doubt that the last-quoted sentence ex- 
presses the true construction of the section, and this construc- 
tion is not only borne out by our own decisions, but is in har- 
mony with the cases arising under like statutes in sister states. 
In the first place, it is to be observed that the section itself 
does not limit the right of action to the owner of the land. 
Its language is, that the railroad company is resx)onsible for 
the injury it may occasion to domestic animals upon its line 
of road which passes through or along the property of the 
owner of the animals. The only word here requiring defini- 
tion is the word italicized, and the question is what is 
the property in land which a man must possess to vest him 
with this right of action. In McCoy v. Southern Pacific Co., 
94 Cal. 568, the action was brought, not by the owner, nor 
yet by the tenant of the owner, but by the licensee of the 
tenant, who had acquired from the tenant the right to pasture 
the land. The Boyd brothers were the tenants. Throughout 
the case it is assumed that the rights of the Boyd brothers 
were absolute under the statute, and the determination of 
this court was merely that their licensee occupied no more 
favorable position than would the tenants. This was a de- 
cision by the court in Bank, and in his concurring opinion 
Mr. Justice McFarland says distinctly and in terms: "The 
Boyds were the owners of the property within the meaninof 
of the statute." 

That a tenant has a property in land may not be doubted- 
The word as here used is interchangeable with estate. Imme- 
diately upon the commencement of the term, unless spedal 
reservation is made, the tenant succeeds to all the rights of the 
landlord that are annexed to the estate, so far as the posses- 



Dec. 1903.] Callahan v. Jamies. 291 

sion and enjoyment of the premises are concerned, and he 
may sue either the landlord or a stranger for any species of 
injury thereto that affects his estate. (Wood on Landlord 
and Tenant, p. 1300.) Elsewhere, as has been said, the de- 
cisions are uniform to the effect that the lawful occupant of 
the land may maintain this action, and, indeed, many of the 
cases go further, and upon the theory that the requirement 
to fence is an exercise of the police power for the benefit of 
the public generally, it is held that this action is open to any 
person suffering injury from the fault of the railroad com- 
pany in this regard. {Norris v. Androscoggin R. B. Co., 
39 Me. 273 ;i Marietta etc. R. R. Co. v. Stephenson, 24 Ohio 
St. 48; Sika v. Chicago etc. Ry. Co., 21 Wis. 370; Great WesU 
em R. R. Co. v. Helm, 27 111. 198,-* Sawyer v. Vermont etc. 
R. R. Co., 105 Mass. 196 ; Dawson v. Midland Ry. Co., 8 L. R. 
Ex. 8; Spinner v. New York Cent. etc. R. R. Co., 67 N. Y. 
153; Rorer on Railroads, p. 1407; 1 Redfield's American Rail- 
way Caaes, p. 355.) 

A motion by respondent to dismiss this appeal has been 
submitted. It has been deemed advisable, however, to de- 
cide the case upon the merits, and under the conclusion 
which we have reached a decision upon the motion to dismiss 
becomes unnecessary. 

The judgment appealed from is affirmed. 

McFarland, J., and Lorigan, J., concurred. 
Hearing in Bank denied. 



[Sac. No. ©64. In Bank.— December 10, 1903.] 

JOHN P. CALLAHAN, Respondent, v. JOHN P. JAMES 
et al.. Appellants. 

MiKiNO Claims — Eptect of Townsitk Entry and Patent. — A town- 
site entry and patent does not cany title to any mine of gold, silver, 
dnnabar or copper known to be valuable for mining purposes at 
the date of the entry, or to any valid mining claim or possession 
then held under eristing laws. In respect to a valid mining claim 



2 63 Am. Dec 621. 1 81 Am. Bee. 226. 



292 Callahan t;. Jameb. [141 Gal. 

or poBsession it is immaterial whether the claim was then known 
to contain mineral of luffieient value to jnetify exploration or not. 

Id. — ^ASSESSKXNT WOBK— FOBFBITUBB — ^BUBOEM OF PROOF. — ^Whcn ther* 
has been a valid location of a minin^f elaim, and possession has been 
maintained thereunder, the burden of proving the facts constituting 
a forfeiture of the title or right of possession hj failure to do the 
annual assessment work required is upon the partj asserting it. 

In. — AonoN TO QuxKF Titia— Failubi to Fun) upon Dxrnsx or Taar 
TBTUEM — ^EvmxNGi IK Statbmxmt. — ^In an action \jj the owner of 
a mining claim to quiet his title thereto against defendants claim- 
ing under a townsite enti/ and patent, where the evidence in the 
statement is suiBcient to justify a finding that the annual work was 
done bj the mining claimants, and there is no evidence to sustain 
the defense of forfeiture, the failure to find upon such defense wiU 
not justif7 a reversal. 

In. — EVIDKNCX— iDKNTinOATION OF CLAIM— OOMTINUAirOB OF YXEN IN 

Adjoinino Culim.— Evidence was admissible to show that the same 
vein ran through plaintiff's mining claim and a mine belonging to 
other claimants, which was shown to adjoin plaintiif's mine^ as 
tending to identify the plaintiff's mining claim and its location on 
the ground. 

APPEAL from a judgment of the Superior Court of Tu- 
olumne County and from an order denying a new triaL O. 
W. Nicol, Judge. 

The facts are stated in the opinion of the court 

F. W. Street, for Appellants. 

J. B. Curtin, for Respondent. 

SHAW, J. — This is an action by the plaintiff for a decree 
determiDing the title to a certain mining claim situated in the 
town of Groveland, and known as the Rhode Island Mining 
Claim. Judgment in the court below was given for the plain- 
tiff ; the defendants' motion for a new trial was denied, and 
from the judgment and order the defendants appeaL 

The plaintiff claims title to the mining claim under a min- 
ing location originally made in the year 1854, by one Reid« 
and relocated by Reid and one Austin January 1, 1876. The 
plaintiff obtained a conveyance of the mine from Reid and 
the successor of Austin in 1896. The defendant James de- 
raigns his title from the patent issued for the townsite of 



Dec. 1903.] Callahan t;. James. 293 

Groveland under the federal laws (U. S. Rev. Stats., sees. 
2387, et seq.), and a deed from the patentee of the townsite to 
Laurence Murray, dated September 5, 1879, purporting to 
convey to Murray lot 8 of block 6, as designated on the ofiS- 
cial map of the townsite, of which lot the mining claim is a 
part. The date of the original entry of the townsite was 
October 3, 1877, and the patent was issued February 10, 1886. 
It appears from the findings that the mining location was 
duly made on January 1, 1876, by Beid and Austin, and that 
their title became vested in the plaintiff March 26, 1896. 

1. The appellants claim that the decision is against law, 
because there is no finding that at the time of the entry of the 
townsite in 1877, or at any time thereafter, the land embraced 
in the mining claim was known to contain minerals of such 
extent and value as to justify expenditure for the purpose 
of extracting them, citing in support of the proposition that 
this is necessary Richards v. Dower, 81 Cal. 44; Smith v. 
HiU, 89 Gal. 122 ; Lindley on Mines, sec. 176 ; and a number 
of decisions of the United States supreme court. These de- 
cisions, however, are not applicable to the case as shown by 
ihe findings. At the time of the entry of the townsite, in 
1877, section 2329 of the U. S. Revised Statutes (U. S. Comp. 
Stats. 1901, p. 1549} relative to townsite entries provided that 
"no title shall be acquired, under the foregoing provisions 
of this chapter, to any mine of gold, silver, cinnabar, or 
copper, or to any valid mining claim or possession held 
under existing laws." It will be observed that this section 
prevents the townsite entry from carrying title to two classes 
of mining claims. The first class need not be characterized 
by possession in any person. It is sufficient if in fact the 
property is a known mine of gold, silver, cinnabar, or copper. 
It is to this class of mining claims that the decisions above 
cited refer. They are in effect that it is not sufficient that 
there be in fact a mine of gold, silver, cinnabar, or copper, 
unless at the time of the townsite entry it is known to be 
such. The other class of mining claims referred to in this 
section consists of any valid mining claim or possession held 
under existing laws. The claim under consideration in this 
case belongs to this class. The court finds that Reid took 
exclusive possession of the mining claim in the year 1854, and 
discovered valuable gold-bearing quartz-roek in place thereon 



294 Callahan v. James. [141 CaL 

in sufficient quantities to justify exploration and develop- 
ment, and did thereafter continue to hold, work, operate, 
and develop the said mining claim in the manner required 
by law until he conveyed the same to the plaintiff, in 1896. 
It therefore appears that at the time of the townsite entry, 
and at all times since, the claim in question was a valid min« 
ing claim and possession held under existing laws. In this 
class of cases it is immaterial whether the claim was known to 
contain minerals of sufficient value to justify exploration or 
not. 

There is no finding that since the relocation in 1876 the 
claim has been kept alive by doing the assessment-work re- 
quired. This omission, however, cannot affect the case. The 
statement on motion for new trial shows that there was no 
evidence given which would justify a finding that there had 
been a failure to do the assessment-work. Where there has 
been a valid location of a mining claim, and possession has 
been maintained thereunder, the fact of a failure to do the 
assessment-work necessary to hold the same is a matter of 
defense. It constitutes in law a forfeiture of the title, or 
right of possession, and, as is the rule generally in respect to 
forfeitures, the burden of proving the facts which constitute 
it rests upon the party asserting it. {Emerson v. McWkirter, 
133 Cal. 515; Harris v. Kellogg, 117 Cal. 489; Quigley v. 
Oillett, 101 Cal. 462 ; Hammer v. Garfield etc. Co., 130 U. S. 
291.) The failure to find upon the facts in issue constituting 
8 defense to an action will not justify a reversal, unless it is 
shown that there was evidence given from which such facts 
could be found. {Himmelman v. Henry, 84 Cal. 104; Wise 
v. Burton, 73 Cal. 175; Winslow v. Gohransen, 88 Cal. 450; 
QUetti V. Saracco, 110 Cal. 428; Klokke v. EscaUler, 124 CaL 
297; Stewart v. Hollingsworth, 129 Cal. 180.) As a matter 
of fact, the statement here shows that there was abundant 
evidence from which the court might have found that the 
assessment-work had been regularly done from year to year 
from the first location of the mine until the time of beginning 
this action, and none to the contrary. So much the more, 
therefore, would the rule apply that the failure to find this 
fact would not invalidate the judgment. 

2. It is claimed by the appellant that the finding that 
valuable gold-bearing rock had been discovered upon the mine 



Dec. 1903.] Eauffman v. Qbies. 295 

prior to the application for the townsite patent is not sus- 
tained by the evidence. We have examined the record and 
£nd that there is sufficient evidence on the subject to sustain 
the finding to that effect. 

3. The court did not err in overruling the objection to the 
question put to one of the plaintiff's witnesses whether or 
not the same vein that ran through the Rhode Island Mine 
also ran through the Mount Jefferson Mine. It was in evi- 
dence that the two mines joined, and the fact that the same 
vein ran through both mines was of some assistance in identi- 
fying the mining claim and its location on the ground. 

We do not consider it necessary to mention other and minor 
points contained in the brief. They would not be of suffi- 
cient importance to justify a reversal of the casey even if it 
was conceded that the court erred therein. 

The judgment is affirmed. 

Angellotti, J., Van Dyke, J., McFarland, J., and Lorigan, 
J.y concurred. 



[L. A. Noa. 1121, 1090. Department One.— December 10, 1903.] 

PA EKE W. KAUPFMAN et al., Members of San Buena 
Ventura Lodge, F. and A. M., Appellants and Respond- 
ents, V. JACOB K. GRIES, Respondent and Appellant 

Estates of Dbckased Persons — Construction of WniL--GABx of 
Burial Lot bt Masonic Lodob — Devise to Husband — Precatory 
Words — Trust. — ^Where a wife devised land to her husband in fee 
simple, with an expression of '* desire" and "request" that he 
should eonvey it to a Masonic lodge, ''in such manner and at such 
times as he may deem best/' and that he should out of the rents, 
issues, and profits of other land devised to him for life invest the 
sum of one thousand dollars in some satisfaetorj seeuritj and trans- 
fer the same to the said lodge, and that such conveyance and trans- 
fer should be made in such manner as to impose the obligation upon 
the lodge to care for her burial lot; and where the will also pro- 
vided that, in ease of the death of her husband before her own 
death, the land devised to her husband "in fee simple, with the re- 



296 Kauffman v. Gbos. [141 Cal. 

quest that it be eonveyed to the Yenturm Lodge/' wms derised to 
her executoTB in trust for the same purpose, — the trust so ereated, 
taken in eonneetion with the devise to the husband, indicates that 
the precatory words accompanying the deyise to him were not in- 
tended to import a trust or charge upon the land in his hands, such 
as could be enforced in a court of equity. 
Id. — Dkgrbe of Distbibutiom — EBBONions Judgmxnt. — ^There Is no war> 
rant in the will for a judgment in favor of the lodge for one 
thousand dollars against the husband of the testatrix; and where 
the decree of distribution of her estate distributed the land to the 
husband, without imposing any charge thereon, and also distributed 
one thousand dollars to the lodge, under the conditions contemplated 
by the will, the rights of the lodge are limited l^ such decree; 
and a judgment for said sum in favor of its members against the 
husband must be reversed. 

APPEAL from part of a judgment of the Superior Court 
of Ventura County and from an order denying a new trial, 
and cross-appeal from another part of said judgment W. S. 
Day, Judge, presiding. 

The facts are stated in the opinion. 

Blackstock & Ewing, and Toland & Andrews, for memben 
of Ventura Lodge. 

The will created a trust chargeable against the husband 
in equity, to which the decree of distribution is no bar. 
{Colton V. Colton, 127 U. S. 300-322; Griffith v. Oodey, 113 
U. S. 89; Olivas v. Olivas, 61 Cal. 382; CurtU v. ScheU, 129 
Cal. 208;^ Oolson v. Dunlop, 73 Cal. 157; Ouerrero v. Bat- 
lerino, 48 Cal. 119; Sohler v. SohUr, 135 Cal. 331; Aldrich 
y. Barton, 138 Cal. 220 ;« Silva v. Santas, 138 CaL 536.) 

Barnes & Selby, for Jacob K. Ories. 

The decree of distribution is conclusive of the rights of the 
parties. {Ooad v. Montgomery, 119 Cal. 552, 553 ;» Matter 
of Trust of Trescony, 119 Cal. 568; WMiam HM Co. v. Law- 
ler, 116 Cal. 359; JeweU v. Pierce, 120 Cal. 79; McKensi* 
V. Budd, 125 Cal. 600; Toland v. Earl, 129 Cal. 148, 152.*) 
Tlie trust, if created, was for a perpetuity, and void. (Batei 



1 79 Am. St. Bep. 107. i 63 Am. St. Bep. 145. 

tM Am.St.Bep.iS,uidiioto. 4 70 Am. 8t Bep. KM. 



Dec. 1903.] Eauffman v. Obubs. 297 

V. Bates, 134 Mass. 110;* note to Rhymers' Appeal, 39 Am. 
Rep. 789.) The precatory words did not create a trust or 
charge in equity in this case. (2 Pomeroy's Equity Juris- 
prudence, sec. 1014; Knight y. Knight, 8 Beav. 148; Orth v. 
Orth, 145 Ind. 184.*) 

GRAY, C. — ^This suit was brought hy and on behalf of 
the members of San Buena Ventura Lodge, No. 214, Free 
and Accepted Masons, to compel the defendant to comply 
with the terms of the last will and testament of his deceased 
wife, and to conv^ to said lodge certain real estate and one 
thousand dollars in money, in accordance with the terms of 
said will. The judgment was in defendant's favor as to the 
real estate, and plaintiff's favor as to the thousand dollars. 
Both parties appeal. The plaintiffs' appeal is taken from 
the portion of the judgment against them, and from an order 
denying them a new trial, and the defendant's appeal is taken 
from that portion of the judgment relating to the thousand 
dollars. 

We will dispose of both appeals in one opinion, first con- 
sidering the appeal of the plaintiffs. 

The plaintiffs predicate their rights to the real estate in 
controversy upon the theory that the will declares a trust in 
their favor in said real estate. The will, so far as necessary 
to be quoted for the purpose of both appeals, is as follows: — 

''First, I direct that after my death my remains shall be 
buried in my burial lot in the Springfield Cemetery in Ven- 
tura County, state of California, where are buried my father, 
mother and children. . . . 

"I also give and bequeath and devise to my said husband 
all that portion of my real property in Ventura County, 
California, lying on the east side of the Saviers road, and 
north of the row of gum-trees and more particularly de- 
scribed as follows, to wit: . . . containing 99.58 acres, as 
shown upon map of my real property made by George C. 
Power in June, 1895. 

"It is my desire and I hereby request my said husband to 
convey in such manner and at such times as he may deem best, 
under contract or otherwise, the said above-described 99.58 



14S Am. Bep. 806. '57 Am. St. Bep. 185, 203, and note. 



298 Kaufpman v. Okies. [141 CaL 

acres of land to Ventura Lodge, No. 214, A. P. & A. M., 
of the town of San Buena Ventura, California, or to trustees 
for its use and benefit in such manner as to impose upon said 
lodge or the trustees thereof the obligation to properly care 
for, protect, and maintain in good order the cemetery lot in 
said Springfield Cemetery in which I may be buried. All 
the rest, residue, and remainder of the real estate of which 
I may die possessed wheresoever situate, I hereby give, be- 
queath, and devise to my said husband, Jacob E. Gries, for 
life, with remainder over to the persons herein below named, 
giving to my said husband for the term of his natural life 
the use, possession, rents, issues, and profits of all the said 
land with remainder over as follows, to wit : — 

**Out of the rents, issues, and profits of the land herein- 
before devised to my said husband for life, I request him to 
invest the sum of one thousand dollars in some satisfactory 
security and transfer the same to the Ventura Lodge, No. 214, 
A. F. & A. M., of San Buena Ventura, California, under 
a contract with said lodge that so much of the income or 
principal as may be necessary shall be used by said lodge 
for the proper care, repair, and maintenance of the burial 
lot in Springfield Cemetery in which my remains shall be 
interred. 

''And all of the rest, residue, and remainder of the estate 
of which I may die possessed, of whatsoever kind or nature, 
or wheresoever situate, I give, bequeath, and devise to my 
well-beloved husband, Jacob K Qries, making him my resid- 
uary legatee herein." 

The will goes on to provide that in case of the death of 
her husband before her own death, all that portion of her 
real estate ** herein specifically devised to my husband in fee 
simple with the request that it be conveyed to the Ventura 
Lodge," is devised to the executors of her will **in trust, 
however, for the following purposes, to wit: "As soon after 
my decease as practicable, the said executors as such trustees 
shall convey said real property to said lodge under a con- 
tract from said lodge to carry out my wishes as hereinbefore 
expressed regarding the care of my burial lot in said Spring- 
field Cemetery; and in the event that such contract cannot 
be legally made, then the said executors as such trustees 
shall have full pow^ of sale and disposition of said real 



Dec. 1903.] Eauffman v. Gribs. 299 

estate are hereby directed to sell the same, and the proceeds 
arising from the sale of said real estate shall be used by my 
executors as such trustees for the same purpose as said real 
estate was intended to be used as hereinbefore expressed." 

We are of the opinion that it was the firm desire of the 
maker of this will that her burial lot should be kept in repair. 
But we are equally well satisfied that it was not her purxKwe 
to bind her husband to that object in such a way that the 
trust and confidence which she reposed in him could be en- 
forced in a court of equity. If she outlived her husband, 
it was her purpose to charge upon her executors and her 
estate an enforceable trust for the care of her burial lot. This 
is plain from the language used in that connection. To her 
executors the devise was ''in trust, however, for the following 
purposes," etc. To her husband the devise is referred to 
by her as "all that portion of my real estate herein specifi- 
cally devised to my said husband in fee simple with the re- 
quest," etc. She did not mean the same thing in both these 
expressions. {Williams v. Williams, 2 L. R. Ch. Div. 12.) 
In the one instance she determined that her grave should 
be cared for as a matter of business; in the other she wanted 
all this to be left (with a mere suggestion) to those senti- 
ments which usually remain with the survivor of a happy 
matrimonial union. She doubtless thought that in the case 
of her husband surviving her she would take the chances of 
u neglected grave rather than attempt to bind him by the 
language of her will to do that which she would naturally 
regard as his duty without being so bound. 

**The cardinal rule for the construction of all wills is to 
ascertain the intention of the test-ator; and this intention is 
to be ascertained from the words of his will, taking into view 
when necessary or appropriate the circumstances under which 
it was made." {Estate of Marti, 132 Cal. 666; Civ. Code, 
sec. 1318.) 

It appears from the early decisions in England that any 
and every precatory word was laid hold of to create a trust, 
but the modem cases in that country and the better-con- 
sidered cases in America have gone the other way, and the 
rule in California has been laid down that the ordinary and 
natural import of the words used will be followed ** unless 
a dear intention to use them in another sense can be col- 



300 Eauvfman t;. Obibs. [141 CaL 

lected and that other can be ascertained." {Estate of Marti, 
132 Cal. 666; Civ. Code, sec. 1324; Shaw v. Lawless, 5 Clark 
& P. 129; WUliams v. WiUiams, 2 L. E. Ch. Div. 12; Pea- 
nock's Estate, 20 Pa. St. 268;^ Hess v. Singler, 114 Mass. 
G6.) In Story's Equity Jurisprudence (vol. 2, sec. 1069), 
Judge Story says: "The doctrine of thus construing ez- 
I>ressions of recommendation, confidence, hope, wish, and de- 
sire into positive peremptory commands is not a little difficult 
10 be maintained upon sound principles of interpretation of 
the actual intention of a testator. It can scarcely be pre- 
sumed that every testator should not clearly understand the 
difference between such expressions and words of positive 
direction and conmiand ; and that in using the one and omit- 
ting the other he shotdd not have a determinate end in view. 
It will be agreed on all sides that where the intention of the 
testator is to leave the whole subject as a pure matter of 
discretion to the good will and pleasure of the party enjoying 
his confidence and favor, and where his expressions of desire 
are intended as mere moral suggestions to excite and aid 
that discretion, but not absolutely to control or govern it, 
there the language cannot and ought not to be held to create 
a trust. Now, words of recommendation and other words 
precatory in their nature imply that very discretion as contra- 
distinguished from peremptory orders, and therefore ought to 
be so construed unless a different sense is irresistibly forced 
upon them by the context. Accordingly, in more modem 
times a strong disposition has been indicated not to extend 
this doctrine of recommendatory trusts; but, as far as the 
authorities will allow, to give to the words of wills their 
natural and ordinary sense, unless it is clear that th^ are 
designed to be used in a peremptory sense." 

According to the ordinary use of the English language, 
the words "desire" and "request" do not import a trust or 
charge. {Estate of Marti, 132 Cal. 666.) And there is 
nothing in the rest of the will to indicate that they were 
used in any other than their ordinary sense ; but, as we have 
already seen, there is an argument that they should be 
understood in their usual sense to be found in those portions 
of the will which contain apt language to create a trust that 



1 59 Am. Dee. 71S. 



Dec. 1903.] Kauppman v. Obies. 801 



might be enforced in the courts. {Williams v. Williams, 
2 L. B. Ch. Div. 12.) 

The above and foregoing is, perhaps, only one of several 
reasons why the judgment of the lower court as to the real 
estate should be affirmed ; but as it seems to be decisive of that 
branch of the case^ even if we were to admit the correctness 
of plaintiffs' other contention, we deem it unnecessary to 
discuss the other points urged in the brief. We are of 
opinion that the precatory words of the will, interpreted by 
the light of all the rest of the will, do not constitute a trust 
that should be enforced in a court of equity. It may properly 
be remarked that the final decree of distribution in the matter 
of the estate of the deceased wife awarded the real property 
in dispute absolutely to defendant. 

As to defendant's appeal from the part of the judgment 
to the effect that plaintiffs recover of and from him the sum 
of one thousand dollars, of course there is no warrant in the 
will or elsewhere for an unconditional money judgment like 
that. This will be readily understood from a reading of the 
portion of the will relating to the thousand dollars above 
quoted. There is nothing in the will even suggesting that the 
lodge shall have a thousand doUars in any way otherwise 
than under a contract that so much of the income and prin- 
cipal as may be necessary shall be used for the care, repair, 
and maintenance of the burial lot of deceased. 

As appears from a decree of distribution entered in the 
superior court of Ventura County, in the matter of the 
estate of Mary Selina Gries, a copy of which is attached to 
the complaint as an exhibit, the thousand dollars referred to 
was ordered distributed to "Ventura Lodge, No. 214," etc, 
under the conditions and as provided in the will. And as 
this was a matter altogether within the jurisdiction of the 
court making that decree (Toland v. Earl, 129 Cal. 148^), 
and the decree seems to give all that could be reasonably 
asked under the will in reference to this one thousand dollars, 
we think the lodge will have to content itself with what it 
was given in that decree. 

We advise that the judgment, so far as it relates to the real 
estate and the order denying plaintiffs a new trial, be 



179 Am. St. Bep. 100. 



302 AliBXANDBB t;. WSLCKEB. [141 CaL 

afSrmed, and that the money judgment for a thousand dollars 
and costs against defendant and in favor of plaintiffs be re- 
versed. 

Cooper, C, and Smith, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment, so far as it relates to the real estate and the order de- 
nying plaintiffii a new trial, is af&rmed, and the judgment 
for a thousand dollars and costs against defendant and in 
favor of plaintiffs is reversed. 

Angellotti, J., Shaw, J., Van Dyke, J. 



[Sae. No. 1007. Department Two.— Deeember 11, 1903.] 

JOHN K ALEXANDER, Respondent, v. KATY ADAEEt 
WELCKER, Appellant 

MOBTGAGK OF WiFB'S PBOPEBTT — JOINT EZBCUTION WITH HUSBAND 

YzRBAL Instructions to Husband — ^Deuvebt to Mortgagees. — 
Where a wife executed a mortgage of her property jointly with 
her husband, and delivered it to her husband to be deliyered to the 
mortgagees, but with instruetions to ezaet from the mortgagees a 
eertain promise before delivery of it to them, and he delivered it 
to them without exacting such promise, or informing them of her 
instructions, the completeness of the delivery to the mortgagees waa 
not affected by the wife's secret verbal instructions to her husband. 

J^ — MOBTQAOS FOB PUBCHASS MONEY — PUBCHASB OF LaND BT Son 

Part Payment— Estoppel. — ^Where the note and mortgage of the 
wife's property were executed by the husband and wife in further- 
ance of a proposed purchase of land by their son from the mort- 
gagees, who agreed to take the mortgage as part payment, upon 
delivery thereof by the husband as one of the mortgagors, the mort- 
gagees were justified in closing the contract of purchase, and when 
they did so the wife is estopped from denying the delivery of the 
mortgage. 

APPEAL from a judgment of the Superior Court of San 
Joaquin County. Joseph H. Budd, Judge. 



Dec 1903.] Ai^sxANDEB t;. Welgkbb. 

The facts are stated in the opinion of the court 

Adair Welcker, for Appellant. 

D. E. Alexander, for Respondent 

McPARLAND, J. — This is an action to foreclose a mort- 
gage. Judgment was for plaintiff against the defendant, 
Katy Adair Welcker, who appeals. The appeal is from the 
judgment, and is taken upon the judgment-roll alone; and 
no question can arise as to the sufficiency of the evidence 
to justify the findings. 

The note and mortgage sued on were executed by appellant 
and William T. Welcker, then her husband, who, before the 
commencement of this action, died. The title to the mort- 
gaged premises was in the appellant alone. After the mort- 
gage had been duly signed and acknowledged by appellant 
and her husband, it was given by the husband to the mort- 
gagees, Wilhoit and Devendorf. Appellant admits in her 
answer that she gave the note and mortgage to her husband 
to be delivered to the mortgagees; but she avers that she 
instructed him that before the delivery he should exact from 
them a promise to do certain things, and should not deliver 
them without such promise. The court finds that she exacted 
the said promise from her husband as to the delivery of the 
note and mortgage; but that ''she intrusted the same to said 
William T. Welcker, and that he never at any time informed 
Baid Wilhoit and Devendorf, or either of them, of his said 
promise to said defendant, nor did he ever inform them, or 
either of them, concerning the exaction made by her of him 
aforesaid, and neither of them ever at any time had any 
notice or knowledge thereof, nor did they, or either of them, 
ever promise or agree," etc. Upon these facts appellant con* 
tends — and this is the main contention in the case — ^that 
there was no legal delivery of the mortgage to the mort- 
gagees; but this contention cannot be maintained. She au- 
thorized her husband to deliver the mortgage, and the com- 
pleteness of the delivery was not affected by any secret verbal 
instructions which she may have given him. The note and 
mortgage were given in furtherance of a proposed contract 
between a son of appellant and the mortgagees, by which the 



304 Pkoutt t;. Abaics. [141 GaL 

former was to buy a certain tract of land from the latter, 
who had agreed to take the mortgage here sned on as part 
payment of the purchase money; and when the mortgage 
contemplated, duly signed and acknowledged, was deliyered 
to them by one of the mortgagors, they had the clear right to 
take it and close the contract for the purchase of the land, 
as they did. Under the circumstances, the appellant is 
clearly estopped from denying the deliyery of the mortgage. 

There are no other points made by appellant which ean 
be maintained or which need special notice. 

The judgment appealed from is affirmed. 

Lorigan, J., and Henshaw, J., concurred. 



[Bac. Ko. 981. Department Two. — ^Deeetnber 11, lOOS.] 

S. PBOUTY, Appellant, v. ROBERT ADAMS et al., Re- 
spondents. 

liANDLOBD AND TkNAMT— NOTE TOB BKNT— LlTIOATXD TiTUB — ^INDKM NTTT 

— OoNSTBUcnoN OF OONTRA.OT. — ^A eontraet of indenmitj givean by 
a landlord to hia tenants eontemporaneooBly witli an absolute note 
given by them to him, payable on or before a fixed date^ in a sum 
eertain^ agreeing ''to follj indemnify them in the payment" of the 
note, which is described as given "in lien of rent of a certain 
piece of ground containing one hundred acres more or less, and now 
in litigation," etc., is to be construed in connection with the note^ 
which it is contemplated shall be paid according to its terms, and 
the indemnity is against loss to the tenants in ease plaintiff should 
lose the title. 

Id.— AcnoH upon Notx— Dkfknss Inconsistimt with OoNraAcr. — ^In 
an action upon the note, no defense can be interposed which is in- 
consistent with the contract of indemnity, and a defense that ths 
note was to be paid only on a contingency which had not arisen, 
such as that defendants would not be required to pay the note unless 
it was established in court that the plaintiff was the owner of the 
land, ''and that it was not established," is not tenable. 

Id. — Parol Evn>xNGB — ^Umcebtain Oontimoknot— Indxmnitt AiOAiNSV 
Double Burr — Oonsistxnct with OoNTaAOT. — The eontimet of is* 
demnity being nneertain as to eontingeney, parol eTidenee is ad* 



Dee. 1903.] PftotJir v. Abaics. 805 

uiflsible to show that it wbs intended to indemnify the tenants 
against loss arising from the payment of double rent, if the land- 
lord 's title shonld prove invalid, as snch eyidenee is eonsistent with 
the terms of the eontraet; but parol evidenee is not admissible 
to vary the written eontraet by showing that the note was not to 
be paid at all ezeept upon the happening of a certain eontingency. 

APPEAL from a judgment of the Superior Court of San 
Joaquin County and from an order denying a new trial 
Joseph H. Budd, Judge. 

The facts are stated in the opinion of the ooort 

B. C. Minor, for Appellant 

Prior to the payment of the note, the defendants can 
neither plead as a defense nor sue upon the contract of indem- 
nity. (Civ. Code, sec. 2778, subd. 2; Rogers v. KimbaU, 121 
Cal. 254, — concurring opinion.) All oral negotiations were 
merged in the written contracts, and parol evidence is not 
admissible to vary them or add to their terms. (Civ. Code, 
sec. 1625; Ooldman v. Davis, 23 Cal. 256; Nicholson v. 
Tarpey, 89 Cal. 620; Harrison v. McCormick, 89 Cal. 330.*) 

Avery C. White, for Respondents. 

Parol evidence is admissible to show breach of a contract 
constituting the consideration of the note, and to show that 
the note was delivered to take effect upon a condition pre- 
cedent, which has not taken place. {BiUings v. Everett, 52 
Cal. 661; Jefferson v. Hemti, 103 Cal. 630; Howard v. 
Siration, 64 Cal. 487; Schulte v. Noble, 77 Cal. 79; 1 Daniel 
on Negotiable Instruments, sec. 81, and cases cited.) 

HBNSHAW, J. — This action is upon a promissory note 
executed to plaintiff by defendants, in tenor and terms as 
foUows: — 

"Apr. 23d, '95. 

"On or before October the first, nine-five, for value reed., 
we, or either of us, promise to pay to S. Prouty, or order 
three hundred and fifty dollars with interest at one per cent 
per month after due and in case suit is commenced to collect 

laS Am. 8t. B€p. 469. 

GZLL cu.— ao 



306 Pbouty v. Adams. [141 CaL 

any part thereof we agree to pay reasonable amount for at- 
torneys fees for collection." 

Contemporaneously with the execution of this note plaintiff 
executed to defendants the following contract: — 

•'EiiUOTT, April 23d, '95. 

''I hereby agree to fully indemnify Robert and H. Adams, 
in the payment of a certain promissory note, given to me for 
$350.00 and even date, in lieu of rent of a certain piece of 
ground containing 100 acres, more or less, and now in litiga- 
tion between Charles Quiggle and myself. 

(Signed) **S, Peouty." 

In their answer defendants were permitted to set up as a 
defense the following matters: That they were the tenants 
of plaintiff in the occupancy of certain farming land; that 
while in such occupancy one Bay served notice upon them 
that he was the owner of the land, with a demand that all 
rents therefor be paid to him. Defendants immediately in- 
formed plaintiff of this notification and demand. Upon the 
day of the execution of these contracts plaintiff told the de- 
fendants that there was an action pending between himself, 
as plaintiff, and Bay and others, as defendants, that 
it would be to his (plaintiff's) advantage in the coming 
trial if the defendants, in lieu of rent, or the paying of 
rent, would give to him their promissory note, and that de- 
fendants would not be required to pay the note ** unless it 
was established in said court that he, the plaintiff, Simon 
Prouty, was the owner of said land." Induced solely by these 
representations, the defendants executed the promissory note, 
and in return received the contract of indemnity hereinabove 
set forth. Defendants further allege that the action was tried 
and resulted in a judgment in favor of the defendants 
therein, and that plaintiff has not established in that court 
that he was the owner of the lands or any part thereof. 

Over the objection of plaintiff, the court allowed this de- 
fense, and upon the trial found in accordance with its alle- 
gations, and judgment passed for defendants. The right of 
the defendants to urge such a defense is the principal ques- 
tion here argued. 

The action upon the promissory note being by the payee 
against the makers, all legitimate defenses were available. 



Dec, 1903.] Pboutt v. Adams. 307 

If the promissory note was the only written contract between 
the parties, it would unquestionably be the right of defend- 
ants to show lack of consideration, the true consideration, 
that the note was to be collected only upon a contingency 
that had not arisen, or any other like defense. But, with 
the written contract of indemnity in existence, the rights of 
the defendants in this regard are limited by that, and they 
cannot interpose any defense at variance with the terms of 
that instrument Beading the promissory note with the con- 
tract of indemnity, it is beyond controversy that it was in 
the contemplation of the parties that the note was to be paid 
upon October 1, 1895. The note so states, and the contract of 
indemnity is an agreement to indemnify the makers ''in the 
payment'' of the note. They could not be indemnified in the 
payment unless payment were actually made. The defense 
here interposed was a defense which allowed them to show 
that their note was not to be paid at all, excepting upon a 
certain contingency; whereas their written contract plainly 
expressed the agreement that it should be paid when it be- 
came due, and that upon contingencies arising after the pay- 
ment, the plaintiff would indemnify the defendants to the 
extent of the payment In other words, by the terms of the 
written contracts, the defendants bound themselves to pay 
this promissory note when it became due. Plaintiff, in turn, 
bound himself, after such payment, to indemnify the defend- 
ants to the extent of the payment, if certain contingencies 
arose. As to what those contingencies were, the contract of 
indemnity being uncertain, resort might be had to parol evi- 
dence, but that is very different from a resort to parol evi- 
dence to show, in conflict with the very terms of the writing, 
that the note was not to be paid at all, except upon the hap- 
pening of certain contingencies. 

By the undisputed testimony, the defendants were tenants 
of plaintiff. They feared that they might be compelled to 
pay double rent in the event that Prouty's title to the land 
should prove invalid. Over this there is no dispute. The 
testimony of plaintiff from this point on is in consonance, and 
not at variance, with the terms of the writing. It is to the 
effect that he accepted the promissory note, payable upon a 
specified date, in lieu of rent, agreeing, in the event that de« 
fendants should ever be called upon to pay rent to others, that 



308 CuBTm V. Salmon Biveb etc. Ck>. [141 Cal. 

he would indemnify them to the extent of their payment to 
him. This is a rational and understandable contract, and 
quite in accord with the writings of the parties, while the de- 
fense interposed, as we have said, is at utter variance with the 
terms of their written agreement. Plaintiflf had the unques- 
tioned right to enforce the payment of the promissory note 
according to its tenor. If there be uncertainty as to the con- 
ditions upon which the defendants would be entitled to reim- 
bursement after payment, parol evidence would be admis- 
sible, and the trial court would be justified in receiving evi- 
dence upon that point. But since the defendants could not 
suffer loss so as to require indemnification, unless in f^ct they 
paid their note, it would be the absolute destruction of the 
terms of the contract to entertain the defense which was 
pleaded. 

The judgment and order appealed from are therefore re- 
versed and the cause remanded, with directions to the trial 
court to strike out, or otherwise refuse to entertain, the spe- 
cial defense above adverted to. 

McFarland, J., and Lorigan, J., concurred. 



[Sac. No. 990. Department Two. — ^December 11, 1903.] 

B. A. OUBTIN, Bespondent, v. SALMON BIVEB HT- 
DEAULIC GOLD MINING AND DITCH COMPANY, 
Appellant 

CX)aPOBATioNS — ^Invaxid Exxoutxon of Notb and Mobtgags — ^Batdioa- 
TION. — Where a note and mortgage of a corporation were both 
invalid because not authorised at a meeting of the board of di- 
rectors duly assembled, the requirements of the law for ratifying 
the note and the mortgage are essentially different. The mortgage 
can only be authorized or ratified in writing in conformity with 
law; but authority to execute the note may be oral, and its execu- 
tion may be ratified in acts in pais. 

Id.— rAOTS Showing Batifioation of Notb— Estopfbl In Pais.— 
Where the transaction of the note and mortgage was fully entered 
upon the books of the corporation, notice of the note was imparted 
to it; and where, with such notice, it receiyed and retained the 
beneftts of the loan erideneed by the note, and witli knorwledg*^ 



Dec. 1903.] CuBTiK v. Salmon Biveb etc. Co. 309 

and hy long-eontiiniad nlenea^ aequieBcad in the eontraet, and never 
attempted or offered to rescind it, nor to restore the eonsideration, 
it most be held to have ratiHed the note, and an estoppel in pais 
is raised bj its oondnet to dispute the enforcement of the note 
against it. 
Jp, — Sepab^ti AonoK ufov Non — Judokxkt in Fosbclosubb Suit 
NOT ▲ Bab. — ^A judgment in a former suit to foreclose an invalid 
mortgage, whieh fiftiled because the security was held to be void, 
is not a bar to a separate action on the note, in which the note is 
shown to have been ratified bj the conduct of the corporation. 

APPEAL from a judgment of the Superior Court of Tu- 
olumne County and from an order denying a new trial. 
Joseph H. Budd, Judge presiding. 

The main faets are stated in the opinion of the court ren- 
dered in the foreclosure suit, Curiin v. Salman River etc, Co., 
130 Cal. 345.^ Further facts as to ratification of the note 
sued upon are stated in the opinion of the court in this case. 

J. P. O'Brien, for Appellant. 

The note was absolutely void, for want of a quorum to act 
upon the resolution, exclusive of the interested director to 
whom it was given. (Curtin v. Salmon River etc. Co,, 130 
Cal. 345, 349 ;i Bassett v. Fairchild, 132 Cal. 637.) It was 
also void because given to a director. (Civ. Code, sees. 2229, 
2230; San Diego v. Sa^i Diego etc. Ry. Co,, 44 Cal. 106; 
Andrews v. Pratt, 44 Cal. 317; WUbur v. Lynde, 49 Cal. 290,-* 
Davis V. Rock Creek etc. Co,, 55 Cal. 359;' Shakspear v. 
Smith, 77 Cal. 640;* Smith v. Los Angeles etc. Assn., 78 Cal. 
289 ^ Finch v. Riverside etc. Co,, 87 Cal. 601 ; Wickersham v. 
Crittenden, 93 Cal. 29 ; Sim^ v. Petaluina Gas Light Co., 131 
Cal. 659.) The judgment in the foreclosure suit is a bar to 
the present action. {Reed v. Cross, 116 Cal. 484; Freeman v. 
Bamum, 131 Cal. 386.«) 

J. B. Curtin, for Respondent 

A note by an agent of any principal or corporation may 
be authorized orally. (1 Daniel on Negotiable Instruments, 



ISO Am. 8t. Bep. 132. 4 n Am. St. Bep. 837. 

s 19 Am. Rep. 645. • 12 Am. St. B«p. 53. 

tse Am. Bep. 40. » S2 Am. St. Bep. 355. 



310 CuBTiN V, Salmon River bto. Co. [141 Cal. 

sec. 274; 1 Parsons on Bills and Notes, p. 101; 1 Waterman 
on Corporations, sec. 30; Oreig v. Riordan, 99 Cal. 322; 
Crowley v. Oenesee Co., 55 Cal. 273.) Where an oral 
authorization is sufficient to create an agency, the agency will 
be ratified by accepting or retaining the benefit of the act, 
with notice thereof. (Civ. Code, sec. 2310; Bensiek v. 
Thomas, 68 Fed. 104; MUU v. Boyle Mining Co., 132 Cal. 
95, 98; Phillips V. Sanger Lumber Co., 130 Cal. 431; Seeley 
V. San Jose Independent MiU etc. Co., 59 Cal. 23, 25.) The 
only point determined in the former suit to foreclose the 
mortgage was the invalidity of the security, which prevented 
a foreclosure. The question of the ratification of the note 
was not in issue, and was not passed upon in that suit. {Cur- 
tin V. Salmon River etc. Co., 130 Cal. 345.*) The law of the 
case does not apply where the facts are different. (Heidi v. 
Minor, 113 Cal. 385.) 

HENSHAW, J. — ^This was an action upon a promissory 
note executed by the corporation to Thomas W. Wells, one of 
its directors, and by him assigned after maturity to plaintiff 
herein. An action was prosecuted by this plaintiff to fore- 
close a mortgage given by the corporation to secure the note. 
The decision of this court upon that action will be found 
reported in the 130th volume of our Reports, at page 345. 
That opinion contains all of the facts pertinent to the present 
consideration. It was there held that the mortgage was void. 
But while the note and the attempted mortgage were executed 
at the same meeting of the board of directors, and were thiis 
both voidable at the election of the corporation, the require- 
ments of the law for validating such an instrument as a mort- 
gage are essentially different from those pertaining to the like 
validation of a promissory note. Thus, in Curiin v. Sdlm^on 
River etc. Co., 130 Cal. 345,* above quoted, it is pointed out 
that a mortgage to be effective must be made by the board of 
directors. But, under the provisions of the act of 1880, the 
consent of two thirds of the stockholders is requisite to its 
validity. The stockholders are thus made a component part 
of the power to make a mortgage effective, but cannot by any 
act of their own make a mortgage or validate one that has 



t so Am. St. Bep. HSL 



Dec. 1903.] CuBTiN v. Salmon Biveb etc. Co. 311 

not been previously authorized and executed by the board of 
directors. The authorization to execute a mortgage must be 
in writing (Civ. Code, sec. 2309), while authority to execute 
a note may be oral. (1 Daniel on Negotiable Instruments, 
sec. 274.) The law touching the validation of a promissory 
note irregularly issued by a corporation, and invalid in its 
execution, is set forth in PhiUips v. Sanger Lumber Co,, 130 
Cal. 431, a case in principle almost identical with the one 
under consideration. There, as here, the action was upon a 
promissory note invalid in its execution; there, as here, the 
plaintiff claimed a ratification ; there, as here, the corporation 
received the benefits of the loan evidenced by the note ; there, 
as here, with knowledge, and by long-continued silence, ac- 
quiesced in the contract, and never attempted or offered to 
rescind ; and there, as here, there is in the answer of the cor- 
poration no offer to restore the consideration. This court, 
in holding that the corporation was bound by its specific 
contract under the doctrine of ratification, said: **Nor will 
the result be changed if we assume that there was no author- 
ity originally for the execution of the note. An agency may 
be created by subsequent ratification, as well ad by precedent 
authority (Civ. Code, sec. 2307) ; and where an oral authori- 
zation would suffice for conferring an agency, it will be rati- 
fied by accepting or retaining the benefit of the act with 
notice thereof. (Civ. Code, sec. 2310.) The case here comes 
clearly within these provisions. Oral authority is sufficient 
to create an agent to execute a note or notes (1 Daniel on 
Negotiable Instruments, sec. 274) ; and this is equally true 
in the case of corporations as of natural persons. (Water- 
man on Corporations, sec. 30 j Oreig v. Riordan, 99 Cal. 322; 
Crowley v. Oenesee Co,, 55 Cal. 273.) The transaction in this 
case was fully entered in the books of the defendant, and no- 
tice thus imparted to it. (1 Waterman on Corporations, 480; 
Holden v. Hoyt, 134 Mass. 184.) After such notice it re- 
tained the consideration of the transaction, and thus accepted 
its benefits. It must therefore be held to have ratified the 
transaction." 

This language, mutatis mutandis, is directly applicable 
to the case at bar. It would, perhaps, be more technically 
accurate to say that an estoppel in pais was raised by the 



312 CuBTiN t;. Salmon Biveb bto. Ck>. [141 CaL 

conduct of the corporation against the enforcement of the 
note, rather than that it had formally ratified it. (.Blood v. 
La Serena L. and W. Co., 113 Cal. 221.) But as the legal 
effect is the same, it can here matter but little by what name 
it be called. 

Except for this ratification or for this estoppel, it is un- 
questionably true that plaintiff could not enforce the contract 
evidenced by the promissory note, since it would in no sense 
have been the contract of the corporation. And in such cases, 
as the authorities all hold, the recovery of the plaintiff must 
be, not on the express contract, which is invalid or void, but 
for money had and received, quantum meruit, quantum vale- 
bat, or indebitattLs assumpsit, as the facts may warrant. But 
here the cause of action is directly upon the promissory note 
originally invalid, but made valid by the conduct of the cor- 
poration. Such an action is itself sustainable under all of the 
authorities dealing with like facts. We have already cited 
PhiUips V. Sanger Lumber Co. as being directly in point. 
There may be added from our own state, UnderhiU v. Santa 
Barbara, 93 Cal. 306; San Diego v. Pacific Beach Co., 112 Cal. 
61; Illinois Trust etc. Bank v. Pacific By. Co., 117 Cal. 332; 
Oribble v. Columbus Brewing Co., 100 Cal. 71 ; and Blood v. 
La Serena L. and W. Co., 113 CaL 221; and elsewhere 
reference may be made to Bensiek v. Thom,as, 66 Fed. 104; 
Witter V. Grand Rapids Flour U%a Co., 78 Wis. 543; Hotel 
Co. V. Wade, 97 U. S. 13; Union Pacific By. Co. v. Chicago, 
etc., 51 Fed. 326. 

It is further contended that by reason of plaintiff's former 
action to foreclose the mortgage, and his failure therein, by 
reason of the decision against the validity of the mortgage, 
he is estopped from prosecuting this action, and that the 
former judgment is a bar. It is to be noticed, however, that 
the decision itself in the former case limits its applica- 
bility strictly to the question of the mortgage lien, saying: 
''Whether the defendant would be estopped from contesting 
the claim of the plaintiff to recover the moneys advanced to it 
by him is not here involved. The plaintiff seeks by this action 
the sale of the defendant's property in payment of the note 
held by him, but unless the defendant has created a lien upon 
the property, the plaintiff cannot maintain the present action 
for compelling its sale.'' The question there presented was 



Dec. 1903.] CuBTiN v, Salmon River etc. Co. 313 

one addressed to equity for the foreclosure of an alleged hen 
created upon real property. In an action to foreclose a mort- 
gage the mortgaged premises constitute the primary fund out 
of which the debt is to be paid^ and a personal judgment can 
only follow after the exhaustion of the security. The effect 
of that decision is, that there was not, and never had been, 
any security for the promissory note. In the present action 
the plaintiff seeks enforcement of the contract evidenced by 
a promissory note which is not, and never was, secured. 
That he is entitled to prosecute such an action, even though 
an abortive attempt was made to give security, is decided in 
Powell V. Patterson, 100 Cal. 236, where the plaintiff brought 
suit to foreclose a mortgage which was void. There was pre- 
tended security, but in fact no security at all, and this court 
held that as tiie mortgage sought to be foreclosed was void 
and of no effect, the plaintiff was entitled to a personal judg- 
ment upon the note. If in that case it was permissible for the 
court, in an action brought specifically to foreclose a mort- 
gage, to declare the security void and still render a personal 
jud^n^ient for the amount of the note, no reason can be per- 
ceived why a plaintiff in a separate action at law upon the 
note alone should not be entitled to his recovery. 

In conclusion, it may be said that if the ruling of the court 
in refusing to strike out certain parts of plaintiff's complaint 
was technically erroneous, it worked no possible injury to the 
defendant. The evidence was sufficient to establish knowl- 
edge and acquiescence upon the part of the corporation and 
its members. 

The judgment and order appealed from are affirmed. 

McFarland, J., and Lorigan, J., concurred. 
Hearing in Bank denied. 



314 Bank of Yolo v. Sperbt Flour Co. [141 CaL 



[Sac. No. 1033. In Bank.— December 11, 1903.] 

BANK OF YOLO, Respondent, v. THE SPERBY FLOUB 
COMPANY, Appellant. 

Action kOAissT OoRPoaATioN—VENUB— Place of PraroKMANCS of Ooh- 
TRACT. — A plaintiff suing a corporation upon a contract lias a right 
to commence tlie action in the coontj where the contract was made, 
or where it was to be performed. The contract is deemed to have 
been made in the county where the offer of one party was accepted 
by the other; and the place of performance, where none is expressly 
named, of a contract of the corporation to repay money advanced 
to it by the plaintiff bank, is at the bank where it can be found. 

Id. — General Buli as to Place of Pebfobmanoe.— In a suit upon the 
contract of a corporation where no place of performance is expressly 
stipulated, it ought to be held performable in the place where the 
circumstances, viewed in the light of pertinent code provisions, in- 
dicate that the parties expected or intended it to be performed. 

APPEAL from an order of the Superior Court of Yolo 
County refusing to change tho place of trial of the action. 
E. E. Gaddis, Judge. 

The facts are stated in the opinion of the court 

Qoodfellow & Eells, for Appellant 

E. R. Bush, for Respondent 

BEATTY, C. J.— The defendant is a California corpora- 
tion, ha\dng its principal place of business in San Francisco. 
This action was commenced in the superior court of Yolo 
County, to recover money alleged to have been advanced to 
the defendant at its request and upon its promise to repay 
the same on demand. The defendant at the time of appear- 
ing in the action demanded a change of the place of trial to 
the city and county of San Francisco, upon the ground that 
it had not been sued in the proper county. The motion, sub- 
sequently made in pursuance of this demand, was overruled, 
and this is an appeal from that order. 

The plaintiff had a right to commence the action in the 
oounty where the contract was made or where it was to be 



Dec. 1903.1 Bank of Yolo v. Spbrbt Flour Co. 315 

performed. (Const., art. XII, sec. 16.) But appellant con- 
tends that the evidence upon which its motion was submitted 
dearly showed that the contract, if any contract was ever 
made, was neither made in Yolo County nor to be performed 
there. What the evidence does show is, that the cashier of 
plaintiflE at Woodland, in Yolo County, called up the agent of 
defendant at Sacramento by telephone, and in effect offered 
to advance a certain sum of money to the purchaser of a lot of 
wheat (said to have been purchased for account of defendant) 
if defendant would agree to honor his draft for fourteen hun- 
dred dollars. To this proposition the agent of defendant 
answered by telephone that they would honor the draft. The 
plaintiff then advanced to the purchaser of the wheat the 
money which it seeks in this action to recover, and drew upon 
defendant for the fourteen hundred dollars, which draft was 
duly honored. 

The question we have here to decide is not whether the evi- 
dence upon which the motion was submitted was sufficient to 
establish an agreement to repay to the bank the money ad- 
vanced to the purchaser of the wheat. That is an issue which 
must await the trial of the cause. We have only to determine 
whether the contract alleged, if made at all, was made in Yolo 
County, or, if not made there, was to be performed there. 

We are inclined to hold, upon the facts stated, that in legal 
contemplation the contract was made in Sacramento County. 
A contract is supposed to be made at some place, and the 
place where it becomes complete is the place where it is made. 
If a contract is made by exchange of letters or telegrams, it 
is held to have been made at the place where the letter is 
mailed, or telegram filed, containing an unconditional accept- 
ance by one party of the offer of the other. If the communi- 
cations are oral, either with or without the telephone, between 
parties on opposite sides of a county line, the same principle 
would seem to require that the contract should be deemed to 
hhve been made in the county where the offer of one is ac- 
cepted by the other — ^in this case in Sacramento. 

But if the contract was to be performed in Yolo County, the 
action was rightly commenced there, wherever it was made, 
and we think the place of performance was in Yolo County. 
The plaintiff is a banking corporation doing business at 



816 Matter of Cabter. [141 Cal. 

Woodland, the county-seat of Yolo, and a promise to re- 
pay money advanced by it — ^no other place of payment being 
stipulated — ^must be deemed a promise to pay at its bank, the 
only place where it can be found. This, we think, is a reason- 
able deduction from the provisions of the Civil Code (sees. 
1488, 1489), in regard to the place where an oflfer of perform- 
ance may be made; a conclusion not affected by the decisions 
construing the attachment law, in which it is held that a con- 
tract for the direct payment of money is not *' payable in 
this state'' within the meaning of that law, unless made so 
payable in express terms. (See Eek v. Hoffman, 55 Cal. 501 ; 
Dulion V, Shaton, 3 Cal. 207.) 

In a suit upon the contract of a corporation, where no 
place of performance is expressly stipulated, it ought to be 
held performable in the place where the circumstances, viewed 
in the light of pertinent code provisions, indicate that the 
parties expected or intended it to be performed. 

Upon these considerations, we think the order of the su- 
perior court should be aflSrmed, and it is so ordered. 

McParland, J., AngeUotti, J., Van Dyke, J., Shaw, J^ and 
Lorigan, J., concurred. 



[L. A. No. 1149. Department One.— December 18, 1903.] 

In the Matter of the Application of E. J. CARTER for Writ 
of Certiorari. 

PuBUC Omcx— Absence of Pbopebtt Right — Poblxo Aokkct — ^TRmi- 
NATION BT SovEBBiGN PowKB. — The right to hold a public offiee 
18 not a species of property protected by the proyisions of the eon- 
Btitntion of the United States that no person shall be deprived of 
property without due process of law. A public office is a mere pub- 
lic agency, which may be terminated by the sovereign power which 
created it, and the incumbent has no private property in the office 
which the sovereign power must respect. In a eontroveraj aa to 
the right of removal therefrom. 

Cd. — Conditions or Incuhbknoy and Removal. — In creating an office 
the government can impose such limitations and conditions with in- 
spect to its duration and termination as may be deemed beaty and 



Dee. 1903.] Matteb of Carter. 317 

the incumbent takes the offiee eubjeet to the eonditions which ac- 
company it. It may always be tenninated in such manner and 
by such means as are prescribed by the law which created it, 
whether it proyides for a removal for cause, upon notice, hearing, 
and a judicial proceeding, or summarily and without a hearing. 
Ii>. — Test or Bight to Judicial Inquibt. — The incumbent of an office 
has no constitutional right to a judicial inquiry and decision upon 
removal; and if he is removed in strict accordance with the law, 
it is no objection to the validity of the removal that it was done 
without notice or inyestigation, if the law does not require it. The 
question whether the proceeding for removal is judicial in character 
depends on whether or not the proceeding prescribed by the law is 
or is not of that description. 

Id.— Bbmoval bt Mayor umdb Chabtkb "Fob Causb''— Subsiquxmt 
NoncB — ^BncoTAL hot Judicial — Cebtiorabl — Under a city char- 
ter giving to the mayor a power of appointment, and a power to 
remove "for cause" any person holding office by his nomination 
or appointment, and requiring a subsequent written notice thereof, 
stating the cause to the person removed, and immediate notice to 
the council of his action and the reasons therefor, the exercise of 
the power of removal so given does not iuTolve judicial functions, 
and the propriety of the removal cannot be reviewed upon certio- 
rari. 

ID^— Efrct or IicFBOFEK Bbhoyal— Othxb Bemedies— Nugatory Act. 
— ^If there is an unlawful attempt to exercise the power of re- 
moval, other equally efficient remedies are available to the officer. 
The prescribed mode must be pursued, or the act will be nugatory. 
If no cause is assigned, or no notice given, or if the cause is, in 
law, no cause, the attempt to remove will be ineffectual, and may 
be ignored by those interested. 

APPEAL from a judgment of the Superior Court of San 
Diego County. N. H. Conklin, Judge. 

The facts are stated in the opinion of the court 

Stearns & Sweet, for Appellant. 

J. Wade McDonald, J. S. Callen, and A. Euef, for Re- 
spondent. 

SHAW, J. — ^This is an appeal by the petitioner from a 
judgment of the superior court of San Diego County in favor 
of the respondent. The proceeding was in certiorari, to re- 
view the order of the respondent, Frank P. Prary, as mayor 
of the city of San Diego, removing the petitioner from the 



818 Mattbb of Carter. [141 CaL 

office of fire commissioner of the city. By the terms of the 
charter the fire commissioner is appointed by the mayor, sub 
ject to confirmation by the board of delegates, and holdr 
office for the term of four years. (Stats. 1889, p. 720.) The 
mayor is given power to remove for cause any person holding 
office by his nomination or appointment (Stats. 1889, p. 
661.) 

The respondent makes the preliminary objection that in 
making the order of removal the mayor was not exercising 
judicial functions, but was acting in his executive capacity, 
and hence that his action cannot be reviewed on certiorariy 
which lies only to review the proceedings of a tribunal, board, 
or officer exercising judicial functions. (Code Civ. Proc, sec 
1068.) 

The authorities on the question whether or not the removal 
of a public officer for cause necessarily involves the exercise 
of judicial functions are very conflicting. Numerous de- 
cisions can be found on each side of the question. In Mechem 
on Public Offices (sec. 454) it is said: ''Where the appoint- 
ment or election is made for a definite term, or during good 
behavior, and the removal is to be for cause, it is now clearly 
established by the great weight of authority that the power of 
removal cannot, except by clear statutory authority, be exer- 
cised without notice and hearing"; and the authorities are 
practically uniform that, where such notice and hearing is 
necessary to the lawful exercise of the power, the proceeding 
is judicial or quasi-judicial in character. 

An examination of the decisions on this side of the question 
shows that in the great majority of the decided cases the 
power of removal could be exercised under the law in force 
only by a proceeding which involved a notice to the officer and 
the hearing of a charge as a condition precedent. There are 
some cases, however, holding that where the statute prescribes 
no preliminary proceeding, but authorizes a removal "for 
cause," there must be a notice and hearing, and that in such 
cases the proceeding is judicial. {State v. Donovan, 89 Me. 
451 ; Andrews v. Board, 94 Me. 76 ; State v. Walhridge, 119 
Mo. 383;^ McGregor v. Supervisors, 37 Mich, 389; Merrick 
V. Board, 41 Mich. 630; Hayden v. Memphis, 100 Tenn. 582; 
State V. Council, 53 Minn. 242;* Markley v. Cape May, 55 

' 141 Am. 8t Bep.663. 1 89 Am. 8t Bep. 695. 



Dec. 1903.] Matter op Carteb. 319 

N. J. L. 105.) The basis of these decisions, sometimes ex- 
pressly stated, but always apparently assumed, is, that the 
right to hold public office is a species of property which is 
protected by the provisions of the United States constitution 
declaring that no person shall be deprived of property with- 
out due process of law, and that no law shall be passed im- 
pairing the obligation of contracts. This proposition is as- 
sumed without argument. There is no doubt that it is er- 
roneous. A public office is a mere public agency created by 
the people for the purpose of the administration of the neces- 
sary functions of organized society, and the agency may at 
any time be terminated by the power which created it. As 
between the office-holder and individuals in their private 
capacity, and perhaps as against any authority except the 
sovereign power itself acting in pursuance of a power of 
removal expressly reserved or necessarily implied from the 
nature of the office, the officer is entitled to the full protection 
of the law in his right to hold the office practically to the same 
extent as if it were private property. But here we have a 
controversy between the office-holder and that functionary of 
sovereignty who is invested with the power of removal, and 
the question is whether or not the officer has a right to the 
office which the sovereign power which conferred it must re- 
spect as private property. The authorities are uniform that 
in such a controversy the office has not the characteristics of 
property. (Throop on Officers, sees. 345, 346, subds. 17, 18, 
19 ; Connor v. Mayor, 5 N. Y. 296 ; S. C, 2 Sand. 369 ; Nichols 
v. McLean, 101 N. Y. 533 ;i Hoboken v. Gear, 27 N. J. L. 273; 
Kenny v. Hudspeth, 59 N. J. L. 322; State v. Council, 53 
Minn. 242 ;« Donahue v. County of WUl, 100 lU. 94.) In the 
case last cited the court says: **It is impossible to conceive 
how, under our form of government, a person can own or have 
title to a governmental office. Officers are created for the ad- 
ministration of public affairs. When a person is inducted 
into an office, he thereby becomes empowered to exercise its 
powers and perform its duties, not for his, but for the public 
benefit. It would be a misnomer and a perversion of terms 
to say that an incumbent owned an office, or had any title to 
it . . . The officer does not own the title to the office in 



154 Am. Bep. 7S0. S89 Am. St Bep. 606. 



820 Matter of Cabter. [141 GaL 

the manner that men own property; but by his oommission or 
induction into office he acquires the legal right to exereiae its 
functions until the end of his term, or until his resignation, 
removal, or its forfeiture." 

It logically follows from these principles that in creating 
an office the government can impose such limitations and con- 
ditions with respect to its duration and termination as may be 
deemed best, and that in such a case the incumbent takes the 
office subject to the conditions which accompany it. It may 
always be terminated in such manner and by such means as 
are prescribed by the law which created it The law may 
provide that a removal can be made only for cause, and after 
a notice, hearing, and decision, which shall have all the attri- 
butes of a judicial proceeding, or it may provide that it shall 
be made only for cause, but summarily and without a hearing. 
In either case the officer takes with knowledge of the con- 
dition; and if he is removed in strict accordance with the 
law it is no objection to the validity of the removal to say 
that it was done without notice or investigation, where the law 
does not require it. He has no constitutional right to a judi- 
cial inquiry and decision. The question whether the proceed- 
ing is judicial in character, therefore, depends on whether or 
not the proceeding prescribed by the law is or is not of that 
description. 

In the present case the power of removal is given by the 
following section of the charter : — 

''The mayor shall appoint all officers whose election or 
appointment is not otherwise specially provided for in this 
charter or by law. He shall have power to remove, for 
cause, any person holding office by his nomination or appoint- 
ment; and in case of such removal shall give written notice 
thereof, stating the cause, to the person removed, and shall 
immediately notify the common council of his action and the 
reasons therefor." (Charter, art III, sec 7; Stats. 1889^ 
p. 661.) 

We do not wish to be understood as expressing any opinion 
as to the nature of proceedings for the removal of officers 
or public employees where the law requires charges to be 
made, followed by a notice to the officer and a hearing and 
investigation as to the charge, as a condition precedent to the 



Dec. 1903.] Matteb of Cabter. 821 

removal. In the case before us no such proceeding is re- 
quired In Hoboken v. Oear, 27 N. J. L., at page 286, the 
court, speaking with reference to a like power of removal 
vested in the common council, says: ''It is contended that by 
using the terms 'for cause may remove,' the legislature in- 
tended to erect the council into a kind of judicial tribunal, 
which could not get jurisdiction of the person without notice. 
Such could not have been their intent If they had so in- 
tended, they would probably have given some more provisions 
for its regulation, some provisions for serving notice, of com- 
pelling the attendance and swearing of witnesses; they would, 
at least, have used the usual terms in organizing such a tri- 
bunal. The expression is not 'for cause shown,' but simply 
'for cause.' ... It could never have been intended that up- 
on every complaint the council should, like the Senate of the 
United States, resolve themselves into a high court of im- 
peachment, to try whether or not a poundkeeper or a night 
scavenger had been guilty of malversation in office." The 
language of the section above quoted not only fails to require 
any hearing or proceeding, but also strongly implies that the 
removal shall be summary, and without any antecedent pro- 
ceeding. It requires that the mayor shall give to the officer 
removed a written notice thereof, stating the cause, and that 
a similar notice shall be given to the council. If a previous 
notice was necessary, and a hearing of the charges was re- 
quired, before a removal could be made, it would be absurd to 
require a subsequent notice to the same effect We are of 
the opinion that it was intended that there should be no pre- 
vious notice or hearing. The notice to be given afterwards is 
not for the purpose of enabling the officer in question to 
make a defense or offer evidence relating to the cause, but 
merely for the purpose of informing him thereof, and of 
making the same a matter of record. We are not inclined to 
hold that a power to remove without notice or hearing is a 
judicial function, particularly where the effect would be that 
this court, and the superior courts generally throughout the 
state, would be called upon practically to superintend the ad- 
ministration of the executive department in matters which 
often require the summary exercise of power without the de- 
lays of legal proceedings. Where no further proceedings 
are prescribed in the statute giving jwwer of removal than 
CXLL OU.— 21 



822 Matter of Carter. [141 CaL 

Buch aa are embraced in the section in question, it should not 
be held to constitute an exercise of judicial functions, but 
rather an act of the executive department of the state. 

'*A11 political, legislative, and ministerial boards and oflS- 
cers are constantly, and indeed perpetually, called upon to 
make decisions affecting the conduct of matters intrusted to 
them. They exercise their judgments in so doing, and they 
determine the existence or non-existence of facts. . . . Such 
decisions, however, are not judgments pronounced by a judi- 
cial tribunal." {Frasher v. Rader, 124 Cal. 134.) The fol- 
lowing cases hold that the power to remove an officer for 
cause is not judicial in character : Donahue v. County of WQl, 
100 111. 94; Connor v. Mayor, 5 N. Y. 285; State v. Hawkins, 
44 Ohio St. 98 ; Dongan v. District Court, 6 Colo. 534 ; Dakota 
V. Cox, 6 Dak. 510; Trimble v. People, 19 Colo. 196;* WOson 
V. People, 90 111. 204; People v. Higgins, 15 111. 110; State 
V. Johnson, 30 Pla. 433; Heffran v. Hutchins, 160 HI. 554;* 
and see Clay v. Stuart, 74 Mich, 411.* 

If there is an unlawful attempt to exercise such power, 
other equally efficient remedies are available to the officer. 
The prescribed mode must be strictly pursued or the act wiU 
be nugatory. If no cause is assigned, or no notice given, or 
if the cause is, in law, no cause, the attempt to remove will 
be ineffectual, and may be ignored by those interested. 

The case of People v. Supervisors, 10 Cal. 844, is cited as 
holding that proceedings to remove an officer are necessarily 
judicial in character. That case is clearly distinguishable 
from the one at bar. At that time an act of the legislature 
provided, as section 964 of the Political Code now provides, 
that the officer required to approve official bonds could, upon 
subsequent information as to the insufficiency thereof, require 
a new bond to be given, and for a failure to comply with such 
requirement could cite the officer to appear at a time specified 
and show cause why he should not be removed, and u]x>n 
such hearing could remove the officer if the new bond was not 
given as required after the hearing. The power to entertain 
these proceedings was lodged in the county judge. The county 
board of supervisors attempted to exercise the power, although 
the law did not give it to them. The court held that the 



141 Am. St. Bep. 2S6. >16 Am. 8t Bep MO. 

162 Am. St. B^. S53. 



Dec. 1903.] People v. Leung Ock. 823 

proceeding was quasi-judicial in nature, and that, as the 
supervisors had attempted to exercise the power in the ab« 
sence of any authority, it was clearly an attempt to exercise 
judicial power which they did not possess. The distinction 
between that case and this is, that in that case the express 
provisions of the law had prescribed a proceeding which had 
all the attributes of a judicial proceeding, and therefore it 
was declared to involve the exercise of judicial functions. 
In the case at bar, as we have seen, there is no such express 
provision, and the proceeding which is required cannot be 
declared to be an exercise of judicial functions. It follows 
from these considerations that the mayor was not exercising 
judicial functions in making the removal complained of, and 
hence that a writ of certiorari will not lie. This, as we under- 
stand it, was the conclusion of the court below, and we en- 
tirely agree with that conclusion. 
The judgment appealed from is aflbmed. 

Angellottiy J., and Van Dyke, J., concurred. 



[Grim. No. 1005. In Bank.— Deeamber 18, 1908.] 
THE PEOPLE, Respondent, v. LEUNG OCK, Appellant 

Cbiicinal Law— Mtjbdxb— SOiT-DiRNSS— Bvzdinob — ^Possxssion of 
MoKKT^ — Upon a prosecution for murder, where the defendant 
■ought to justify the kiUing upon a plea of self-defense, and the 
proeeeution sought to show that the deeeased had money in his 
cabin, and that defendant was in funds inunediately thereafter, 
and the defendant testified that the deceased had made a demand 
upon him for mon^, evidence is admissible to show that the de- 
fendant had used part of a Chinese company's money, as pertinent 
in the establishment of those matters; and it was neither the intent 
nor the effect 'of such evidence to hold the defendant before the 
jury as an embezzler. 

Id. — Tempxramxnt and Deheanor or Defendant. — Where it appears 
that the defendant visited the witness, it was proper to ask the 
witness as to his actual knowledge of the temperament of the de- 
fendant, — ^If Jovial, pleasant, talkative, or otherwise,— where it was 



324 People v, Leung Ock. [141 CaL 

proposed to follow the qaestion bj showing that hia demeanor niKva 
the viait he made after the homieide was different from that usoal 
to him. 

Ld.>-EZPLANATIOM of EVIDENOl AT PbEUIONA&T BZAMIKATION.— An 

objection that the court erred in refusing to allow the defendant 
to explain his reasons for giving different testimony at the pre- 
liminary examination from that given upon the trial was not ten- 
able, where the court merely sustained a proper objection as to 
whether he gave correct testimony at that other hearing, in advance 
of any testimony given by him at the trial, but he was anbae- 
quently allowed to explain and did explain fully that his testimony 
at the preliminary hearing was false, and that he testified falsely 
through fear. 

Id. — Objection to PaiUMiNABY Examination — ^Pubposs or Pbbsenci 
or iNTEBPRETsa. — ^An objection that there had been no valid pre- 
liminary examination, and that the interpreter thereat waa in court 
for the express purpose of prosecuting the defendant, was properly 
overruled, where, so far as the record discloses, there was a valid 
preliminary examination, and defendant admitted that he was in- 
formed thereat as to his right to counsel, and to have witnesses sub- 
poenaed and examined in his behalf, and, so far as the record dia- 
doses, the interpreter was not present in court for the purpose stated. 

APPEAL from a judgment of the Superior Court of Sis- 
kiyou County and from an order denying a new triaL J. 
S. Beard, Judge. 

The facts are stated in the opinion of the court. 

James D. Fairchild, for Appellant 

U. S. Webb, Attorney-General, and E. B. Power, Deputy 
Attorney-General, for Respondent 

HENSHAW, J.— The defendant was informed against for 
the murder of one Wing Ga in the county of Siskiyou, was 
tried and convicted of murder in the first d^n^ee, and the 
death penalty was imposed. He appeals from the judgment 
and from the order denying him a new trial. . The points pre- 
sented upon appeal are briefly stated by his counsel without 
argument and without citation of authority. They have, 
however, one and all, been carefully examined, and the con- 
elusion has been reached that they are without merit 



Dec. 1903.] People v. Leung Ock. 325 

1. It is asserted that the court erred is allowing Chong 
Chung to testify as to the defendant having used part of a 
Chinese company's money, and it is said that this testimony 
had a tendency to hold the defendant before the jury as an 
embezzler. Such, however, was neither the intent nor the 
effect of the evidence. The defendant admitted the killing, 
but sought to justify upon the plea of self-defense. From 
his own evidence it appears that the deceased had made a 
demand upon him for money. It was further sought to be 
shown by the prosecution that the deceased had money in his 
cabin ; that the defendant was penniless before the homicide, 
and was in funds immediately thereafter. In the establish- 
ment of these matters the question was pertinent. 

2. It is alleged that the court ''erred in allowing Wong 
Chu Quan to testify as to his conclusions as to the kind of 
a man defendant was. ' ' Here a citation is given to folio 268. 
No such evidence is found at this folio. Elsewhere in the 
record it appears that the defendant visited the witness, and 
the latter was asked as to the temperament of the defendant 
— if jovial, pleasant, talkative, or otherwise. It was ex- 
plained that the question went only to the witness's actual 
knowledge in this regard, and that it was proposed to follow 
this question by showing that his demeanor upon the visit he 
made after the homicide was different from that usual to 
him. The question was pertinent and permissible. 

3. Again it is asserted that the court erred in refusing to 
allow the defendant to explain his reasons for giving different 
testimony at the preliminary examination from what he 
gave upon the trial of the case. To this the answer is, that 
a question was asked of the defendant at the outset of his ex- 
amination as follows: *'Did you give correct testimony at that 
other hearing?" The objection was sustained to this, the 
court stating that it sustained the objection for the time be- 
ing. The ruling was manifestly proper, as at that point in 
the proceedings it did not appear what testimony the defend- 
ant was about to give. Later, however, he was allowed to ex- 
plain, and did explain fully, that the testimony which he gave 
at the preliminary hearing was false, and he was permitted 
further to explain the reason why he testified falsely, stating 
that he did so through fear. 



326 Mann v. Mann. [141 Cal. 

4. It is said that the conrt *' erred in allowing the defendant 
to testify as to the discrepancies between the testimony of 
defendant at the preliminary examination and at the trial, 
over our objection that there had been no valid preliminary 
examination, and that the interpreter at said examination, 
Fong Loon, was here for the express purpose of prosecuting 
the defendant." There is no citation to the record to sup- 
port any of these statements, and we have searched it in vain 
for their corroboration. So far as the record discloses, there 
was a valid preliminary examination ; so far as the record dis- 
closes, Fong Loon was not present for the express purpose of 
prosecuting the defendant; so far as the preliminary exam- 
ination is concerned, it appears from defendant's own state- 
ment that he was informed as to his right to counsel, and as 
to his right to have witnesses subpoenaed and examined upon 
his behalf. 

These being all the points presented for consideration, and 
an independent examination of the record disclosing no others 
meriting attention, the judgment and order appealed from are 
affirmed. 

Lorigan, J., Van Dyke, J., McFarland, J., Shaw, J., An- 
gellotti, J., and Beatty, C. J., concurred. 



[Sae. No. 987. Department T?ro. — ^December 16, 1903.] 

CATHERINE MANN, and ESTHER DURGAN, Respond- 
ents, V. SUSAN A. MANN et al.. Appellants; D, L. 
MANN, Intervener. 

Estate fob Lite or Gbaktor — Oonstbuction or Oomtract — Lkass — 
Geakt. — A contract between a mother and her son, by which, in 
conBideration of past care and attention, and on condition that the 
son shall supply her with necessaries and give her such care as 
her age and condition may require, ''so far as he is able to do so,'* 
she granted to him all of her personal property, and also aU of her 
interest in a homestead entry, with the right to cultivate or rcct 
the same during her life, and to prove up as sole heir to the laod 
after her death, is not a leaee, for want of a certain rent, and for 



Dec. 1903.] Mann v. Mann. 327 

want of validity as a lease of agrieultnral land, but is to be eon- 
straed as making to the son a grant of a freehold estate for the 
life of the mother. 
Ibw — Gbant in Fkb bt Tbnant k>b Lifs — ^Txkmination or Life Estatb 
—Grant bt Patentkb — Adykbsx Possession — ^Presowptive Title. 
— ^Where the tenant for life, claiming to be the absolute owner of 
the homestead under the contract, granted an estate in fee to one 
of the plaintiff S| under whom the other plaintiff claims, the posses- 
sion of the grantee of such estate, after the termination of the life 
estate, bj the death of the mother, became adverse to the grantee 
of the mother, who had herself obtained a patent for the home- 
stead and granted it to the testator of the defendants, and where 
such adverse possession was accompanied by the payment of all 
taxes upon the lands and was continuously hostile for the stat- 
utory period, it ripened into a prescriptive title, which the law will 
protect as against the defendants. 

APPEAL from a judgment of the Superior Court of 
Tuolumne County and from an order denying a new trial. 
Q. W. Nicol, Judge. 

The facts are stated in the opinion of the court 
F. W. Street^ for Appellants. 
J. P. O'Brien, for Respondents. 

McPARLAND, J. — ^This is an action to quiet title to cer- 
tain agricultural lands. Judgment went for plaintiffs, and 
from the judgment and an order denying a new trial defend- 
ants appeal. 

The plaintiff Esther Durgan claims an undivided half of 
the land in contest under a conveyance from the plaintiff 
Catherine Mann, executed a short time before the commence- 
ment of this action, and her right to recover depends upon 
the right of said Catherine. The court found that plaintiffs 
have title to the premises by prescription, and that "for more 
than five years before the commencement of this action the 
plaintiff Catherine Mann has been in the open, visible, noto- 
rious, adverse, hostile, exclusive, continuous, and uninter- 
rupted possession of all the lands, premises, and property de- 
Bcribed in the amended complaint herein"; that during said 
time she has *' occupied and claimed said land and premises 
aa of her own sole, separate, and indefeasible estate, and ex* 



828 Mann v. Mann. [141 CaL 

elusive of any other right or interest"; and that during said 
time she had paid all taxes on the land. These findings are 
fully justified by the evidence, which shows, indeed, that for 
more than twenty years continuously before the bringing of 
the action said plaintiff, and her predecessor, Daniel L. Mann, 
had held adverse possession of the land under claim of owner-' 
ship, unless they were estopped from asserting such adverse 
holding by reason of an alleged relation of landlord and ten- 
ant 

The facts upon which this alleged estoppel is based are 
these: On September 13, 1876, the land here in contest was 
United States public land, and one Sarah A. Mann had filed 
a homestead entry thereon, and on that day she executed to 
her son, Daniel L. Mann, the following instrument: ''This 
agreement, made this 13th day of September, A. D. 1876, 
between Sarah A. Mann, the party of the first part, and 
Daniel L. Mann, the party of the second part: Witnesseth: 
That for the consideration of the care and attention hereto- 
fore given by my son, the said Daniel L. Mann, and for the 
further consideration hereinafter set forth, the said party 
of the first part hereby grants to the party of the second 
part, all of her personal property, and hereby authorizes him 
to take immediate possession thereof; also all of my interest 
of, in or to the homestead right of the party of the first part 
of, in or to the land described in the certificate of homestead 
entry. No. 1903, of the receiver of the U. S. land office at 
Stockton, California, giving to my said son the right to culti- 
vate or rent the same or any part thereof during my lifetime, 
with full i)ower at my death to prove up on the same as my 
sole heir to said land, reserving herein the right to occupy 
and reside in the house on said land so long as I may live. 
This grant of the right to cultivate and lease the land during 
my lifetime is given on condition that my son shall supply 
the necessaries of life for me so long as I shall live, and give 
me such care as my age and condition may require, so far as 
he is able to do so. In witness whereof," etc. Upon the ex- 
ecution of this instrument, Daniel went into i>ossession and 
inclosed the land by a fence, and held it continuously until 
1890, undoubtedly believing that the land would be his ab- 
solutely after the death of his mother, and claimed it as his 
own. On December 17, 1890, Daniel, by deed, conveyed tho 



Dec. 1903.] Mann v. Mann. 329 

land in fee to his wife, Catherine Mann, plaintiff herein, who, 
as before stated, held and claimed the same absolutely under 
such deed. But Sarah A. Mann, notwithstanding her attempt 
by said instrument of September 13, 1876, to give Daniel the 
right to prove up on the homestead and get the government 
title after her death, herself made final proof on the home- 
stead entry, and on May 20, 1882, received a United States 
patent, conveying said land to her. Afterwards, on October 
12, 1885, she executed a deed to John F. Mann, purporting to 
convey him in fee all of said land. Afterwards, in December, 
1894, John F. Mann died testate, and devised said land to the 
defendants in this action, who claim under him. Afterwards, 
on October 4, 1892, Sarah A. Mann died. 

Now, the contention of appellant is, that under the fore- 
going facts the relation of landlord and tenant continuously 
existed from the date of the instrument of September 13, 
1876, to the commencement of this action; that such relation 
existed between Daniel and his mother, Sarah, and afterwards 
her grantee, John F. Mann, from 1876 to 1890, when he 
conveyed to the plaintiff Catherine; that such relation ex- 
isted continuously between Catherine, on the one side, and 
Sarah A. Mann until her death, and John F. Mann and his 
devisees, the appellants, on the other, from the date of the 
deed to Catherine and her possession until the commencement 
of this action ; and that, therefore, Daniel and Catherine, who 
are assumed to have been tenants, could not assert any claim 
to the land adversely to the other parties above named, who 
are assumed to have been the landlords. In our opinion, this 
position is not tenable. 

Most of the decisions touching the relation of landlord and 
tenant deal with a lease of the usual character, — that is, 
where there has been created an estate for years, called the 
**term'*; and the instrument here in question did not create 
an estate of that character. It was not a lease. It was sub- 
stantially a conveyance of a freehold estate for life, and the 
relation of the parties thereto was that of grantor and grantee 
— ^not that of landlord and tenant. It is true that where in a 
deed conveying an estate for life there is an express reserva- 
tion of rent, with a covenant by the grantee to pay it, the in- 
strument may for some purposes be treated as a lease. But 
lyy the instrument in question here an estate for life is created, 



830 Mann t;. Mann. [141 CaL 

in consideration of past kindness of the grantee to the grantor, 
and of the hazy and uncertain implied promise of the grantee 
that during the life of the grantor he will supply the latter 
with necessaries, and, ''as far as he is able to do so," will give 
her such care as her "age and condition may reciuire." In 
this promise there is no such element of certainty as is 
necessary to constitute rent, which is an essential part of a 
lease. What effect a failure of the grantee to comply with the 
condition named would have had upon his estate is not a 
question involved in the case. Moreover, it is provided in 
section 717 of the Civil Code that no lease of land for agri- 
cultural purposes for a period of more than ten years shall be 
valid. The instrument in question, therefore, could have no 
validity as a lease. It was valid as a conveyance of a freehold 
estate for life, or it had no validity whatever; and when the 
life estate terminated by the death of Sarah A. Mann, the re- 
mainderman or reversioner had the immediate right to pos- 
session, which he must have asserted within the statutory 
period of limitations. The plaintiff Catherine, having taken 
a conveyance in fee from the tenant for life, was not estopped 
from claiming adversely to respondents, or their testator, after 
the termination of the life estate. In Jackson v. Harsen, 
7 Cow. 323,^ Woodward, J., speaking for the court, having 
said that so long as the life estate continued there could be no 
adverse holding by the tenant for life as against the rever- 
sioner, proceeds as follows: "When that ceased, the right of 
entry accrued. If, after the termination of the life estate the 
reversioner permits the representatives of the tenant for life 
to hold, claiming as their own, beyond the time limited for 
bringing actions, the right to recover is gone. I consider this 
proposition as settled law." In Saunders v. Hanes, 44 N. Y. 
365, Gray, C, says: "It may be stated as a general proposi- 
tion that when the tenant for life has conveyed his estate in 
fee the possession will become adverse from his death (3 
Washburn on Real Property, 30)," and repeats the language 
used in Jackson v. Harsen, above quoted. In Miller v. Ewing, 
6 Cush. 34, Shaw, C, J., speaking for the court, says: "The 
right of the reversioners accrued at the death of the tenant 
for life in 1833, ... and the statute of limitations begins to 



117 Am. Dee. 517. 



Dec. 1903.] Estate op Melone. 331 

run from that time," citing Tilson v. Thompson, 10 Pick. 359. 
In Oemei v. Lynn, 31 Pa. St, 94, the court says : **The statute 
of limitations does not run against parties in remainder until 
after the death of the tenant for life who has aliened the 
fee." In MiUer v. MiUer, 129 111. 630, the court, speaking of 
a purchaser from the tenant for life, say: ''The possession of 
the purchaser is not, and cannot be, during the continuance of 
the life estate, adverse to the remainderman or reversioner, 
so as to set the statute of limitations running against such re- 
mainderman or reversioner; but after a life estate falls in, 
the possession will be adverse as to a remainderman or re- 
versioner." There are many other authorities to the same 
I>oint, but the foregoing are sufScient to be here cited. Our 
conclusion is, that resx)ondents were not estopped from as- 
serting the adverse possession found by the trial court, and 
that therefore the judgment was right. These views are 
determinative of the case, and there are no other phases of 
the discussion of counsel which call for special notice. 
The judgment and order appealed from are affirmed. 

Lorigan, J., and Henshaw, J., concurred* 



[8. F. No. 3643. Department One.— December 18, 1903.] 

In the Matter of the Estate of DRURY MELONE, Deceased. 
HENRY C. MELONE, Appellant, v. SARAH B. ME- 
LONE, Respondent 

ESTATBS OT DBCXASXD PkESONS — ^PbOBATE 07 WiLL — ^PUBLICATION OF 

Nonci OF Heaeing — ^Lboal ' * Nbwspapkel ' ' — The publication of the 
hearing of the notice of the probate of a will of a deceased person 
Is regulated bj section 1303 of the Code of Civil Procedure, which 
merely requires publication thereof ''in a newspaper of the coun- 
ty"; and the Recorder, a legal newspaper published in the citj and 
eounty of San Francisco, is a "newspaper of the eountj" within 
the meaning of that section. 

ISU — ^AOT DXFIinNO "NKWSPAFXB of QXNERAL CmCULATION'' — CONSTITU- 

noNAL Law — Titub of Aot^-Exolusion ow Lsoal Pboobbdings.-* 



332 EsTATB OF Melons. [141 Cal. 

The title of the act of March 26, 1903 (which adds eections 4458 
and 4459 to the Politieal Code, and providee for publieationa in a 
"newspaper of general eireulation/ ' and purports to define that 
phrase), is limited ezclusiyelj by its terms to pnbUeations made 
bj state officers, and commissioners and common councils, boards 
of trustees, or supervisors in counties, cities, cities and eounties, or 
towns; and the act is unconstitutional under article IV, section 
24 of the constitution, in so far as it attempts to include any other 
class of publications in the body of the act. The act is inapplicable 
to and excludes all publications made in legal proceedings in the 
various courts of this stata. 

APPEAL from an order of the Superior Coort of the City 
and County of San Francisco admitting a will to probate. 
J. V. Coffey, Judge. 

The probate of the will was contested on the ground that 
the publication of the notice of hearing was made in the Re- 
corder, a law journal and daily newspaper published in the 
city and county of San Francisco, and was insufiScient, on the 
ground that it was not made in a ''newspaper of general cir- 
culation." 

Stanley Moore, P. F. Dunne, and James H. Budd, for Ap- 
pellant. 

Chickering & Qregory, and Qarrett W. McEnemey, for Re- 
spondent. 

SHAW, J. — This is an appeal from an order admitting to 
probate the last will and testament of Drury Melone, deceased. 
The only point made upon the appeal is, that the notice of 
the time and place appointed for proving the will was not 
published in a newspaper of general circulation, according to 
the definition of such newspaper as given in section 4459 of 
the Political Code, a section added to that code by the legisla- 
ture of 1903. (Stats. 1903, p. 478.) Section 1303 of the 
Code of Civil Procedure provides, that when the petition for 
the probate of a will is filed the clerk of the court must set 
the petition for hearing upon some day, and must give notice 
of the hearing "by publishing the same in a newspaper of the 
county." It is admitted that the newspaper in which the 
notice in question in this case was published was a newspaper 



Dec. 1903.] Estate of Mblokjl 333 

of the ooonty within the meaning of this section, and that, 
unless section 4459 of the Political Code requires a newspaper 
of a different character, the publication was in all respects 
legaL 

We are of the opinion that in so far as section 4459 of the 
Political Code, purporting to define the meaning of the phrase 
''newspaper of general circulation," appears to be applicable 
to a publication made in the coiirse of proceedings for the 
probate of a will it is unconstitutional and void. The title of 
the act of March 25, 1903, is as follows : ''An act to add a new 
title to part IV of an act entitled, 'An act to establish a Po- 
litical Code,' approved March 12, 1872, to be known as title Y, 
regulating publications by state ofiScers and commissioners, 
common councils, boards of trustees, or supervisors, in coun- 
ties, cities, cities and counties, or towns." The title V thus 
enacted consists of two sections of the Political Code, num- 
bered respectively 4458 and 4459. Section 4458 is a^ follows : 
*' Whenever any publication, or notice by publication, or offi- 
cial advertising is required to be given or made by the provi- 
sions of this code, the Civil Code, the Code of Civil Procedure, 
the Penal Code, or by any law of the state, by any officer now 
existing, or any hereafter to be created, in tiiis state, or any 
political subdivision thereof, or by any officer of a county, 
city, city and county, or town, such publication or notice by 
publication, or official advertising, shall be given or made only 
in a newspaper of general circulation, where such a news- 
paper is published within the jurisdiction of said official." 
The title relates exclusively to publications made by state 
officers and commissioners, common councils, boards of trus- 
tees, or supervisors, in counties, cities, cities and counties, or 
towns. By the provisions of section 4458, above quoted, an 
attempt is made to provide regulations for publications re- 
quired by either of the codes, or by any law of the state, to be 
made by any officer now existing or hereafter created in this 
state or any political subdivision thereof. Thus it is at- 
tempted to include in the body of the act a large class of pub- 
lications which are not mentioned or referred to in the title. 
We are not disposed to be critical of the sufficiency of the 
title of an act where general terms are employed which are 
susceptible of subdivision into a large number of subordinate 
parts. But where the legislature sees fit, after employing gen- 



334 Estate of Melons. [141 GaL 

eral terms, to go further in the title and point out specifically 
the precise parts to which it is intended that the act shall re^ 
late, this limits the effect of the act to the subjects thus 
pointed out. Article IV, section 24, of the constitution de- 
clares: *' Every act shall embrace but one subject, which shall 
be expressed in its title. But if any subject shall be embraced 
in an act which shall not be expressed in its title, such act 
shall be void only aa to so much thereof as shall not be ex- 
pressed in its title." Section 4458 declares that the publi- 
cations there specified shall be made only in a newspaper of 
general circulation. The following section, number 4459, 
which defines what is meant by the phrase *' newspaper of gen- 
eral circiilation," of course refers to the publications de- 
scribed in section 4458, and is to be considered as intended to 
define what newspaper shall be sufficient in character to come 
within the definition of the term, as used in the preceding 
section. , In its application, therefore, section 4459 is limited 
by the effect of section 4458, and the definition of a news- 
paper embodied in section 4459 has no application except to 
publications lawfully required and regulated by section 4458. 
In so far as section 4458 is unconstitutional, section 4459 is 
inoperative. Under the provisions of the constitution above 
quoted, the effect of section 4458 is limited to the specific sub- 
jects expressed in the title, and the section is valid only with 
respect to publications made by state officers and commission- 
ers, common councils, boards of trustees, or supervisors, in 
counties, cities, cities and counties, or towns. And the effect 
of section 4459 is necessarily confined to the same classes of 
publications. This classification excludes all publications 
made in the course of legal proceedings in the various courts 
of the state, and as to such publications the entire act is void 
and inapplicable. Therefore, the contention of the appel- 
lant that the publication of the notice in question was not 
made in a newspaper of the character that would make it a 
legal publication is not well taken. 
The order appealed f ram is affirmed 

Angellotti, J., and Van Dyke, J., concurred. 

Hearing in Bank denied. 



Dec. 1903.] Moss v. Odell. 335 

[8ae. No. 1091. Department One.— December 19, 1903.] 

WILLIAM S. MOSS, Respondent, v. MATtY B. ODELL, 

Appellant 

MOBTGAOK— DBKD ABSOLUTS— POSSESSION OF MOBTGAGXS— AOOOUNTINO 

— GoiiPKMSATiONw — In an aetion by the mortgagor for an aeeount- 
ing and reeonyeyanee of property eonyejed to a mortgagee by deed 
absolute in fonn, intended as a mortgage^ the mortgagee in poe- 
■eesion ia not entitled to compensation. 

Id. — ^Itxms or Aooottmt— Momxtb Bsgxivxd to XJbx ow MbRTOAisoa^ 
MoNSTS DiSBUBSKD— Statxttb 07 LIMITATIONS. — Moneys reeeiyed 
by the mortgagee in possession to the use of the mortgagor, as the 
owner of the equitable interest, were properly chargeable to the 
mortgagee; and the mortgagee shonld haye been credited with 
moneys paid to the mortgagor and to his use. The statute of limi- 
tations as to the accounting only begins to ron from the last item 
charged on either side. 

I]>.— Patmsnt or NoTB or MoBTOAau to Mobtoaoob^-Appligation 
or Patmknts — Time or Advances. — Payments made by the mort- 
gagee to the mortgagor, without direction as to their specific appli- 
cation, are to be regarded as applied on a note of the mortgagee 
to the mortgagor which was due prior to the mortgage, and the ad- 
yances by the mortgagee under the mortgage must be regarded as 
commencing only upon the satisfaction of such note. 

Id.— Delivbby or Paid Notb Mobs than Fotjb Yeabs atteb Maturity. 
— ^The subsequent deiiyery of the satisfied note to the mortgagee 
more than four years after its maturity is without significance, so 
far as treating it as discharged by payments of the mortgagee ap- 
plied thereon is concerned. 

Id.— Bbjeotion or Gbedits — Qbbateb Ebbob m Inte&est— Appellant 
not Injxtbxd — ^ArriBMANGB or JuDOMENT. — ^Where the rejection of 
eredits which should haye been allowed to the mortgagee appellant 
were more than offset by an error in the interest account in fayor 
of the mortgagee, so that the result of a correct statement of the 
account would show a less indebtedness on the mortgage than that 
allowed by the court, the appellant is not injured by the result; 
and the judgment determining the amount of indebtedness secured 
by the mortgage will be affirmed. 

Id. — INTEBLOOUTOBY DbGBEE — BeFEBENOS — APTIBMANCE — PRINCIPLES 

NOT Fixed — Consent to Heabing by CJoubt— Bkview upon Appeal. 
— ^Where an interlocutory decree for an accounting affirmed by this 
eourt ordered a reference to take the account against a mortgagee 
in possession, but did not purport finally to determine the rights of 
the parties as to the rules or principles upon which the account was 
to be taken^ and by consent of the parties the reference was abaa- 



336 Moss V. Odkll. [1*1 CaL 



doned, and a hearing had by the judge, the matter and method of 
the accounting was thereby set at large, and the deeision of the 
court is subject to renew in this court. 
Id.— OoNsTOUCTioN OF Finding— Non-Patm«nt of Noi»— Ijdoai. Satib- 
FAcnoN.— A finding as to non-payment of the note from the mort- 
gagor to the mortgagee, taken in connection with the other &id- 
ings, is construed to mean that there was never any express appUca- 
tion of the advances as a payment thereon, and not that the note 
was not in fact satisfied by the legal appUcation of the monqr* 
advanced to the mortgagee as paymento thereon. 

APPEAL from a judgment of the Superior Court of San 
Joaquin County. Q. W. Nicol, Judge presiding. 

The facts are stated in the opinion, 

Louttit & Middlecoff, for Appellant 

Budd & Thompson, for Respondent 

SMITH, C. — ^This suit was brought against defendant in 
possession, under a deed from the plaintifiE to her, of date 
November 29, 1889, which, the complaint alleges, was intended 
as a mortgage. The deed was absolute on its face, but was 
accompanied by a written agreement, by the terms of which 
the deiendant agreed to reconvey to the plaintiff on the twen- 
ty-ninth day of November, 1894, if on or before that date he 
should have repaid to defendant all advances made by her for 
the benefit of plaintiff for taxes or assessments on the land 
conveyed or otherwise. The complaint prayed for an account- 
ing and reconveyance and for general relief. On a former 
trial the court found that the transaction was intended as a 
mortgage to secure the advances contemplated, and adjudged 
that at the date of the transaction the plaintiff was, and ever 
since has been, the owner of the land in question; that the 
defendant was a mortgagee in possession, and that an ac- 
counting was necessary to a final determination of the rights 
of the parties herein; which was ordered accordingly. The 
judgment was affirmed on appeal. {Moss v. OdeU, 134 CaL 
464.) The present appeal is by the defendant from a subse- 
quent judgment settling the account between the parties, and 
adjudging a balance against the plaintiff of three hundred 
ddlars, upon the payment of which he is to be l0t into pos- 



Dec. 1903.] Moss v. Odelu 337 

session ; otherwise the mortgage to be foreclosed. The points 
urged by appellant for reversal relate exclusively to the ,\c- 
coont; to which it is objected — 1. That defendant was im- 
properly charged with her note to the plaintiff for the sum of 
$3,409, of date June 2, 1887, payable two years after date, 
with ten per cent interest ; 2. That the sum of nine hundred 
dollars received by her for the sale of certain land, called the 
Butterick place, was also an improper charge; and 3. That 
she should have been credited with the sum of five hundred 
dollars paid to one Bullock, on a note for that amount made 
by the plaintiff to one William L. Moss, and the sum of two 
hundred dollars claimed to have been paid to plaintiff him- 
self, and also with a reasonable compensation for the care of 
plaintiff and his property. 

These objections, other than the first, may be briefly dis- 
posed of. The defendant, as mortgagee in possession, was not 
entitled to compensation. (3 Pomeroy's Equity Jurispru- 
dence, sec. 1217.) As to the items of five hundred dollars and 
two hundred dollars, it may bo assumed that they should have 
been allowed. As to the item of nine hundred dollars charged 
against her for money received from the sale of the Butterick 
place, this seems to be supported by her own evidence, which, 
we think, was not inconsistent with the fact that when the 
sale was made she held the title to that and other lands con- 
veyed to her by the plaintiff. Notwithstanding this, the 
plaintiff may have had an equitable interest, and if this was 
the case, the money was received by the defendant, as she says 
it was, for the use of the plaintiff. Nor can it be held that 
this or any other item of receipts or disbursements was barred 
by the statute. (Code Civ. Proc., sec. 844.) Otherwise, the 
defendant's right of action to foreclose would also be barred. 

This leaves us to consider only the defendant's note to 
plaintiff, which it is in effect found by the court — referring 
to the mortgage — ^was not delivered to the defendant ''at the 
time, or as part of the same transaction," but was ''received 
from" plaintiff by defendant, November 21, 1894, — that is to 
say, more than four years after it became due, at which time, 
it is claimed by the appellant, it was barred by the statute of 
limitations. But in fact the note had been satisfied in the 
year 1890, by payments made Mrs. Odell, without direction as 
CXLLCaL-~22 



Moss V. Odell. [141 CaL 



to their specific application, and hence to be regarded as 
applied on the note. (Civ. Code, sec. 1479, subd. 3.) This 
accounts for the subsequent delivery of the note to Mrs. Odell, 
which is therefore without significance. The advances by 
Mrs. OdeU under the contract of November 29, 1889, must 
therefore be regarded as commencing only upon the satisfac- 
tion of the note in 1890. 

In stating the account, as we have seen, the court disal- 
lowed the items of five hundred and two hundred doUars, 
which we have assumed should have been allowed, and also 
fifty dollars paid by Mrs. Odell as interest on the former item. 
But there is a countervailing error in favor of the defendant, 
which is, that she is allowed interest at eight per cent per 
annum upon all her advances, and charged with seven per 
cent only on her receipts, from their respective dates until 
the first day of February, 1902. But this is incorrect, both as 
to different rates of interest and method of computation ; for 
all moneys received by her operated when received to reduce 
the plaintiff's indebtedness to her pro taniOy thus reducing the 
interest-bearing principal. Upon this basis, allowing Mrs. 
Odell her rejected credits, and crediting to Moss her receipts 
at their respective dates, the result of a correct statement of 
the account will be to show that Moss's indebtedness to her 
(if there is any) is much less than that allowed by the courL 
She is therefore not injured by the result. 

We advise that the judgment appealed from be affirmed. 

Qray, C, and CJooper, C, concurred. 

For the reasons given in the foregoing opinion the judg- 
ment appealed from is affirmed. 

Shaw, J., Van Dyke, J., AngeUotti, J. 

The following opinion was delivered by the court in Bank 
upon denial of a petition for rehearing January 16, 1904 : — 

THE COURT.— The petition for rehearing is denied. The 
rules or principles upon which the account was to be taken 
and stated were not irrevocably fixed and settled by the 
iormer interlocutory decree, and the decision of this court 
affirming the same. {Moss v. OdM, 134 CaL 464.) That part 



Dec. 1903.] Habtlet t;. Ybbkillion. 339 

of the interlocutory decree does not of itself purport to finally 
determine the rights of the parties, but was a mere direction 
to the referee to take proof and report as to certain facts. 
The report was to be made to the court. The matter was still 
in fieri, and the court could at any time change the directions 
to the referee. In fact, however, the reference was 
abandoned, and by consent of the parties the evidence relating 
to the account was heard by the judge of the court below and 
the account was stated by him as part of the findings. This 
set the matter at large with respect to the interest to be al- 
lowed and the method of casting the account, and leaves it 
subject to review by this court on this appeal. 

Nor is there anything in the opinion upon the former ap- 
peal purporting to declare the law upon these points, or to 
affirm this part of the interlocutory decree. On the contrary, 
that opinion expressly left open the questions relating to the 
rules and principles upon which the account should be settled 
and the credits adjusted, thus in effect holding that the decree 
then before the court was not final in these particulai*s, and 
this, whether correct or not in principle, has thus become the 
law of the case. We construe the finding that the note for 
$3,409 was not paid, taken in connection with the other find- 
ings, to mean that there never was any express application of 
the advances as a payment, and not that the note was not in 
{act satisfied by the moneys advanced. 



[Sae. No. 951. In Bank.— Beeember 19, 1903.] 

ELIZA M. E. HARTLEY, Respondent, v. FRANK M. VER- 
MILLION, and FRANK H. BUCK, Appellants. 

PuBUO Highway — Obstbuction — Injunction. — ^Where it appears that 
a road elahned by the defendants as a private road was laid out 
or desi^ated by the parties through or across whose land it ran 
first, and has since been used by all persons who had occasion to 
pass that way, and became dedicated or abandoned to the public 
prior to the placing of an obstruction thereon by the defendants, 
this constituted it a highway, or public road, within the terms of 
the statute as well as at common law, and the defendants were prop- 



840 Habtlby t;. Yebmillion. [141 CaL 

«^ oijoined from obBtraeting or interfering therewitb, to the ia- 
faaj of the pUdntiif . 

to.— '^Pbiyati" and " Public '* Boads— Powni of Lbgislatukb — 
CLASSinaATiON or Hiohways.— The legislature has no power to lay 
ont "private" roads so as to make them the property of individuala 
or priyate ways at eommon law; but the road laid out as a "private 
road" becomes a publie way, over which all maj lawfully pass who 
have occasion. The distinction between "publie" and "private" 
roads is one merely of classification of highways. 

Id. — Prescriptive Ubb of Boad — Implzxd Dedication. — Where, aa in 
this case, the public, or such portion of the public as had occasion to 
use the road, traveled over the same without asking or receiving 
any permission, and without objection from any one, for the period 
of time beyond that required by law to bar a right of action, a 
right in the publie to the use of the road arises by prescription or 
implied dedication. 

Id. — Estoppel op Defendant. — ^Where one of the defendants sold to the 
plaintiff a strip of land along his north line for the purpose of a 
right of way from the plaintiff's premises to the road in question, 
as a means of reaching a public highway, such defendant is estopped 
from denying as against the plaintiff that there was a dedication of 
the road in question. 

APPEAL from a judgment of the Superior Court of Solano 
County and from an order denying a new trial A. J. Buck- 
les, Judge. 

The facts are stated in the opinion of the court 

Raleigh Barcar, and 0. B. Coghlan, for Appellants. 

M. A. Wheaton, L M. Ealloch, and George A. Lamont, for 
Respondent 

VAN DYEE, J. — ^This action was brought to declare a strip 
of land running north a mile and a quarter to a mile and a 
half from the county road in Solano County, commonly called 
the £. R. Thurber road, to the south line of defendant Ver- 
million's so-called home place, a public highway, and to re- 
strain defendants from obstructing the same. The answer 
denied that the so-called road or highway was a public road 
or highway, but averred that the same was a private road, the 
property of the defendants, in which the general public had 
DO interest whatever. The court found in favor of the plain- 



Dec. 1903.] Habtuby v. Vbbmiluon. 341 

tiflP, and entered judgment accordingly, and enjoined the de- 
fendants from obstructing or interfering with the said public 
road; from which judgment and the order denying defend- 
ants' motion for a new trial the defendants appeal. The main 
point on the appeal is the contention on the part of the de- 
fendants that the evidence does not sustain the finding of the 
court that the road in question is a public road and highway. 
The following is a summary of the evidence on the part of 
the plaintiff: William Lockie testified in substance that he 
had known the road in dispute eight or ten years, and has 
used it and seen others use it. He used it off and on for 
about ten years prior to 1898, and has been in the habit of 
traveling over the same since, and while traveling over the 
road no one ever objected. '*I never asked permission of Mr. 
Vermillion or Mr. Buck, or any one else, to travel that road." 
James Lockie, another witness for plaintiff, testified that he 
had known the road in dispute for eight years and had used 
it for about five years. *' When I traveled the road in dispute 
I never asked permission of any one. I didn't know I had to. 
. . . While traveling it I could see no difference between it 
and other roads which had been known to be county roads, but 
it was not quite as wide as others." E. A. Peabody, another 
witness for plaintiff, testified that he traveled the road, and 
that no objection was made to his doing so at any time, 
and he asked no one's permission to travel it. It was open, 
and people seemed to be going and coming, and he supposed it 
to be all right. Michael Farrell, also for the plaintiff, testified 
he had known the disputed road for about twenty years ; had 
been over it, he thought, before any of the land belonged to 
Mr. Buck (defendant). ''When I traveled the road no one 
objected to it, nor did I ever ask any one's permission to travel 
it It was not necessary, as it appeared to me." B. E. Bur- 
ron, also for the plaintiff, testified that he had been perfectly 
familiar with the road for about twenty-two years, and had 
used it whenever he wanted to. *'I have never asked any 
one's permission to use the road this side of Mr. Vermillion 'a 
I never asked any one's permission to travel the road be- 
tween Mr. Vermillion's upper place and E. R. Thurber road, 
and no one ever made an objection to my traveling it. I never 
asked any one's permission to travel over the disputed road 
prior to 1898. I did not ask permission, because those people 



342 Habtley v. Vermillion. [141 CaL 

traveled it, and we were doing just the same as other people 
were doing." James Burton testified similarly. I. K. Buck, 
also a witness for the plaintiff, testified he had been familiar 
with the disputed road about fifteen years, and resided on it, 
the second house from the B. R. Thurber road. It passes over 
his (the witness's) land. From the so-called Thurber road up 
to VermiUion's home place he thinks it is a mile and a half. 
He says: **No one ever objected to my traveling over any part 
of the disputed road, and I never asked permission to use any 
portion of it." William H. Buck, also for the plaintiff, testi- 
fied that he was familiar with the disputed road, and had been 
for something like eighteen years. He had used it as far as 
his place all that time. His place is on the disputed road, 
which runs across one end of his land about eighty rods. He 
says: **I never, in the use of this road, asked or received per- 
mission from any one to travel it, or any part of it. So far as 
it passes over my land, I never gave any one permission to 
pass over it. I never objected to any one going over, and do 
not recollect that any one ever asked my permission. I had 
no other way out to the Thurber road only this road." W. 
W. Smith, also for the plaintiff, testified that he is a resident 
of Vacaville, and had known the disputed road since 1859, 
traveling over it in the spring and summer of that year. "I 
never asked any one's permission to travel it." On cross- 
examination he admits that he got defendant Vermillion's per- 
mission to cross his upper place, but says he did not get any 
one's permission to travel the disputed road, which did not 
pass into or over that upper Vermillion place at all. It com- 
menced at the south line of Vermillion's upper place and ran 
south to the so-called Thurber road, which is admitted to be 
one of the public highways of that county. He says he ne^er 
knew of the public being prohibited from traveling that road 
until last summer, when the defendants put a gate across it to 
stop Hartley from traveling it. D. J. Parmelee, another wit- 
ness for the plaintiff, testified that he lived some distano^ 
north of the north end of the disputed road, and has known 
the said road for about nineteen years, and has traveled the 
same. "I never asked permission to travel over the disputed 
road before last summer. That was the time when the gate 
was put across it as already stated." Ralph H. Piatt, for the 
plaintiff, testified that he resided in Vacaville, and had trav- 
eled the road since May 1, 1874. "I never asked anybody's 



Dec. 1903.] Habtlet v. Vermillion. 343 

permission to travel over it. I did not think it was necessary. 
I thought it was a public road up until a little while ago, a 
little before last August, as I remember it, and there was 
never any objection made by any one to my traveling it." C. 
M. Hartley testified that he had been the agent for his mother, 
the plaintiff, and had traveled the disputed road for some 
fourteen years without any objection from any one, or with- 
out asking any one's x>ermission. The ranch, or place, of the 
plaintiff of which the witness acted as agent is to the east of 
defendant Vermillion's upper or home place, and prior to 
1895 he had been accustomed to pass through the defendant 
Vermillion's upper place, and thence down to the road in dis- 
pute. In December, 1895, he was served with a notice by Ver- 
million thereafter not to pass over said land. The notice 
says: ''The land referred to is situate in Vaca Township, 
Solano County, California, and is bounded on the north by 
land of Hatch, and on the east by land of Hartley, on the 
south by land of F. H. Buck, and on the west by land of F. B. 
McEevitt and land of F. H. Buck, and known as the Ver- 
million ranch or farm." This tract does not include any of 
the disputed road, but lies to the north of it. This witness 
also produced an agreement entered into between the plaintiff 
and the defendant Buck for the sale of a strip of land on 
the northerly line of defendant Buck's tract above referred 
to, for a right of way out to the disputed road to the 
south of the defendant Vermillion's gate, and south of 
the defendant Vermillion's tract described in the notice 
above. Part of the consideration of this strip for a right 
of way was the sale by plaintiff to Buck of about forty acres 
of land joining Buck's tract at a reduced price. In the deed 
conveying the strip in question the description runs along 
the north boundary-line of the said Buck ''to the center of a 
road used by said Buck and others," being the road in dis- 
pute, and in the agreement Buck agrees "to pay one half of 
the cost of bridges along the above-described right of way, 
and to fence the said right of way on the north side its en- 
tire length at his own cost and expense." There was quite a 
deep creek running southerly east of the road in dispute and 
between it and the Hartley tract, which it was necessary to 
bridge in order to make the strip purchased available as a 
means of reaching the road in dispute, which bridge cost 
between two hundred and fifty and three hundred dollara 



344 Hartley v. Vbbmiluon. [141 CaL 

He further testified that on the east side of the disputed road 
was a large gate-post which had been standing there for the 
past ten or twelve years, and that it had been used as a 
comer-post for the fences. The fence running along the north 
side of the Thurber road is nailed to it, and the fence on the 
east side of the disputed road is also nailed to it ; and on the 
west side of the road is also an old gate-post used in a similar 
manner. These two gate-posts at the entrance to the road in 
dispute are corner-posts of fences, and are about thirty feet 
apart, and never interfere with the travel on the disputed 
road. He says: **I never asked Mr. Buck's or anybody's 
permission to travel the disputed road at any time whatever; 
never conversed with anybody with reference to asking per- 
mission to travel that road during the whole period of four- 
teen years over which I have traveled it I always claimed the 
right to travel the disputed road the entire fourteen years 
that I traveled it. I paid about eighteen dollars towards 
fixing the roadway now in dispute. Before the shaling was 
done, I rode over the properties of W. H. Buck and I. BL 
Buck." Defendant Buck, in the fall of 1893, spoke to him 
of his desires of shaling the road along William Buck's and 
I. E. Buck's, and asked how much he thought he ought to 
contribute. ''And the upshot of it was I gave him eighteen 
dollars to assist in putting shale on that bad place." This 
was not as a consideration for traveling the road, but simply 
to aid in putting it in repair. ''I felt that whenever I traveled 
that road nobody ooiild stop me." Nothing transpired to the 
contrary until defendant Buck objected to his hauling, along 
just before the commencement of the suit in 1899, on account 
of the dust that his haxding created. The plaintiff testified 
that the preceding witness, Clement Hartley, was her son, 
and acted under her authority in the premises, and that he 
had been her agent attending to her business during the last 
fourteen or fifteen years. *'I never asked permission of Mr. 
Buck or Mr. Vermillion, or any one else, for mj'self, or my 
teams, or my employees, to travel the disputed road. Ob- 
jection to my teams or employees and agents in traveling 
the disputed road was never made to me." She testified: 
*'I would never have made the deed with Mr. Buck conveying 
him that land for the price I did, and accepted the conveyance 
of the right of way as part of the consideration, if I had not 



Dec. 1903.] Hartley v. Yermiluon. 845 

believed that by getting this right of way I was getting a free, 
open road all the way to Yacaville from my place. '^ On the 
part of the defendants, D. K. Com testified that he had been 
a supervisor of Solano County for eight years from 1884, 
and says: ''So far as I know, that road has always been 
traveled by the public generi^y. I have never known per- 
mission being given by the owners of the land over which the 
road runs to any one. I never asked permission.*' Also, 
for the defendants, E. N. Eager, who had been county sur- 
veyor of that county, testified that he knew the road, and while 
making a county map he put the disputed road on the map as 
a private xoad« Defendant Buck, who claims the road in 
question to be a private road, could name but one person, 
M. R. Miller, whom he stopped from traveling that road prior 
to the obstruction of the plaintiff, and that was about four- 
teen years before the trouble with the plaintiff. L. L. Hatch, 
for the defendants, stated that the line of travel from the 
county road to his ranch is up through past Mr. Pinkham's, 
I. K Buck's, L. W. Buck's, Prank Buck's, through Mr. 
Chubb 's, and then through Mr. Prank Buck's upper place, 
and through Mr. Vermillion 's place ; has known the road for 
twenty-five years. "It has been traveled by teams during all 
that time, by people who lived there, and by others." He 
says he did not consider it a public road because it was not 
a county road ; it was not kept up by the county. He says : 
**I never asked permission of any one to travel the disputed 
road at all. I suppose so far as Mr. Buck's house it looks 
pretty near as a public road; looked the same as a public 
road to me. It has been worked generally by the parties that 
lived on it." The defendant Vermillion says: "The character 
of the use of the road, so far as I have known it, from the 
E. B. Thurber road north, has been, the people that lived 
along it used it principally. Mr. Buck has a great many hands 
there, and gets off a great deal of fruit — great many vehicles 
and wagons, and I suppose as far as Mr. Buck's house it 
looks pretty near as a public road — ^looked the same as a 
public road to me. It has been worked generally by parties 
that lived on it, parties owning property adjacent to it." He 
was asked on cross-examination whether he ever stopped any 
one from passing over the disputed road, and answered: "No; 
I don't think so myself, unless they passed through my place. 



846 Hartley v. Vermillion. [141 CaL 

— Q. Now, I will ask you again, is it a fact or not, that every 
one that desired to make an effort to pass over this disputed 
road between the Thurber road and the gate at your upper 
place passed over it without asking permission of any one to 
do sot — ^A. Well, I can't call to mind any time that any one 
was barred out from down there particularly. ' ' William Eii>- 
pey, for the defendant, never heard the road called a public 
road. F. H. Buckingham, also for the defendant, testified that 
he was at that time one of the supervisors of the county anS 
road commissioner, and knows the road running across the 
valley referred to as the Thurber road. He also says he knows 
the disputed road as far as Mr. Buck's north line, and as far 
as Mr. Vermillion's south line; no further than that He 
says it has always been considered a private road. On cross- 
examination he explains why he considered it a private road ; 
that it had been a matter of investigation by the board of 
supervisors, and had not been adopted as a county road. On 
cross-examination he admits that those who called it a private 
road included the entire road, beginning at the Thurber road 
and running through Vermillion's upper place to Pleasant 
Valley. John Caughy testified that he had charge of defend- 
ant Buck's place, and said that Buck paid about two thirds 
of the expense of keeping the road in dispute in repair, and 
that it cost from one hundred and fifty to two hundred dollars 
a year. Defendant Buck testified that he is one of the owners 
of the land over which the road passes; that he has traveled 
the road about fifteen years without asking permission from 
any of the other landowners, and the only one that he can 
recollect of ever having given permission to pass through 
his place was Mr. Zimmerman, which was quite recently. 
He says: ''I think Mr. Hartley sold me the land a little 
cheaper than if he had not obtained this right of way." He 
was asked on cross-examination: ''Would the right of way 
which you conveyed to the Hartleys have been of any ad- 
vantage or benefit to them unless they could continue on down 
over this disputed road to the Thurber road t — ^A. Probably 
not, probably not — Q. You knew all those years that every- 



Dec. 1903.] Hartley v. Yjsbmtuags. 847 

body was traveling that road that had occasion to travel it, 
did you nott — ^A. Yes." 

It is contended by defendants' counsel, correctly, that the 
conveyance of the right of way by defendant Buck through 
his land to the road in question would not bind the defend- 
ant Vermillion ; but it must be remembered also that defend- 
ant Vermillion did not own a foot of land over which the road 
passes from his upper place to a point very nearly to the 
Thurber road, a distance of about a mile. He purchased 
a narrow strip along the Thurber road on the east side of the 
road in dispute, as he says, to insure bis right of way through 
to the Thurber or public county road. The evidence shows 
that the so-called disputed road was laid out or designated 
by the parties through or across whose land it ran first, and 
has since been used not only by them but by all others who 
had occasion to pass that way, and became ''dedicated or 
abandoned to the public" prior to the obstruction placed 
therein by the defendants in 1899. ThiB constituted it a high- 
way or public road within the terms of the statute, as well as 
at common law. ''In all counties of this state public high- 
ways are roads, streets, alleys, lanes, courts, places, trails, and 
bridges, laid out or erected as such by the public, or if laid out 
or erected by others, dedicated or abandoned to the public, 
or made such in actions for the partition of real property." 
(Pol. Code, see. 2618.) In ShetTnan v. Buick, 32 Cal. 241,» 
the subject of public and private roads is discussed in the 
opinion of the court by Justice Sanderson at considerable 
length, in which he takes occasion to criticise the terminology 
in certain acts of the legislature on the subject. It is said: 
''If the legislature provides for the laying out and establish- 
ing of a certain class of roads or highways which from any 
cause, whether for the purposes of classification, or otherwise, 
is denominated 'private,' or as being for the especial benefit of 
certain individuals upon whom the burden of cost and repair 
is cast, instead of the public at large, it by no means follows 
that such roads become the private property or estate of the 
individuals designated, • • • for where roads are laid out, 

191 An. Dee. 577. 



848 Habtlby V, Vermillion. [141 CaL 

whether mainly for the accommodation of particular neigh- 
borhoods or individuals or not, it must be understood as hav- 
ing been provided for the use of every one who may have occa- 
sion to travel it, and hence as being public. In other words, 
the legislature has no power to lay out and establish private 
roads in the sense that they are to be the private property of 
particular individuals, or that they are what are denominated 
'private ways' at common law; and hence, so far as they 
undertake to do so, their action is simply null and void ; but 
the road so laid out and established becomes a way over which 
all may lawfully pass who have occasion, and therefore pub- 
lic ; and the language employed by the legislature, so far as it 
relates to the legal character of the road — as public or private 
— ^must be understood as being used for the purpose of dis- 
tinguishing it from all other roads, or, in general terms, for 
the purposes of classification. In accurate legal contempla- 
tion the term 'private road' involves a contradiction. The 
term is unknown to the common law. It has its origin in 
American legislation. It cannot be regarded as having been 
employed as a substitute for the word 'way,' as used at com- 
mon law. . . . For the purpose of distinguishing between 
such roads and those which subserve equally the interests of 
all, a name for the former was needed, for the legal term 
'highway' was alike applicable to both; hence the terms 'pub- 
lic' and 'private' roads. The latter is not to be understood 
as being synonymous with 'ways' at common law, but as in- 
dicating a particular class of highways or public ways over 
which any one may pass without committing trespass." 

It is a matter of oommon knowledge that many roads and 
highways in this state — ^starting, perhaps, first as mere trails 
— ^became public highways without any formal or express 
dedication, but by long uninterrupted use and general ac- 
quiescence. When, as in this case, the public, or such portion 
of the public as had occasion to use the road, traveled over the 
same, with full knowledge of the landowners interested, with- 
out asking or receiving any permission and without ob- 
jection from any one, for a period of time beyond that 
required by law to bar a right of action, a right in the 
public to the use of the road arises by prescription or 



Dec. 1903.] Habtley v. Vermillion. 349 

implied dedication. {Schwerdtle y. County of Placer, 108 
Cal. 589.) In the opinion in that case a large number of 
authorities are cited to the effect that a dedication is pre- 
sumed from long and continued adverse use as a road or 
highway. In this connection it may be remarked that as to 
the defendant Buck, he is estopped from denying that there 
was a dedication of the road in question. In Stone y. Brooks, 
35 Cal. 490, lots were sold as abutting on or extending to 
Perry Street, "which at that time, so far as actually opened, 
was but a ctU de sac," and it was held as a dedication by the 
seller of the portion of the lot represented as an extension 
of Perry Street. In the opinion many cases are cited to the 
same effect. The evidence is clear that Buck sold the strip 
of land to the plaintiff along his north line for the purpose 
of a jrxght of way from plaintiff's premises to the road in ques- 
tion fjs a means of reaching a public highway. 

Cooper V. Monterey County, 104 Cal. 438, relied upon by 
appellants, is altogether different from the case at bar. There 
it was said the language of the finding did not negative the 
idea that the use might have been under a mere license. 
Here the finding is, that for more than ten years last past 
there has existed, and now continues to exist, a public road 
and highway in Vaca Valley, from the public road known as 
the B. R. Thurber road to the land of defendant Vermillion, 
and that for more than ten years last past before the com- 
mencement of this suit the plaintiff has, with the general 
public, used the said road and highway as a public road and 
highway, without let or hindrance of any kind, until the 
erection by the defendant of the gate upon the third of 
August, 1899. These findings expressly negative the pre- 
sumption that the use of the road was by license or permis- 
sion, but, on the contrary, as a matter of right and without 
permission of any one, and we think the findings of the oourt 
are abundantly sustained by the evidence. 

The judgment and order are affirmed. 

Shaw, J., McFarland, J., Lorigan, J., Beatty, C. J., and 
Henshaw, J^ concurred. 



350 Estate of Potter. [141 CaL 



[& ¥. No. 3526. In Bank.— Deeember 19, 1903.] 

In the Matter of the Estate of CHABLES B. POTTER, De* 

ceased. 

Estates of Dxoxasxd Pxbsons — Petition to Eniobcb Oonvxtancb of 
Land— Dismissal — Aiondkknt Nxmo Pbo Tunc — Costs — Af- 
PiAL. — ^Wliere a petition to enforce a contract for the oonvejanee 
of land of a deceased person was contested by the administratory 
and was dismissed without prejudice, under section 1602 of the 
Code of Civil Procedure, and several months thereafter the ad- 
ministrator moved for and obtained an amendment to the judg- 
ment nunc pro tunc, taxing the costs against the petitioner, the 
petitioner is entitled to appeal from the judgment so amended 
within sixty days from the date of the amendment, upon a bill of 
exceptions prepared and served thereafter in due time. 

MOTION to dismiss an appeal from orders of the Superior 
Court of Sonoma County amending and modifying a judg- 
ment of that court nunc pro tunc. Emmett Seawell, Judge. 

The facts are stated in the opinion of the court 

Haskell & Denny, and J. T. Campbell, for Appellant. 

Lyman Green, and F. A. Meyer, for Respondent 

THE COUBT.— This is a motion to dismiss the appeals 
from sundry orders taken by appellants under the following 
circumstances: A petition was filed by the appellants in the 
matter of the estate of the deceased, seeking specific perform- 
ance of a contract for the sale and conveyance of land, made 
by deceased with them. The proceedings were under sections 
1597 and 1598 of the Code of Civil Procedure. The admin- 
istrator made answer, controverting the alleged right to com- 
pel conveyance, and concluded by a prayer that the petitioners 
take nothing by their petition. After hearing, the court dis- 
missed the petition without prejudice, as contemplated by 
section 1602 of the Code of Civil Procedure. The decree was 
entered accordingly. This decree was given upon the eleventh 
day of June, 1902. Some months thereafter the administra- 
tor filed his "notice of a motion for judgment nunc pro tunc,'* 



Dec. 1903.] LiNDY v. McChbsnbt. 851 

by which he proposed to ask the court to amend its judgment 
by adding thereto a judgment for costs against the petitioners, 
stating that the motion would be made upon the ground ''that 
said administrator inadvertently failed on said eleventh day 
of June, to ask for said judgment, and upon the ground that 
said court at any time has the right to enter said judgment." 
The court did order its judgment amended nunc pro tunc, 
and taxed the costs against the petitioners in the sum of one 
hundred and fifty-eight dollars. From this judgment, as 
amended, they appeal. Various other orders were made by 
the court, and a contention arises between the parties as to 
whether or not these orders are appealable. But without 
entering into a minute examination and discussion of them, 
it is sufficient here to say that, giving fullest weight to the 
action of the trial court in the premises, it amounted to a 
modification and amendment of its judgment. From the 
judgment so amended and modified an appeal taken within 
sixty days will lie. (Estate of Corwin, 61 Cal. 160; Stutt- 
metster v. Superior Court, 71 Cal. 322.) It is further urged 
that there is no proper bill of exceptions to support the ap- 
peal, but the certificate of the judge shows that the bill of 
exceptions was prepared and served in time. 
The motion to dismiss is therefore denied. 



[8m. No. 088. Department Two. — ^Deeember 21, 1908.] 

GEORGE W. LINDY, Plaintiff-Bespondent, v. MARTHA 
McCHESNEY et al., Defendants-Respondents, and 
MARY E. MANN, Defendant-Appellant. 

JBSTAIXS OV DiCEASBD PERSONS — PrOCEEDINO TO DETEBlimE HEIBSmP — 

GosTS — ^DEPOSITIONS NOT UsED. — In a proceeding to determine heir- 
ship of the estate of a deceased person, where the plaintifi! and one 
of the defendants each claimed the entire estate as against all other 
claimants, as sole child and heir, and the judgment was in favor 
of the other defendants, who were devisees and legatees under the 
win of the decedent, a judgment in their favor for costs was proper, 
and Miflh judgment might property inefaid^ tlw costs of depositions 



852 LiNDY V. McChesnisy. [141 Cal. 

taken by them, though not used at the trial, in the absence of a 
showing that it was unnecessary to take them, or that they shouM 
not be allowed for some special reason. 
Id. — Discretion of Court — Apportionment op Costs. — The court has 
discretion in a proceeding to determine heirship, under section 1664 
of the Code of Civil Procedure, to apportion the costs between the 
parties; but it is proper to award costs to the successful claimants^ 
as against an unsuccessful adyerse claimant of the whole eetate. 

APPEAL from an order of the Superior Court of San Joa- 
quin County denying a motion to retax and apportion costs. 
Edward I. Jones, Judge. 

Woods & Levinsky, and James H. Budd, for Appellant. 

Denson, Oatman & Denson, for Plaintifif-Respondent 

John A. Percy, and Budd & Thompson, for Martha E. Mo- 
Chesney et al., Respondents. 

James A. Louttit, and Louttit & Middlecoff, for William 
A. Cowdery, Respondent. 

H. R. McNoble, for Rosa B. Hunt, Respondent 

E. 0. Larkins, for Henry West et al., Respondents. 

Carl E. Linds, for Mary E. Humes, Respondent 

Gk>uld & Bogue, for Philander N. West et al., Respondents. 

McFARLAND, J. — This is a proceeding under section 1664 
of the Code of Civil Procedure, to ascertain and declare the 
rights of all persons claiming as distributees of the estate of 
George M. Easson, deceased. The appeal here is by Mary B. 
Mann from an order denying her motion to strike out from 
a bill of costs filed by the respondents certain chaises for 
taking depositions, which were not used at the trial, and ''to 
apportion the costs" in the proceeding "in accordance with 
the provisions'* of said section 1664. 

The record on the present appeal is very meager, and 
shows nothing as to the nature of the respective claims of 
the parties to the estate of said Kasson. It merely showa 



Dec. 1903.] LiNDY v. McChesnbt. 353 

that the judgment was in favor of the defendants who are 
respondents here, and against the appellant, Mann. The case, 
however, was here once before, and is reported in Estate of 
Kasson, 127 Cal. 496, and counsel for both parties refer in 
their briefis to the case as there reported. If we can look into 
that case, we see that the appellant, Mann, claimed the entire 
estate as the child and sole heir of the deceased, and that the 
respondents daim as devisees and legatees under a will made 
by said Kasson, so that the contest was between appellant on 
the one side, and the respondents on the other; and as ap- 
pellant lost, there is no reason why she shoula not be liable 
for the costs, as any other losing party in a civil action. It 
is true that section 1664 gives the court discretion to appor- 
tion the costs between the parties, but — if we can look into the 
former record — ^the present case does not call for such action. 
On the other hand, if we are confined to the record on the 
present appeal, there is nothing in it to show any abuse of 
discretion. As to the items for taking depositions, they are 
proper disbursements to put into a cost-bill, unless it be shown 
that they were unnecessary, or that for some special reason 
they should not be allowed, — ^which is not shown here. It is 
frequently proper and necessary for a party to have deposi- 
tions taken, although afterwards the case may take sucn 
course as to make it unnecessary to use them. For instance, 
the opposite party may fail to make out a case, or a nonsuit 
may be granted, in which case the party taking the deposi- 
tions would not be called upon to use them. 
The order appealed from is affirmed. 

Lorigan, J., and Henshaw, J., concurred. 
GXLLOal.— 23 



J 



354 S. P. Law etc. Co. v. State of California, [141 CaL 



[S. F. No. 3669. In Bank.— December 21, 1903.] 

SAN FRANCISCO LAW AND COLLECTION COMPANY, 
Respondent, v. STATE OP CALIFORNIA, AppeUant. 

Action against State — BoxmTT on Coyote Scalps — New Trial. — The 
provisions of the Code of Civil Procedure relative to new trials 
apply to actions against the state to recover the bounty on coyote 
scalps brought under the act of March 23, 1901. The action autboi^ 
ized by that act is not a special proceeding, but an ordinary action 
for money due, and the rules of law apply thereto which are applic- 
able to ordinary actions. 

Id. — ^Appeal — Time pob Filing Tbanscbipt — Settlement of Excep- 
tions. — In an action in which a motion for a new trial will lie, the 
appellant has forty days after the settlement of a bill of ezeep- 
tions on motion for new trial, which may be used on appeal from 
the judgment, in which to file his transcript on appeal; and where 
it appears that the time has not elapsed, and the settlement has 
been deferred by stipulation of the parties, a motion to dismisa the 
appeal on the ground that the transcript has not bean filed must be 
denied. 

Id. — Appeal by State — Undeetaking — Construction op Cods. — Al- 
though section 1058 of the Code of Civil Procedure in terms only ex- 
empts the state from giving an undertaking on appeal when it ia 
a party plaintiff, and does not expressly exempt it when it is a 
party defendant, yet, from the other terms of that section, the in- 
tention to exempt the state in all eases is clear; and where the 
provisions of the Code of Civil Procedure relating to undertakings 
on appeal, as originally passed and as last amended, were not in- 
tended to include the state, the general words of such proviaiona 
should not be held applicable to the state, unless the intention of 
the legislature that they should be applicable is clearly shovm. 

Id. — Services op Notice op Appeal— Time por Filino. — ^TWie aerWee of 
a notice of appeal may precede the filing of it, and the statute 
does not prescribe any particular time after service within whieh 
it must be filed, and it may be filed at any time before the expira- 
tion of the time for appeal, though, when an undertaking ia re- 
quired, it must be filed within five days after service of the notiee. 

MOTION to dismiss an appeal from a judgment of the 
Superior Court of Sacramento County. Joseph W. Hughea, 
Judge, 

The faets are stated in the opinion of the court 



Dec. 1903.] S. P. Law etc. Co. v. State op California. 855 



U. S. Webb, Attorney-General, George A. Startevante, As- 
gistant Attorney-General, and Devlin & Devlin, for Appel- 
lant. 

T. Carl Spelling, for Respondent. 

ANGELLOTTI, J. — This is a motion to dismiss an appeal 
from a judgment entered against defendant in the superior 
court of Sacramento County, for the sum of $8,885. The 
action was brought under the provisions of the act of March 
23, 1901, (Stats. 1901, p. 646,) authorizing suits against the 
state on claims arising under the act iudng a bounty on 
coyote scalps, approved March 31, 1891. The motion to dis- 
miss the appeal is based on several grounds, which will be 
separately considered. 

1. It is urged that the appellant has failed to serve or file a 
transcript on appeal within the time prescribed by the rules 
of this court. The notice of appeal was served on April 17, 
1903, and filed on April 28, 1903, and no transcript on appeal 
had been served or filed at the time of the serving of the notice 
of motion to dismiss the appeal, July 23, 1903, or at the date 
of the hearing of the motion, August 3, 1903. It appears, 
however, that a notice of intention to move for a new trial 
upon a bill of exceptions was regularly given ; that thereafter 
a proposed bill of exceptions was regularly and in due time 
served on respondent; that, by stipulation, the hearing and 
settlement of said bill was continued to September 1, 1903, 
until which time respondent was given to prepare amend- 
ments; and that the bill of exceptions has not been settled. 
If the action be one in which a motion for a new trial will lie, 
it is clear that the fact that the bill of exceptions to be used 
on the hearing of the pending motion for a new trial, and 
which may be used on this appeal from the judgment, has 
not yet been settled, and that its settlement has been deferred 
by stipulation of the parties, is a complete answer to the 
motion to dismiss on the ground that the transcript on appeal 
has not been filed. The appellant has forty days after the 
settlement of said bill within which to file such transcript. 
(Kelly V. Ning Yung etc., Admr., 138 Cal. 602; Bernard v. 
Sloan, 138 Cal. 746.) 

It is claimed that the trial court has no authority to grant 
a new trial in a proceeding under the act of March 31, 1901 ; 



356 S. F. Law etc. Co. v. State of Calitobnia, [141 Cal. 

that there is consequently no authority for the settlement of 
a bill of exceptions on a motion for a new trial in such a 
proceeding; that such a bill cannot be used on the apx>eal 
from the judgment ; and that the fact that it is still unsettled 
is therefore no answer to the motion to dismiss. The argu- 
ment is undoubtedly sound, if there be no authority for the 
granting of a new trial in such proceedings. 

We are, however, satisfied that a motion for a new trial 
will lie in such a proceeding. The action authorized by the 
act of 1901 is an ordinary action for the recovery of money 
alleged to be due from the state, and is in no true sense of the 
word a special proceeding. The fact that no action can be 
maintained against the state without its express permission is 
immaterial. When such permission is granted by statute for 
the maintenance of suits against the state by those who claim 
that the state is indebted to them, there is no material distinc- 
tion between the proceeding instituted thereunder and any 
action for money against an ordinary defendant, and the 
rules of law applicable to the ordinary action are applicable 
to such suit, except in so far as it is prescribed otherwise 
by the legislature. The act provides for a "suit" in any 
superior court of the state and the prosecution of the same 
to '* final judgment" It declares that **The rules of practice 
in civil cases shall apply to such suits, except as herein 
otherwise provided, with the right to appeal to either party." 
There is no special provision therein relative to the pleadings 
and mode of trial. The issues of fact made by the complaint 
and answer in the ordinary way are to be tried and deter- 
mined in the ordinary way, and there is nothing in the lan- 
guage of the act to indicate an intention to deprive either the 
plaintiff or the state of the right accorded to parties to an 
action to apply for a re>examination of the issues of fact for 
the causes specified in section 657 of the Code of Civil Pro- 
cedure, unless the words ''with the right of appeal to either 
party" indicate such intention. 

We are satisfied that they indicate no such intention, and 
that the provisions of the Code of Civil Procedure relative to 
new trials are applicable to suits against the state under the 
act of March 23, 1901. 

2. It is claimed that the appeal is ineffectual for any pur- 
pose, by reason of the fact that no undertaking on appeal for 



Dec. 1903.] S. P. Law etc. Co. v. State op Caupobnia. 357 

damages and costs has ever been filed by the state, or deposit 
of money made in lieu thereof, and that the giving of such 
undertaking has not been waived. (Code Civ. Proc, sees. 
940, 941.) 

This claim is based upon the fact that section 1058 of the 
Code of Civil Procedure does not in terms exempt tl.e state 
from giving undertakings when it is a party defendant, al- 
though the section does in terms so except the state when it is 
a party plaintiff, and exempts any state officer, when, in his 
oMcial capacity or in behalf of the state, he is a party plain- 
tiff or defendant. The intention to dispense with the bond 
in all cases where the state or the people of the state, or any 
state officer in behalf of the state, or any county, city and 
county, city, or town is a party plaintiff or defendant, is 
clear, and the reason for the omission from section 1058 of 
the Code of Civil Procedure of any provision in terms ex- 
empting the state from the giving of bonds and undertakings 
in actions wherein it is a party defendant was probably, as 
suggested by plaintiff, that at the time of the last amendment 
of said section the state could not be brought into court as a 
defendant The general provisions relative to the giving of 
an undertaking on appeal as security .for damages and costs 
(sections 940 and 941 of the Code of Civil Procedure) have 
not been amended since the year 1874. As originally enacted, 
and as last amended, they were not intended to include the 
state, for by section 1058 of the Code of Civil Procedure, as 
originally enacted in 1872, explicit provision was made for the 
exemption of the state from the effect of such provisions in all 
eases in which it could then be made a party. 

This being the condition of the legislation at the time of the 
enactment of the various provisions authorizing suits against 
the state on claims for money, the general words of the statu- 
tory provisions relative to undertakings on appeal should not 
be held applicable to the state, unless the intention of the 
legislature that they should be so applicable is clearly shown. 
(See 20 Ency. Plead, and Prac, 588; Ex parte Macdonald, 
76 Ala. 603; State of Nevada v. Rhoades, 6 Nev. 373.) No 
such intention anywhere appears. No one can conceive of 
any reason why the state should be compelled to give an un- 
dertaking on appeal in a proceeding under this act. Such an 
undertaking is given by an appellant to secure to the respond* 



358 S. F. Law etc. Co. v. State op California. [141 Cal. 

ent the costs on appeal and such damages as may be awarded 
thereon. Under the express terms of the act authorizing the 
suit, all costs must be paid hy the plaintiff, and any judgment 
that it may ultimately recover can be only for the amount 
actually due plaintiff, without interest and without costs. It 
is suggested that damages might be awarded plaintiff against 
the state for a frivolous appeal taken by its officers, but the 
suggestion is probably not seriously made. Such an under- 
taking on appeal could serve no useful purpose. The right of 
appeal in these proceedings is guaranteed to the state by the 
act, but there is no provision for the giving of an undertaking 
on appeal by the state, and we know of no way in which, in 
the absence of legislation providing a mode therefor, the state 
could comply with the requirements of the general law rela- 
tive to the giving of such an undertaking, or security in lieu 
thereof. To hold that the giving of tlie same is necessary 
to perfect an appeal by the state would be practically to deny 
the state the right of appeal in these cases. (See Common- 
wealth V. Franklin Canal Co., 21 Pa. St. 117.) 

3. It is further urged that no notice of appeal was served in 
proper time, or at all. As already stated, the notice of appeal 
was not filed until eleven days after the service of the same, 
but it was filed within six months of the date of entry of judg- 
ment. Section 940 of the Code of Civil Procedure provides 
that "An appeal is taken by filing with the clerk of lie court 
... a notice stating the appeal from the same, . . . and serv- 
ing a similar notice on the adverse party or his attorn^. 
The order of service is immaterial, but the appeal is inef- 
fectual for any purpose unless within five days after service 
of the notice of appeal, an undertaking be filed," etc 

It is well settled that under this section the serving of the 
notice of appeal may precede the filing, and, as was said in 
Robinson v. Lodge^ 114 Cal. 41, "The code does not prescribe 
any particular time after service within which it must be 
filed." In that case the service preceded the filing by five 
days. In both Noonan v. Nunan, 76 Cal. 44, and OaUoway ▼. 
Rouse, 63 Cal. 280, the service preceded the filing by a day 
or more, while in Hewes v. Carville Mfg. Co., 62 Cal. 516, 
the service of the notice preceded the filing by eighteen days. 
In all these cases, the motion to dismiss the api>eal was denied. 



Dec. 1903.] S. P. Law etc. Co. v. State op Calipoknia, 359 

We have not found that the doctrine of Hewes v. CarvUle 
Mfg, Co., 62 Cal. 516, has been overruled so far as the ques- 
tion here involved is concerned. The cases relied upon by 
plaintiff as overruling it are cases relating entirely to the un- 
dertaking on appeal, which, to be valid, must be filed within 
five days after the service of the notice of appeal. When it 
is once conceded, as it must be under the decisions, that the 
filing of the notice may be on a day subsequent to the service, 
and that the code does not prescribe any particular time after 
service within which such filing must be had, it logically fol- 
lows that the notice may be filed any time before the expira^- 
tion of the time for appeal. The appeal is not perfected until 
all of the things required by the statute to be done have been 
done. The notice of appeal must be served, the undertaking 
must be filed within five days after the service of the notice, 
and the notice must be filed. So long as the notice of appeal 
remains unfiled, the appeal has not been taken, and the pre- 
vailing party is at liberty to proceed, notwithstanding the 
service of notice and the filing of undertaking, to enforce 
his judgment, so that the claim of plaintiff that the losing 
party may, by failing to file his notice of appeal after notice, 
"tie up the judgment for six months without ever appeal- 
ing," is not well founded. The notice of appeal must un- 
doubtedly be both served and filed within the time allowed for 
the taking of an appeal, but we find no warrant in the statute 
for holding that the notice must be filed within any specified 
number of days after service. 
The motion to dismiss the appeal is denied. 

Beatty, C. J., Shaw, J., Van Dyke, J., Henshaw, J., and 
Lorigan, J., concurred. 



360 CJouNTT OP Tuba v. Kate Hates Min. C!o. [141 CaL 

[Sae. No. 874. In Bank.— December 21, 1903.] 

COUNTY OP TDBA, Respondent, v. KATE HATES MIN- 
ING COMPANT et al., AppeUants. 

iNJimcnoN— MiKiNO Debris — Nuisance — Action by Oountt. — ^A 
eotinty, m the owner of property injured by the deposit of mining 
debris in a tributary of the Yuba Biyer, may maintain an aetion 
to enjoin the deposit therein of such debris by a mining company 
eirgaged in sluiee-mining upon sueh tribntazy. The publie nuisance 
in siich ease is aiso a private nuisance to the county, which it may 
enjoin. 

I©. — Situation or County Propeett "Adjacent** to Biysb — ^Puead- 
ING — ^PiNDiNG — SumciENOY OF EviDENCB. — Where the complaint 
alleged and the court found that the county property was ''adja- 
cent" to the Tuba Biver, the finding is not against the evidence, 
where the evidence shows that the property, though not in eontaet 
with the river, was sufficiently near thereto to be injured by tbe 
deposit of debris thereon by the river in time of high water. The 
property is ''adjacent" to the river when situated near or dose 
to it. 

Id. — ^Belief bbtoki» Issues— Invasion or Pbopebtt Bights. — Where 
the issues tried and determined related solely to the working of de- 
fendant's mine by the hydraulic or sluicing process, so as to de- 
posit debris in a tributary of the river, reUef granted b^ond the 
issues, to restrict the use of the water of the defendants on any 
other ground or mine, or forbidding a bona fide sale or transfer 
of the water supply or of the mining property of the defendants, 
which may be used for any lawful purpose, even though def enoants 
may know that the purchaser will not, in working the same, respect 
the rights of others, if the sale is not made for that express pur^ 
pose, is an unwarranted invasion of the rights of property of the 
defendants. 

APPEAL from a judgment of the Superior Court of Tuba 
County and from an order denying a new trial E. A. Davis, 
Judge. 

The f aota are stated in the opinion of the oourt 

C. W. Cross, for Appellants. 

The judgment grants relief not authorized by the pleading, 
and not embraced within the issues, and is erroneous. (Code 
Civ. Proc, sec. 580 ; Sterling v. Hanson, 1 Cal. 478 ; Sigoumey 
V. Zellerbach, 55 Cal. 431; Northern Railway Co. v. Jordan^ 
87 Cal. 23; Mondran v. Ooux, 51 Cal. 151; Bachman v. 



Dec. 1903.] County op Tuba v. Kate Hates Mtn. Ck). 361 

Sepulveda, 39 Cal. 688; Hicks v. Murray, 43 Cal. 515; Reed 
V. Norton, 99 Cal. 617; Cummings v. Cummings, 75 Cal. 434.) 
The remedy on a judgment broader than the facts alleged and 
found is by an appeal from the judgment on the judgment- 
roll. {Shepard v. McNeil, 38 Cal. 72; Eeinlen v. EeUbron, 
71 Cal. 557; Roberts v. Eldred, 73 Cal. 894.) 

E. P. McDaniel, and Robert T. Devlin, for Respondent 

The only limitation on the power of a court of equity to 
grant relief under the general prayer for relief is, that it must 
be agreeable to the case made by the bill, and not different 
from or inconsistent with it. {Cram v. Barnes, 1 Md. Ch. 
151.) Any appropriate relief may be granted under a gen- 
eral prayer. {Repplier v. Buck, 44 Ky. (5 B. Mon.) 96.) 
The relief granted is appropriate under the general prayer 
jbr relief, and is not inconsistent with the complaint. 

ANQBLLOTTI, J.— This action was brought by the plain- 
tiff, the owner of certain lots of land in the city of Marysville, 
county of Yuba, in which are situated the county courthouse, 
county jail, hall of records, and county hospital, and also the 
owner of the wagon-bridge crossing the Tuba River from the 
foot of D Street in said city, to obtain a decree enjoining de- 
fendants from discharging debris from their mineral lands 
into Sweetland Creek and the Yuba River, or any branch 
thereof, to the injury of plaintiff's said property. On the 
trial, the action was dismissed as to all of the defendants ex- 
cept the above-named mining company and Charles N. Miller, 
its superintendent, and judgment went for plaintiff. From 
the judgment and order denying their motion for a new trial 
said defendants appeal. 

The complaint alleged that the property of plaintiff is adja- 
cent to the Yuba River, which empties into the Feather River 
at or near the city of Marysville, and that the defendants 
are in possession of, working and operating by the hydraulic 
process and the ground-sluice process, certain mines and min- 
ing claims in Nevada County, and discharging the debris 
therefrom into Sweetland Creek, a tributary of Yuba River, 
about three miles in length, whence said debris is carried 
down the Yuba River, and is deposited and lodged in the beds 



362 County of Tuba v. Kate ITaybs Mm. Co. [141 Cal. 

and channels of the river and upon plaintiff's property, 
and will continue to do ao, unless restrained. The complaint 
alleged the general effect of such mining operations of de- 
fendants upon the Yuba River, which is by the deposit of 
debris therein, to raise the bed and channel of the river, and 
cause the lands on each side thereof, in times of flood, in the 
absence of high and secure levees, to be covered with water 
and debris, to the great damage of said lands. (As to the 
general effects of such mining operations, see Mining Debris 
case, 9 Saw. 441, 18 Fed. 753, relating to the same locality.) 

It was further alleged that it will require many years to ex- 
haust the mines of defendants, that the property of plaintiff 
is, by reason of said mining operations of defendants, each 
year becoming more seriously threatened with destruction 
from the waters of the river, that its value has already been 
greatly depreciated thereby, and that if said defendants and 
others who are engaged in said operation are permitted to 
continue to engage therein, the said property will be utterly 
destroyed and rendered absolutely valueless for any purpose 
whatever. It was further alleged that plaintiff's lands have 
been flooded, but there was no evidence to sustain this allega- 
tion, the testimony in this regard being simply that but for the 
levees it would have been ruined. In all other respects, the 
material allegations of the complaint must be held to be sus- 
tained by the testimony. It is true that the evidence failed to 
show that defendants were mining by the "hydraulic pro- 
cess," but, admittedly, they were mining by the ** ground- 
sluice process," which, according to the evidence, produced 
the same effect in kind as the hydraulic process, only to a leaa 
degree. It is urged that the property of plaintiff, other than 
the bridge, was not ** adjacent to" the Yuba River, and that 
the finding of the court in that regai-d is not sustained by the 
evidence. The property is all near the river, but none of it 
borders thereon. To be ** adjacent" to the river, it is not es- 
sential that the property should be in actual contact there- 
with. A thing is adjacent to another when it lies near or 
dose to it, although it is not in actual contact therewith. 

The material question here was whether it was near enougrh 
to the river to be damaged by such overflow thereof as might 
be caused by the acts complained of. 



Dec. 1903.] CouNTT op Yuba v. Kate Hates Min. Co. 

The court was justified in concluding that the operations 
of defendants constituted a public nuisance, specially injuri- 
ous to plaintiff as a property-owner, and, therefore, one to en- 
join which plaintiff could maintain an action. (Code Civ. 
Proc, sec. 731; Civ. Code, sec. 3493; Mining Debris case, 9 
Saw. 441; 18 Fed. 753.) As to the county, as a property- 
owner, the nuisance is also a private nuisance. {Fisher v. 
Zumwalt, 128 Cal. 493.) The county is not suing to protect 
the rights of others, but purely in its proprietary capacity, 
as the owner of certain real property. 

The decree enjoining defendants, their officers, agents, etc., 
from discharging the debris into Sweetland Creek or Yuba 
River, or any of their tributaries ; and from dumping or plac- 
ing the same in such places that it would be liable to be washed 
or removed thereto, and from suffering or allowing its or their 
claims to be worked or operated by the hydraulic process or 
ground-sluice process, and the debris therefrom discharged 
into said river, creek, or tributaries thereof, was warranted 
by the pleadings, evidence, and findings. The decree further 
restrains defendants **from suffering others to use his or its 
water supply, or any part thereof, for tne purpose of wash- 
ing into such streams or gulches any earth, rocks, boulders, 
day, sand, or other solid material contained in any other 
ground or mine, with knowledge on the part of said defend- 
ants that the same is to be used in such a manner as to work 
injury to the property of the plaintiff described in the com- 
plaint, . . . and also from selling, leasing, or in any manner 
conveying, transferring, or disposing of said mine and mining 
ground, or any part thereof, or the water supply of the said 
defendants, or either of them, to any person whatever for the 
purpose of being worked or used by the hydraulic process or 
the ground-sluice process, and the mining debris discharged 
therefrom into said creek or river, or any of their or its tribu- 
taries, with knowledge of said purposes on the part of said 
defendants. 

It is specially urged by appellants that the judgment should 
be modified by striking therefrom these portions thereof, it 
being claimed that neither the allegations of the complaint 
nor the evidence justified the insertion thereof in the decree. 
While the prayer of the complaint asked for this relief, there 
was no allegation of the complaint warranting the provision 



364 County op Yuba v. Kate Hayes Min. Co. [141 Cal. 

as to the iise of defendants' water **<n any other ground or 
mine." The object of the action was to restrain the defend- 
ants from working their own mining property in a certain 
way; the allegations of the complaint are clearly confined 
thereto, and so far as the complaint is concerned the water is 
referred to merely as an instrumentality in working said 
property. There is no allegation that they ever suffered or 
threatened to suffer any one else to use their water for mining 
operations. On the contrary, the allegation as to the water is, 
that the defendant mining company 'Ms now using and will 
continue to use" the same **to mine its said tracts of land," 
and the only evidence in the record is that furnished by tne 
stipulation **that the company defendant owns and controls a 
water supply of 2,500 inches and ditches to convey the same to 
the mine and to such customers as may purchase water when it 
has no use for it." There was no issue as to any of these mat- 
ters and no finding of the court. While the court was author- 
ized to fully protect plaintiff against any threatened acts and 
injuries complained of, it could not grant any relief except 
such as was '' consistent with the case made by the complaint 
and embraced within the issue/* (Code Civ. Proc., sec. 580.) 
The case made by the complaint in this proceeding related 
solely to the mining operations of defendants on their own 
lands. Other portions of the decree will restrain defendants 
from allowing or suffering others to use the water to plain- 
tiff's injury in maintaining operations on said land, and be- 
yond this the court was not authorized by the pleadings to go, 
for the matter was not embraced within the issues. The object 
of that portion of the decree prohibiting the selling, leasing, 
conveying, transferring, or disposing of the mine, mining 
ground, and water supply of defendants, so far as justified 
by the pleadings and the law, is fully attained by other por- 
tions thereof. What plaintiff seeks to prevent by this is 
the discharge of mining debris from defendants' lands into the 
creek and river, and their tributaries, by persons to whom the 
property may be transferred by the defendants. By another 
provision of the decree, as already shown, defendants are pro- 
hibited from suffering or allowing their claim to be worked or 
operated by the hydraulic process or ground-sluice process, 
and the debris therefrom discharged into said river, creek, 
or tributaries thereof, and there can be no doubt that defend- 



Dec. 1903.] County or Tuba v, Kate Haybs Min. Co. 865 

ants would be liable thereunder for the doing of the prohibited 
acts by those to whom the property is leased by defendants 
for the purpose of being so worked and operated. It may 
also be that any disposition by the defendants of the property 
to another, by deed or otherwise, for the express purpose of 
being so worked or used, would, if such prohibited acts were 
done by the person to whom the transfer was made, be a vio- 
lation of that portion of the decree which prohibits the defend- 
ants from doing the acts productive of injury, or from aiding 
others in the commission thereof. But this portion of the 
decree is open to the construction of forbidding an absolute 
bona fide sale or transfer by defendants of their mining prop- 
erty, which may be put to a lawful and proper use, to any 
person who may have the intention to work or use the same 
by the hydraulic process or ground-sluice process and dis- 
charge the debris therefrom into the river, creek, or tributaries 
thereof, if defendants have knowledge of such intention on 
the part of the purchaser. We have not been cited to any 
authority warranting such an interference with the rights of 
property, and know of no principle upon which it can be 
held that a man may not sell his mine simply because he may 
know that the purchaser will not, in working the same, respect 
the rights of others. 

The order den3ring defendants' motion for a new trial is 
aflSrmed, and the cause is remanded to the lower court, with 
directions to modify the judgment by striking out the parts 
thereof quoted in this opinion, — ^viz., the part relating to the 
use of defendants' water supply on other lands than those of 
defendants, and the part relating to the selling, etc, of de- 
fendants' mine, etc, — and as so modified said judgment will 
stand affirmed. 

Van Dyke, J., McParland, J., Lorigan, J,, Shaw, J., and 
Eenshaw, J., concurred. 



866 Estate op Ryder. [141 Cal. 

[Sac. No. 1012. In Bank.— December 21, 1903.] 

In the Matter of the Estate of MARY E. RYDER, Deceased. 
L. RYDER, Appellant, v. MARY MOORE, Respondent. 

Estates or Dsoxasxd Persons— Distribution— Jurisdiction — Con 
VXTANCK BY HuB-ApPARENT.— The jurisdiction of the superior 
eourt over the estates of deceased persons is entirely statutory ; and 
whatever power it may have in the matter of the distribution of an 
estate of a deceased person to consider and determine the rights of 
the grantees of heirs, legatees, or devisees, under conveyances made 
by them after the death of the decedent, rests solely upon the pro- 
Tisions of section 1678 of the Code of Civil Procedure, and is limited 
by the terms of said section. The court has no jurisdiction to de- 
termine the right of the grantee of an heir-apparent under a deed 
made prior to the death of the decedent, or to distribute the estate 
to such grantee, against the objection of the grantor, who is the 
sole heir of the decedent. 

Id. — ^VoiD Babgain-and-Salb Deed — Subsequently Acquired Title. — 
A bargain-and-sale deed by an heir-apparent prior to the death of 
the person of whose estate he may become the heir is legaUy void 
for want of any interest then to be conveyed, and the eiFeet of 
the deed to convey the subsequently acquired title of the grantor 
cannot authorize the grantee to claim distribution of the estate 
against the objection of the heir. Distribution of the estate of 
the decedent must be made to the heir who insists thereupon, leav- 
ing the question of the effect of the deed upon the after-acquired 
title of the heir, under section 1106 of the Civil Code, to be asserted 
in a proper proceeding. The determination of questions relative 
thereto is not within the scope of the probate proceedings, and is 
not authorized by statute. 

APPEAL from a deeree of distribution of the Superior 
Court of Yolo County. E. E. Gaddis, Judge. 

The f sets are stated in the opinion of the court 

B. dark, and G. Clark, for Appellant 

The conveyance of the expectancy of an heir-apparent with- 
out the consent of the ancestor is void. (Civ. Code, sees. 700, 
1045; McClure v. Baben, 133 InA 507,-* Alves v. Schlesinger, 
91 Ky. 290; Boynton v. Hubbard, 7 Mass. 112; Curtis ▼. 
Curtis, 40 Me. 24.*) It did not convey a future inherited 
interest. (McCdU v. Hampton, 98 Ky. 166}) 



186 Am. St. Bep. 658. t56 Am. St. Bep. 335. 

186 Am. Dee. 661. 



Dec. 1903.] Estate op Btdeb. 867 

Byron Ball, for Bespondent 

The bargain-and-sale deed conveyed the after-acquired 
title of the grantor, from whatever source derived. (Civ. 
Code, sees. 1069, 1106; 3 Washburn on Real Property, 3d ed., 
sec. 35 ; Hawkins v. Hawkins, 50 Cal. 558 ; Nunnally v. White, 
3 Met. (Ky.) 589; Clarke v. Baker, 14 Cal. 630, 634 ;* Sher- 
man V. McCarthy, 57 Cal. 514, 515; Stewart v. Powers, 98 
Cal. 518; Oreen v. Qreen, 103 Cal. 110; MerriU v. Clark, 103 
Cal. 367.) 

ANGELLOTTI, J.— This is an appeal by L. Ryder, the 
father and sole heir of Mary E. Ryder, deceased, from the 
decree of distribution made in the matter of her estate, dis- 
tributing all of the property of the estate to one Mary Moore, 
and also from an order denying his motion for a new trial 
in the matter of said distribution. 

It appears that the deceased died intestate on June 23, 1900, 
leaving her surviving her said father, the appellant, her onl/ 
heir at law. Her estate consisted of an undivided one half 
of a parcel of land in Yolo County, which she had acquired 
in the year 1876 by inheritance from her mother, Emergene 
Ryder, wife of appellant. 

Appellant was regularly appointed administrator of the 
estate of his deceased daughter, and in due time presente<i 
his final account as such administrator, together with a peti- 
tion for the final distribution of the said undivided one half 
of said realty, constituting the whole of the residue of the 
estate, to himself, as the sole heir of deceased. The respond- 
ent, Mary Moore, thereupon filed her opposition to the distri- 
bution of said realty to appellant, and asked that the same 
be distributed to her, the sole ground of her claim being, as 
shown by the allegations of her opposition, that in the year 
1883, seventeen years before the death of deceased, the appel- 
lant, who as a distributee of said Emergene Ryder was then 
the owner of the other undivided one half of said realty, had, 
for a valuable consideration and by a deed of grant, bargain, 
and sale, purported to convey the whole of said parcel of land 
to her, and that she had not thereafter ever parted with the 
title so attempted to be conveyed to her. 

Appellant answered said opposition, alleging that the deed 



176 Am. D6e.44S. 



368 Estate of Ryder. [141 Cal. 

made by him to said Mary Moore was made through inad- 
vertence and mistake, said mistake consisting in ''the descrip- 
tion in said deed being made to convey five acres of land when 
it was the intent of the grantor to convey two and one half 
acres of land and no more." The court did not make any 
finding upon the question of mistake, but, finding that the 
deed was executed by appellant as hereinbefore stated, de- 
creed distribution to said Mary Moore. 

The allegation as to mistake contained in the so-called an- 
swer to the opposition was insufficient in several respects, but 
it was treated as sufficient by respondent, who amended her 
opposition to meet the same, by denying "that the same or 
any part thereof was or is a mistake in any particular what- 
ever, or that it does not clearly and explicitly state the eon- 
tract and understanding of the parties thereto at the time of 
its execution and delivery, of which it bears date.'* The hear- 
ing proceeded upon the theory that issue had been made upon 
the question of mistake, each party introducing evidence 
thereon. It sufficiently appears from the record that appel- 
lant objected to the distribution being made to respondent, 
upon the ground that it was not the intention and understand- 
ing of both parties that the deed should convey anything ex- 
cept the undivided one half of the property that appellant 
then owned, and that the words purporting to convey more 
were inserted by mistake. 

It is urged that, under these circumstances, the superior 
court had no right in this proceeding to determine as to the 
merits of respondent's claim, and to decree distribution to 
her, and we are of the opinion that this contention must be 
sustained. Notwithstanding the general jurisdiction of the 
superior court, proceedings in probate are entirely statutory, 
and the court exercises therein a special and limited juris- 
diction, in the sense that its jurisdiction is limited by the 
mode and procedure prescribed by the statute. It is well 
settled that in the exercise of its probate jurisdiction it is 
not authorized, in the absence of express statutory authority, 
to decide controversies not strictly within the probate pro- 
ceedings. (See Toland v. Earl, 129 Cal. 155 ;i More v. More, 
133 Cal. 489, 496 ; Martinovich v. Marsicano, 137 Cal. 354-356.) 

179 Am. St Bep. 100. 



Dec. 1903.] Estate op Btdeb. 369 

Its function therein is to administer the estate of the deceased 
and distribute the residue of his property among those who 
are eniitled to the same under any mil properly executed, or 
under the laws of succession, if the deceased died intestate. 
If it were not for section 1678 of the Code of Civil Proce- 
dure, the only questions on distribution would be as to who 
were the heirs, legatees, and devisees, and what property they 
were entitled to as such, and the court would be without au- 
thority to distribute to any persons other than heirs, legatees, 
or devisees, for that section is the only provision of our law 
that authorizes distribution to any other person. {Estate of 
Crooks, 125 Cal. 459; Martinovich v. Marsicano, 137 Cal. 
354.) The said section provides as follows, viz.: "Partition 
or distribution of the real estate may be made as provided in 
this chapter, although some of the original heirs, legatees, or 
devisees may have conveyed their shares to other persons, and 
such shares must be assigned to the person holding the same, 
in the same manner as they otherwise would have been to 
such heirs, legatees, or devisees.'' 

The opinions of this court are not entirely harmonious as 
to the authority of the court on distribution to determine, 
against the objection of an heir, legatee, or devisee, as to the 
rights of a third person claiming under a conveyance alleged 
to have been made by such devisee, legatee or heir. {Free- 
man V. Bahm, 58 Cal. Ill; Chever v. Ching Hong Poy, 62 
CaL 71; Estate of Vaughn, 92 Cal. 193; WiUiam HiU Co. v. 
Lawlor, 116 Cal. 359 ; More v. More, 133 Cal. 489 ; Estate of 
Crooks, 126 Cal. 459; Martinovich v. Marsicano, 137 Cal. 
354.) It may, however, be conceded, solely for the purposes 
of this case, that under the provisions of section 1678 of the 
Code of Civil Procedure, the court on distribution may de- 
termine disputes between heirs, legatees, or devisees, and per- 
sons claiming to be the grantees of thdr shares under 
conveyances made by them, although the determination of 
such disputes would not ordinarily be within the functions 
of the probate court. If such authority exists, it rests solely 
upon the provisions of the section, and is limited by its terms. 
{Martinovich v. Marsicano, 137 Cal. 354.) But this section 
uidudes only conveyances of their shares made by ''heirs, 
legatees, or devisees,** and has no reference to conveyances 
GXLL CaL— 84 



370 Estate of Ryder. [141 Cal. 

made prior to the death of the deceased, by persoiu who were 
not at the time of the conveyance either heirs, legatees, or 
devisees, and who then had no interest in the property that 
was capable of being conveyed. (Civ. Code, sees. 700, 1045; 
Estate of Oarcelan, 104 Cal. 584 ;* Estate of Wickersham, 
138 Cal. 355, 361.) In the Estate of WickersJiam, speaking 
of an attempted conveyance by an heir-apparent, this court 
said : ''It was legally void ; nor could it operate to transfer to 
the grantee, upon the d^ <ith of Mrs. Wickersham (the wife of 
said I. Q. Wickersham), the legal interest of the grantor in 
her estate. He therefore still remained the legal owner of 
that interest." While such a contract of an heir-apparent 
may in some cases be enforced in equity as an agreement to 
convey, or by way of estoppel, it is not a conveyance of the 
legal title, and is not within the letter or spirit of section 1678 
of the Code of Civil Procedure. What was said in the opin- 
ion in Estate of Wickersham, 138 Cal. 355, as to the power 
of the court having jurisdiction of the estate of Mrs. Wicker- 
sham to determine all questions as to the enforcement in 
equity of the contract there involved, was obiter dictum, ft^r 
the only question there was as to the power of the court deal- 
ing with the estate of I. O. Wickersham. 

Respondent relies on section 1634 of the Code of Civil Pro- 
cedure, contained in the chapter relating to ** accounts," 
which provides that if a petition for final distribution be 
filed with the final account, the notices posted must so state, 
and in such case, ''on the settlement of said account, distri- 
bution and partition of the estate to aU entitled thereto may 
be immediately had, without further notice or proceedings." 
This section in no degree enlarges the scope of the inquiry 
that may be made by the court on distribution, but was de- 
signed simply to enable the court to make distribution in the 
cases there specified, to the persons entitled under the law to 
distribution, unthout further notice than t?iat specified in the 
section. The provisions as to the powers and duties of the 
court on distribution are to be found in the sections contained 
in the chapter, relating to the partition, distribution, and final 
settlement of estates, and the sections material to this contro- 
versy are sections 1665, 1666, and 1678 of the Code of Civil 
Procedure. Under these sections the only persons whose 

14a Am. St Bop. IM. 



Dec. 1903.] BsTATB of Rydbb. 371 

elaiiDS to distribution can be considered are those who claim 
directly from the deceased as heirs, devisees, or legatees, and 
those who claim as their assignees, under conveyances made by 
them subsequent to the death of deceased. 

Eespondent's claim is based upon section 1106 of the Civil 
Code, which provides as follows: ** Where a person purports 
by proper instrument to grant real property in fee simple, 
and subsequently acquires any title, or claim of title thereto, 
the same passes by operation of law to the grantee, or his 
successors.'* 

It may be that any title to this property that appellant ac- 
quires from deceased passes by operation of law to respond- 
ent, by virtue of the deed alleged to have been executed by 
appellant seventeen years prior to the death of deceased. The 
court had no right, however, against the objection of appel- 
lant, to determine on distribution whether or not any such 
deed was ever executed, or as to the effect thereof, for it was 
not a conveyance made by an "heir, legatee, or devisee." At 
most, it was an attempted conveyance by one who then had no 
transferable interest in the property here involved, and the 
determination of questions relating thereto is not within the 
scope of the probate proceedings, and is not authorized by 
the statute. 

The decree of distribution will judicially determine the 
question as to whether or not the appellant acquired any title 
to the property of his daughter under the law of succession, 
and a decree distributing the property to appellant will not 
estop respondent from asserting, in a proper proceeding, any 
claim she may have under section 1106 of the Civil Code to 
the title so determined to have been acquired by appellant. 

Our conclusion upon the question discussed makes it un- 
necessary to consider the other questions presented by this 
appeal 

The decree of the superior court distributing the property 
of the estate of the deceased to Mary Moore is reversed and 
the cause remanded for further proceedings. 

McFarland, J^ Van Dyke, J^ Beatty, 0, J., Lorigan, J^ 
and Henshaw, J^ concurred. 



872 Bbown v. City op Vkalia. [141 CpI. 

[Sac. No. 926. Department Two. — ^Deeember 22, 1903.] 

S. C. BROWN et al., AppeUants, ▼. CITY OP VISALIA ct 
al., Respondents. 

PuBUo Schools— Municipal Inoobpoiution Act — Pkiicakt and Gram- 
icAB Schools — ^Limitation of Levy — ^Revxmtts fob High School.— 
A eitj of the fifth claM, organized under the Mnnieipal Corporation 
Aet of 1883, whieh limited its power to the establishment of pri- 
mary and grammar schools, and to the levy of a maximum tax for 
their support, has additional power, under the subsequent enact- 
ment of sections 1669, 1670, and 1671 of the Political Code, to es- 
tablish and maintain a high school within the limits of the city; 
and such limitation of the amount of levy under the Municipal Cor 
poration Act has no application to the matter of providing a reve- 
nue for the maintenance of the high school so established. 

Id. — LxvT or Tazxs fob High School— Estimate or High-School 
BoABD. — It is the duty of the board of trustees of such city to levy 
a special tax for the support of the high school established therein, 
upon the estimate of the high-school board, whose duty it is to make 
such estimate yearly after the establishment of the high schooL 

APPEAL from a judgment of the Superior Court of Tu- 
lare County. W. B. Wallace, Judge. 

The facts are stated in the opinion of the court 

Alfred Daggett, and Maurice E. Power, for Appellants. 

D. E. Perkins, and Bradley & Farnsworth, for Respondents. 

LOEIQAN, J. — This appeal involves the validity of a tax 
levy for high-school purposes, made by the board of trustees 
of the city of Visalia. 

A demurrer to the complaint, seeking to enjoin the collec- 
tion of such tax, was sustained, and plaintiffis declining to 
amend, judgment was entered against them, and they appeal. 

Visalia is a city of the fifth class, organized under the Mu- 
nicipal Corporation Act of 1883 and amendments thereto, and 
has therein primary and grammar schools, and a high school 
and high-school district, duly organized and established un- 
der sections 1669, 1670, 1671 of the Political Code, as enacted 
in 1893 (Stots. 1893, pp. 268, 274), the boundaries of said 



Dec. 1903.] Bbowk v. City op Visalia. 373 

district being commezisarate with those of the said city of 
Visalia. 

In October, 1890, the board of education of said city, es 
such, presented to the board of trustees thereof an estimate 
of the amount of money required from said city, to maintain 
the primary and grammar schools therein for the current 
year, after deducting the amount which would probably be 
received from the state and county apportionment for that 
purpose. This estimate was twelve hundred and fifty dollars. 

Said board at the same time, but constituted however as a 
high-school board, pursuant to the requirements of subdivision 
14 of said section 1670 of said Political Code, also presented 
to the said trustees a separate, tabulated estimate of the 
amount of money required for conducting said high school 
in said city for the current year — said amount being some* 
thing over eleven thousand dollars. 

Thereafter, said board of trustees made its annual levy of 
taxes for municipal purposes, and in addition to a levy for 
primary and grammar school purposes, included therein a 
levy of eighty-four cents on each one hundred dollars for the 
high-school fund, based on the estimate of said high-school 
board, as presented to said trustees. 

It is this levy of eighty-four cents that the appellants claim 
is void. 

This contention is based upon certain provisions of the 
Municipal Corporation Act which govern the levy of taxes in 
municipalities of the fifth class, such as the city of Visalia, 
and which appellants claim limit the amount of the levy which 
the board of trustees could make for the support of public 
schools established within the city, including primary, gram- 
mar, and high schools. 

Referring to these provisions, on which this claim is based, 
subdivision 9 of section 764 of the act vests in the board of 
trustees power to levy and collect annually a property tax 
which shall be apportioned as follows: ** . . . For school 
fond not exceeding twenty cents on each hundred dollars 
. , . /' or possibly, under another section of the act, twenty- 
five cents on each hundred, for the like purpose. It is of no 
moment to the question involved here which provision gov- 
erns, because the amount levied is in excess of either limita- 
tion. 



874 Bbown v. City of Visalia.. [141 Cal. 

Section 978 thereof, defining the powers and duties of the 
board of education of such cities of the fifth class, authorizes 
them, first, ''to establish and maintain public, primary, kin- 
dergarten, grammar, and evening schools.*' From the aver- 
ments in the complaint it is apparent that the only schools 
maintained in said city under said section are primary and 
grammar schools. 

By subdivision 8 of the same section said board is also au- 
thorized "to determine annually the amount of money re- 
quired for the support of the public schools and for carrying 
into effect all the provisions of law in reference thereto," and 
"to submit ... a careful estimate of the whole amount of 
money to be received from the state and county, and of the 
amount to be required from such city for the above-mentioned 
purposes; and the amount so found to be required from the 
city shall, by the board of trustees, be added to the above 
amounts to be assessed and collected for city purposes, and 
when collected the proceeds thereof shall be immediately paid 
into the school fund of such city, to be drawn out only upon 
the order of the board of education." 

Those are the only provisions in the Municipal Corporation 
Act to which our attention is directed, or which have any 
bearing upon the subject under consideration. 

It is insisted by respondent that these sections of the code 
have no application to the matter at issue ; that the levy pro- 
vided for under the Municipal Corporation Act is for priuiary 
and grammar school purposes only ; that under the law none 
of said funds can be applied to high-school purposes, and that 
the money to be levied for such high school is to be levied by 
said board of trustees, not by virtue of the sections of the 
Municipal Corporation Act, but, under various subdivisions 
of section 1670 of the Political Code. These subdivisions, in 
as far as they are necessary to illustrate the point made by 
counsel for respondent, are as follows : — 

Subdivision 7 of said section (Stats. 1897, p. 81), provides: 
"In any city . . • which shall have established a high school, 
the board of education or board of school trustees shall consti- 
tute the high-school board and shall have the management and 
control of said high school." 

Subdivision 14 thereof declares that: "In any city . . . 
which shall have voted to establish and maintain a high school. 



Dec. 1903.] Brown v. City op Visalia. 375 

it shall be the duty of the high-school board therein to furnish 
to the authorities whose duty it is to levy taxes ... an esti- 
mate of the cost of purchasing a suitable lot . . . and erecting 
& suitable building, of furnishing the same . . . and of con- 
ducting the school for the school year. ... It shall be the 
duty of said board, each and every year thereafter, to present 
to said authorities ... an estimate of the amount of money 
required for conducting the school for the school year." 

Subdivision 15 provides that: "When such estimates shall 
have been made and submitted it shall be the duty of the 
authorities whose duty it is to levy taxes in said city ... to 
levy a special tax upon all of the taxable property of said city, 
sufficient in amount to maintain the high school, or to pur- 
chase the site, erect a building, or improve the buildings or 
grounds. Said tax shall be computed, entered upon the tax- 
roll, and collected in the same manner as other taxes are com- 
puted, entered, and collected.** 

And subdivision 18 of said section provides that all moneys 
so collected from a levy of such tax shall be paid into the 
treasury of the city, to the credit of the high-school fund, and 
paid out upon the warrants of the high-school board. 

These provisions, with the sections cited from the Municipal 
Corporation Act, constitute all the statute law upon the sub- 
jects, and upon a comparison and consideration of these pro- 
visions relied on by the respective parties, with such light as 
is thrown upon the subject in a general way by decision of 
this court relative to the organization of high-school districts, 
the power of their boards and the duty to provide for high- 
school maintenance, we are satisfied that the contention of re- 
spondent must be sustained. 

The stress of appellants' argument, that the provisions of 
the Municipal Corporation Act are conclusive upon the power 
to levy taxes for any school purpose, rests upon the assump- 
tion that the term ** school fund" in section 764 of said act 
comprehensively embraces the amounts to be levied for all 
school purposes — primary, grammar, and high school — and 
that the term "public schools" in section 798 embraces all 
schools within the public school system as defined by the con- 
stitution. (Const., art. IX, sec. 6.) 

The fact is, however, that the Municipal Corporation Act of 
1883, including the sections rdied on, was in existence long 



876 Bbown v. City of Visalia. [141 Cal. 

before any valid legislation was enacted (Pol. Code, sees. 1669, 
1670, 1671,— StatB. 1893), providing for the organization of 
high-scliool districts and the establishment and maintenance 
of high schools, and it can hardly be assumed that such schools 
were comprehended within the terms ** public schools," or 
"school fund," as used in the Municipal Corporation Act, 
when they had no existence in fact. At the time this Munici- 
pal Corporation Act was passed, the legislature, in harmony 
with the constitutional requirement (art. IX, sec. 5), had pro- 
vided for a system of common schools which embraced only 
primary and grammar schools, and all existing legislation on 
the subject had in view solely the establishment and supx>ort 
of such schools. 

Under the law they were, and are, to be supported primarily 
from the state fund and the fund derived from county taxes, 
and these funds are required to be devoted exclusively to that 
purpose {Stockton School District v. Wright, 134 Cal. 67), 
by the boards of education or boards of school trustees under 
whose control they are placed, supplemented by such an 
amount, derived from municipal taxes, as will make up the 
sum actually necessary for their support for the school year. 
It will be observed, too, that the only schools which the board 
of education is authorized to maintain, under the first subdi- 
vision of section 798 of the act, and necessarily over which it 
has control, aside from kindergarten and evening schools, are 
primary and grammar schools. 

This being true, it would seem only a reasonable conclusion 
to reach, that the fund to be provided by the trustees on the 
estimate of said board, and under the act, is for the only pur- 
pose the board can expend it — for maintaining the established 
primary and grammar schools. 

The board is not authorized to establish high schools, or to 
require or expend money for their maintenance; this latter 
power, it will be observed further on, belongs exclusively to 
the high-school board, and we are satisfied that this is what 
section 798 of the act contemplates, and alone contemplates, 
because the amount to be levied by the city is to be determined 
by taking as a basis of calculation the prospective state and 
county fund, and this is a proper factor to be taken into con- 
sideration only in estimating a fund for primary and gram- 
mar school purposes. So that construing this provision of it- 



Dec lBi)'6.l Brown v. City op Visalu. 377 

self, and in view of the fact that when it was enacted (because 
it is the same now as when ori^nally passed in 1883) there 
were no high schools in existence, and in the light of the con- 
gtitational provision which, while making high schools part of 
the school system, provides that ''the entire revenue derived 
from the state school fond and from the general state school 
tax shall be applied exclusively to the support of primary and 
grammar schools," together with the fact that the moneys de- 
rived from the county taxes can only be applied to maintain* 
ing primary and grammar schools, it is a reasonable deduction 
to be arrived at, that the amount so to be estimated by the 
board of education, and the amount to be levied by the trusteep. 
on such estimate — as far, at least, as high schools are con- 
cerned — ^is the difference between what would probably be re 
ceived from the state and county to be exclusively devoted for 
primary and grammar purposes, and the total amount actual- 
ly needed from the city, and authorized to be levied by the 
trustees for that purpose. 

Aside from this, however, the true solution of the question, 
we think, is to be reached more from a consideration of the 
subdivisions of the Political Code than an examination of the 
provisions of the Municipal Corporation Act. These code pro- 
visions (sees. 1669, 1670, 1671), providing for the establish- 
ment and government of high-school districts, and particular- 
ly the subdivisions of section 1670, heretofore set out, to our 
mind leave no doubt upon the subject. These provisions were 
intended to, and did, establish a system of schools — high 
schools — ^whichy while contemplated by the constitution, still 
no provision had theretofore been made for their organization 
and establishment 

Primary and grammar schools existed in all communities 
throughout the state, and their establishment and maintenance, 
whether existing in, or outside of, municipalities, had from 
the earliest date in the educational system of this state been 
fully provided for by law. In establishing high schools, the 
legislature — as nothing of a similar character had heretofore 
existed — ^had to provide a complete scheme for their establish- 
ment, the method of their government, and the manner of their 
maintenance. While it was intended to make their establish- 
ment, as the constitution provided, a part of the public school 
n^ystem, it was equally intended to make them entirely distinct 



878 Bbown v. City op Visalu. [141 CaL 

from primary and grammar schools — a different educational 
instrumentality, governed by a different board, provided with 
a distinct fund, to be secured in a different way from that pro- 
vided for securing funds for the common schools. The whole 
scheme of their creation evinces this purpose. 

While it is provided by subdivision 7 of section 1670 of the 
Political Code that the board of education in the city where 
the high school is established shall have control of that school, 
it is distinctly provided that such control shall be had, not as 
a board of education, but as a high-school board. For all pur- 
poses of controlling primary and granunar schools, it shall con- 
stitute a hoard of education, but as to high schools, it shall 
constitute a high-school board; and this distinction is made 
necessary because, under section 798 of the Municipal Act, the 
moneys obtained under the general levy provided for therein 
shall constitute the ** school fund," to be paid out under order 
of the board of education, while by subdivision 18 of section 
1670 of the Political Code the taxes derived under subdivision 
14 of said section shall be paid into the said treasury to the 
wredit of the *' high-school fund/^ and paid out only on the 
warrants of the high-school hoard. 

Now, coming to the vital question as to how this high-school 
fund is to be obtained : It must be conceded that, as far as the 
power of the board of education is concerned to estimate the 
amount necessary to conduct the schools of the city, as pro- 
vided by section 798 of the act, it does so solely and exclusively 
as a board of education. In estimating the amount necessary 
for maintaining the high school, by subdivision 14 of section 
1670, it acts exclusively and solely as a high-school hoard, Aa 
these boards are distinct, and as the board of education, as 
such, has control only over the school funds provided for the 
maintenance of primary and grammar schools, the only esti- 
mate it can make and furnish the board of trustees in that 
capacity is for the purposes over which it alone has control, 
to wit, primary and grammar school purposes; and as the 
board of trustees is required, under the same section, to add 
such amount found necessary by the board of education (less 
such amount as probably will be received from the state and 
county for school purposes) to the other amounts to be «9- 



Dec. 1903.] Bbowk v. City op Vbsama. 879 

sessed for city purposes, it must reasonably follow that, as its 
power to make the levy proceeds solely from the estimate of 
the board of education, that the only levy it can make under 
its general power to provide not exceeding twenty per cent for 
a school fund, is to provide the fund which the board of edu- 
cation as such can alone require and control, to wit: the fund 
necessary for primary and grammar school purposes only. 

On the other hand, by subdivision 14 of section 1670 of the 
Political Code, it is made the duty of the high-school board, 
as distinguished from the board of education, to furnish to the 
authorities whose duty it is to levy taxes (the board of trus- 
tees, if the high-school district is in a municipality ; the board 
of supervisors, if the district is outside a municipality) each 
and every year after the establishment of a high school, an 
ifitimate of the amount of money required for conducting the 
school for the school year. 

Subdivision 15 of the same section makes it obligatory on 
the authorities whose duty it is to levy taxes for said city to 
levy a special tax upon all the taxable property of said city, 
sufficient in amount to maintain the high school, and provides 
that said tax shall be computed and collected in the same 
manner as other taxes are computed and collected. 

It will be observed from the reading of these provisions that 
this estimate is to be made by the high-school board, and that 
the levy is not to be made under any general provisions of the 
Municipal Corporation Act empowering the eity to levy taxes 
for school purposes, but is to be the levy of a special tax, and 
therein, we think, lies the solution of the whole question. The 
board of education, acting under the Municipal Corporation 
Act, and having control over the fund for primary and gram- 
mar school purposes only, estimates the amount necessary for 
that purpose as such board, and under the general provision to 
levy a tax for a school fund, the board of trustees upon such 
estimate does so for the only purpose the board of education 
is authorized to require it ; the high-school board, acting as an 
independent body under the Political Code, makes its estimate 
for a high-school fund as distinguished from any other school 
fund, and the board of trustees, under subdivision 15 of th^ 



880 Beown v. Citt op Visalu. [141 Cal. 



code, levy a special tax, to be collected as other taxes of the 
municipality are collected. 

It was only proper, in providing for the establishment and 
support of high schools, that the legislature should provide 
that the revenue therefor should be collected by special tax, 
because when the establishment of these schools was author- 
ized and provision made for their maintenance, the Munici- 
pal Corporation Act had already placed a limit upon the 
amount which could be levied by the trustees for existing pri- 
mary and grammar schools — a limit within which a reasonable 
fund for those purposes, and no other, might be provided. 

Under such circumstances, it would hardly have been fair to 
require the amount necessary to establish and maintain a high 
school to be obtained within the same limitation. The result 
might be that revenue obtained within the limitation would 
not furnish a sufficient amount for the complete mainten&noe 
of either, and hence the efficiency of both institutions, which 
the law designed to foster, would be impaired. 

On the other hand, by requiring the revenue for the high 
school to be collected by special tax, the power of the board of 
tnistees to fully provide within the limitation for primary and 
grammar schools would not be impaired. This construction of 
these statute provisions is all the more reasonable when we 
take into consideration the fact that it has always been the 
duty of a municipality to establish and maintain primary and 
grammar schools, while it is entirely optional with it whether 
it shall establish and maintain a high school. In the begin- 
ning of this opinion we referred to the fact that the matter of 
high schools had been before this court several times, and whfle 
the particular point now under review was never presented, 
enough was involved to warrant the court in determining that 
high schools are governed by different laws of taxation than 
obtain in school districts generally, whether embraced within 
municipalities or not. (Chico High School Board v. Super- 
visors, 118 Cal. 115; Board of Education etc. v. Board of 
Trustees of Woodland, 129 Cal, 599.) 

In the first case, after quoting the constitutional provision 
jf section 6 of article IX, the court, at page 119, says : "It will 
be seen from this constitutional provision that while 'high 



Dec. 1903.] Beown v. City of Visaua, 381 

schools' are an integral part of our public school system, the 
expense of their maintenance is to be met by necessary taxa- 
tion, independent of the general school tax, and of the revenue 
derived from the state school fund. We think it apparent 
from the language used in 1670 . . . that the legislature com- 
prehended that the duty of levying taxes for the support of 
high schools would, under different circumstances, devolve 
upon different boards or authorities. Hence the high-school 
board is required to furnish estimates of the amount of money 
required *to the authorities whose duty it is to levy taxes.' " 
In People v, Lodi High School District, 124 Cal. 694, the court 
had under review the constitutionality of section 1670 of the 
Political Code. In that case the high-school district was not 
formed in any city, and hence the duty of levying taxes for its 
maintenance under said section was cast on the supervisors. 
The principle involved, however, is the same as if the high- 
school district embraced a city of the fifth class, because by 
section 1818 of the Political Code a limitation is as effectually 
placed on the powers of the board of supervisors, both as to 
the purpose of the fund and the amount of the levy, as is 
placed on the trustees under the Municipal Corporation Act. 
In the case referred to in considering subdivisions 14 and 15 
of said section relating to the levy of a special tax for the sup- 
port of high schools, the court says: ''It is claimed that the 
section is special legislation because it takes from the operation 
of the general law for the levy of taxes a certain class of school 
districts, and it applies to these districts alone, and vests in the 
board of supervisors a power to levy a tax which the general 
laws of the state do not give that board ; and gives to the high- 
school board initiatory powers with respect to taxation not 
possessed in any other district. All this may be true without 
making the law special legislation in the sense the term 
'special' is used in the constitution. It is within the power of 
the legislature to constitute these schools, and to provide for 
their support by methods different from those adopted for like 
purposes as to other schools. In a sense the provision had to 
be special, for no part of the state school fund or general school 
tax could be used to support the high school. The law is gen- 
eral in its operation, for it applies alike to all cities, incorpo- 
rated towns, and school districts having a population of one 
thousand inhabitants or more ; and it is general in its purpose. 



882 TowLB Beos. Co. v. Quinn. [141 CaL 

for it gives to all the inhabitants of the state similarly situated 
equal opportunity to avail themselves of the benefits to be de- 
rived from these schools. The nature and objects of these 
schools suggest a classification different from the common 
school corporation, and rationally justify the diversity in the 
legislation as to them." 

We are satisfied that high schools were intended to be and 
are oi^anized, and are required to be maintained under laws 
separate and distinct from those appljdng to other schools, and 
that the complete scheme for their organization, government, 
and maintenance is to be found in the provisions of the 
Political Code above cited. That the limitation as to the 
amount which, under the municipal act, a city of the fifth 
class may raise as a school fund, has no application to pro- 
viding revenue for the maintenance of a high school es- 
tablished in said city, but that under the provisions of sub- 
divisions 14 and 15 of section 1670 of the Political Code an 
additional duty is imposed upon the board of trustees to levy 
a special tax to be collected as other taxes are collected for 
the support of such schools. 

Entertaining these views, the judgment of the lower court 
is affirmed. 

McFarland, J., Angellotti, J., Shaw, J., Van Dyke, J., and 
HenshaWy J., concurred 



[8ae. No. 932. Department Two.— Deeember 22, 1903.] 

TOWLE BROTHERS COMPANY, Respondent, v. MRS. 
MARY QUINN et aL, Defendants; CHARLES F. 
HANLON, Appellant 

FoBECLOSuu or Mortgage — Jubisdigtiok or Ooubt — Action for Par- 
tition. — ^In an aetion for the foreeloeure of a mortgage, the court 
has merely jurisdiction to foreclose the mortgage sued upon and the 
rights of all parties holding under and subject thereto. It had no 
jurisdiction to reach over into a separate partition suit, begun prior 
to the execution of the mortgage by one of the tenants in common 
who were parties to that suit, and to take control and jurisdietioc 
thereof in the interest of the mortgagee. 



Dec. 1903.] TowLE Bros. Co. v. Quinn. 383 

Id. — ^DuTT or Mobtoaoue to Imtebvenb in Partition Suit. — The mort- 
gagee having no lien when the action for partition was begun, the 
plaintiff therein was not bound to make a party thereto; but it 
was the right and duty of the mortgagee to intervene in the parti- 
tion Buity and set up his mortgage lien, and have it adjusted in the 
partition deeree as provided by the code. 

APPEAL from a judgment of the Superior Court of Placer 
County and from an order denying a new trial E. D. Ham, 
Judge presiding. 

The facts are stated in the opinion of the court 

Charles F. Hanlon, and William O. Cousins, for Appellant. 

The respondent having no title when the partition suit was 
commenced, was not a necessary party thereto (Code Civ. 
Proc, sec. 754), and the mortgage that he took pendente lite 
not having been set up by way of intervention, the mortgagee 
is concluded by the interlocutory decree, which became final 
by failure to appeal therefrom. {Amador etc. Co. v. Mitchell, 
59 CaL 179; Hart v. Steedman, 98 Mo. 256; Loomis v. Riley , 
24 111. 310.) The adverse title of appellant could not be liti- 
gated in this foreclosure suit. {Wilson v. Bank of California, 
121 Cal. 630; San Francisco v. Lawton, 18 CaL 465.^) The 
court foreclosing the mortgage had no jurisdiction over the 
prior partition suit. 

(George W. Hamilton, for Respondent, filed no brief. 

MoFAELAND, J. — This is an action for the foreclosure of 
a mortgage, and defendant Hanlon appeals from the judg- 
ment in favor of plaintiff and from an order denying his 
motion for a new triaL 

Appellant has filed an elaborate brief in which he makes a 
number of contentions for a reversal. Respondent has not 
filed any brief, and has not made any reply, either written 
or oral, to appellant's points. Under these circumstances we 
cannot be expected to examine appellant's contentions as 
fully and closely as if respondent had presented us with some 
arguments, suggestions, or authorities tending to weaken 
those contentions. Apparently some of appellant's positions 
are tenable. 

m Am. Dm. MT. 



384 TowLE Bros. Co. v. Quinn. [141 CaL 

The mortgaged premises were owned before and at the 
time of the execution of the mortgage sued on by certain per- 
sons named Quinn, and the appellant, Hanlon, as tenants in 
common. On April 10, 1896, Hanlon brought an action 
against the Quinns for a partition of the premises, and 
prayed also for an accounting for rents, issues, and profits, 
and a judgment against the Quinns therefor. Six days after- 
wards he filed a lis pendens, and a receiver was appointed to 
take charge of the property. On April 7, 1897, an inter- 
locutory decree was made in said action, decreeing that Han- 
lon was the owner of one fifth of the premises and the Quinns 
four fifths, and awarding Hanlon costs in the sum of $38.05, 
and declaring that the Quinns had been in possession, re- 
ceiving the profits, etc.; that Hanlon was entitled to an ac- 
counting, and appointing a commissioner to take the account 
Afterwards the commissioner, having heard the matter, re- 
ported that the Quinns were indebted to Hanlon for the rents, 
etc., in the sum of two thousand dollars, and the court ren- 
dered judgment in Hanlon 's favor for that amount and costs. 
In the interlocutory decree the court found that the prop- 
erty could not be divided, that it should be sold and the pro- 
ceeds divided between the tenants in common, and appointed 
three referees to make the sale. The referees advertised 
the property for sale, but it had not been sold at the time 
the judgment in the present case was rendered. In the mean- 
time Hanlon had taken out an execution on his two-thou- 
sand-dollar judgment against the Quinns, had purchased the 
Quinns' interest at the sale, and had received a sheriff's deed 
therefor. No appeal was taken from the interlocutory decree, 
or from the said money judgment against the Quinns, and 
the time for appealing had expired. 

On February 15, 1897, — ^which was more than ton months 
after the commencement of the partition suit, — ^the Quinns 
executed the mortgage sued on to respondent to secure the 
sum of two hundred dollars. This mortgage was not re- 
corded until April 15, 1897, which was after the entry of the 
interlocutory decree in the partition suit. The respondent 
never appeared in the partition suit, nor sought in any way 
to assert his rights in that suit. He commenced the present 
foreclosure suit on June 14, 1899. The original complaint 



Dec. 1903.] TowLE Bros. Co. v. Quinn. 

was in form an ordinary complaint in foreclosure, with the 
usual prayer for the sale of the property, etc., — Hanlon being 
made a party defendant on the simple averment that he 
claimed some interest in the mortgaged premises. After* 
wards by leave of court, and over the objection of appellant, 
an amendment to the complaint was filed, in which the pro- 
ceedings in the partition suit, as above related, were set forth, 
and the referees appointed in the partition suit to sell the 
property were made parties defendant. And it was prayed 
that it be ordered that the premises be sold ''under the de- 
cree in partition," and that "this court order and direct the 
said referees to pay to this plaintiff the amount of its judg- 
ment herein from any sum arising from a sale of the premises 
under the decree in partition aforesaid that would other- 
wise be payable to the said defendants Quinn or either of 
them," and that respondent's judgment herein be ** first 
payable" out of the proceeds of the sale under the decree 
of partition, and judgment was entered in accordance with 
this prayer. 

Waiving other points made by appellant, we think that in 
this action to foreclose a mortgage, which is based on section 
726 et seq. of the Code of Civil Procedure, the court had no 
power to reach its hands over into the separate and inde- 
pendent action for partition, and take control and jurisdic- 
tion of such action. It had merely jurisdiction to foreclose 
the mortgage sued on, and order the mortgaged premises 
sold, and to foreclose the rights of all parties holding under 
and subject to the mortgage. The plaintiff in the partition 
suit was not called upon to make the respondent herein a 
party defendant, for he had no lien of record when that suit 
was commenced. (See Code Civ. Proc., sees. 752-801.) In- 
deed, when the suit was commenced respondent had no mort- 
gage at all ; and the one which was afterwards executed to it 
was not recorded until after the interlocutory decree, but 
respondent undoubtedly had the right, and it was its duty, 
to intervene in that suit and set up its mortgage lien, and 
have it adjusted in the partition decree as provided by the 
code. At least, it could not afterwards in its separate action 
to foreclose the mortgage, rightfully ask the court to cross 
OXLI. CaL— 25 



Bboksb v. Sghwebdtlb. [141 CaL 

oyer and take charge of the partition suit. This is not a bill 
to vacate a judgment on the ground of fraud, etc. 
The judgment and order appealed from are reversed. 

Lorigan, J., and Henshaw, J., concurred. 



[Sae. No. 1001. Department Two.— December 28, 1903.] 

DOROTHEA BECKER, formerly Dorothea Schwerdtle, Ap- 
pellant, v. JOHN GEORGE SCHWERDTLE, Respond- 
ent 

Trust — Gonfdential Bxlation — ^Mother jlhd Son — ^Plkading — Sur- 
nciXNOT or Ooicplaiki^— Actual Fraud. — ^In an aetion to enforce 
a trust in real property, and to eompel a eonT«yanee, a complaint 
showing the confidential relation of mother and son between the 
parties, and that the deed was ddiyered hj an aged mother to her 
son in expectation of her death, and npon the special trust and 
confidence reposed in him that in ease of her recovery he would 
pay her twenty dollars per month for her support, which he fraud- 
ulently induced her to believe that he would do, and that when the 
deed was delivered he did not intend to pay said sum for her sap- 
port, and wholly refused to do so, and claimed to own the property, 
which was of the rental value of sixty dollars per month, states 
a cause of action for relief on the ground of actual fraud, within 
the rule of Brison v. Brison, 75 Gal. 527.1 

la.— Uncertainty— Want of Express Promisr— SiLKNCfi — ^Tacpt 
Agreement — Ck)NSENT to Ck)NDiTioNS or Delivert op Deed. — ^The 
complaint is not demurrable for uncertainty because the complaint 
does not aUege an express promise by the defendant to make the 
monthly payments requested by the defendant's mother. It is 
sufficient that the averment of all the facts connected with the 
delivery of the deed show a silent acceptance of it under eireum- 
stances which made the silence equivalent to a tacit agreement and 
consent to the conditions which accompanied the delivery of the 
deed. 

APPEAL from a judgment of the Superior Court of Sao- 
ramento County. Peter J. Shields, Judge. 

The facts are stated in the opinion of the court. 
17 Am. St. Bep. 189. 



Dec. 1903.] Begseb v. Schwbrdtlb. 387 



A. L. ShinBy for Appellant 

The complaint states a cause of action for actual fraud 
growing out of confidential relations. (Brison v. Brison, 75 
Cal. 525 ;i S. C. 90 Cal. 323; Hayes v. Oloster, 88 Cal. 560; 
Butler V. Hyland, 89 Cal. 577 ; Boss ▼. Conway, 92 Cal. 632 ; 
Jackson v. Jackson, 94 Cal. 446; Eayne v. Herman, 97 Cal. 
250; White ▼. Warren, 120 Cal. 322; Odell v. Moss, 130 Cal. 
352; More v. More, 133 Cal. 489; Civ. Code, sec. 2235; 2 
Pomeroy's Equity Jurisprudence, sees. 955-958; 1 Story's 
Equity Jurisprudence, sec. 307; Beach on Trusts and Trus- 
tees, sees. 105, 106.) 

White & Seymour, for Be8X)ondent 

The complaint does not state a cause of action. (Civ. 
Code, sec. 1040; TiUaux v. TiUaux, 115 Cal. 663, 667-669; 
Smith V. Mason, 122 Cal. 426; Soberanes v. Soberanes, 97 
Cal. 140; Downing v. BademMher, 133 Cal. 220 ;2 Earle v. 
Chance, 12 B. I. 374.) In the cases cited by the appellant 
there was an express agreement made with intent to deceive, 
which is wholly lacking in this case. The allegations of the 
complaint are uncertain. {Sheehan v. Sullivan, 126 CaL 
189.) 

LORIQAN, J. — The lower court sustained a demurrer to 
the second amended complaint in the above action, without 
leave to amend. A judgment of dismissal was thereupon 
entered, and plaintiff appeals. 

The action was brought to have a trust declared as to cer- 
tain real property, and to compel a conveyance. 

The complaint sets forth that plaintiff and defendant are 
mother and son, the former aged sixty years, the latter thirty- 
six; that the most confidential relations always existed be- 
tween them, plaintiff reposing the greatest confidence in her 
said son, advising with him in all her business affairs, and 
believing that he would deal justly and fairly with her in all 
matters. That on September 2, 1898, she was the owner of 
certain real estate in Sacramento and Placer counties, of the 
value of four thousand dollars, and on that date, in harmony 
with a desire she always entertained that the defendant should 



17 Am. St. Bep. 189. '85 Am. St. Bep. KiU 



388 Begeeb v. Sohwebdtlb. [141 GaL 

■ — 

have all her property at her death, made and acknowledged 
a deed in his favor, intending to place the same in escrow, to 
be delivered to him on her demise. This was not done, how- 
ever, and she retained it in her possession. Thereafter, on 
March 31, 1899, plaintiff, becoming very ill, and being en- 
feebled in mind and body, fully believing that she would never 
recover from such illness, and that she had but a few days to 
live, and placing every trust and confidence in the defendant, 
and desiring him to have all her property on her death, and 
without seeking or obtaining advice from any person, and in 
expectation of impending death, delivered said deed to de- 
fendant, transferring to him all her property. That, at the 
time she delivered such deed^ she stated to defendant that, in 
case of her recovery, she would expect him to pay her twenty 
dollars per month for her support; that defendant did not 
say whether or not he would comply with said request, but 
having great trust and confidence in him she believed he 
would comply with it; that the consideration mentioned in 
said deed (love and affection and better maintenance, sup- 
port, protection, and livelihood of defendant) was not the 
true consideration thereof, but the only consideration was the 
trust and confidence plaintiff reposed in defendant, together 
with the desire that he should have all of her property at her 
death ; that she would not have delivered such deed had she 
not believed that she had but a short time to live, and but 
for the trust and confidence she reposed in her said son ; that 
contrary to her expectation she recovered from said iUness, 
but at all times since has been in ill-health, and without ade- 
quate means of support; that she has requested defendant to 
pay her said twenty dollars a month for her support, but he 
has refused to do so. She further avers that when said deed 
was delivered the defendant did not intend to comply with 
her request to pay said twenty dollars a month in case of her 
recovery, but, by accepting said deed and by his silenee, 
fraudulently induced her to believe that her request would 
be complied with ; that he now claims to own said property, is 
in possession of it, and that the value of the rents and profits 
thereof is sixty dollars a month. 

The complaint was demurred to on many grounds, and 
sustained generally, and it is particularly urged by re8X)ond- 
ent on this appeal that the allegations of the complaint ai« 



Dec. 1908.1 BbCKKB i;. SOHWiKDTLB. 

insufficient to warrant the interposition of a court of equity, 
and that the demurrer was properly sustained for that reason 
alone. 

We cannot agree with this claim. We think the allega- 
tions made out a case within the doctrine announced in Bf'ison 
V, Brison, 75 Cal. 527,* and approved in subsequent cases. 

In fact, it appears that the complaint in the case at bar is 
principally modeled after the complaint in that action, and 
in the light of that decision. 

While it is claimed by the appellant that the complaint 
sufficiently states a cause of action for both constructiye and 
actual fraud, it is evident that it was framed to particularly 
charge actual fraud ; such fraud consisting in the making of 
the promise under which the deed was delivered, without any 
intention of performing it, and coming within the provis- 
ion of the Civil Code declaring that a promise made without 
any intention of performing it constitutes actual fraud. 

Brison v. Brison deals fully with this provision of the 
code, in cases where confidential relations exist, and where, 
springing from that relationship, and as the consideration 
therefor, a conveyance is made under an agreement, which 
at the time it is made is not intended to be performed by the 
grantee. 

That was an action brought by a husband to set aside, for 
actual fraud, a conveyance made to his wife, the fraud al- 
leged being that the promise made by her upon which he 
ddivered the deed was in bad faith and false, and ''made 
with intent on her part to deceive and did deceive'* him. 
The lower court in that case, as in this, sustained a demurrer 
to the complaint, and on appeal this court in reversing such 
order and holding the complaint sufficient, said: **We think 
there was actual fraud. As above stated, the complaint shows 
that the parol promise upon which plaintiff relied was false 
and *in bad faith,' and 'made with intent to deceive.' The 
construction which we think must be given to this averment 
is, that the promise was made without any intention of per- 
forming it. This is a well-recognized species of fraud. (See 
Bigelow on Frauds, pp. 483, 484; Sandfoss v. Jones, 35 Cal. 
481, 482.) And the Civil Code expressly provides that 'Actual 



1 7 Am. St. Bep. 189. 



390 Beckvb v. Sohwebdtlb. [141 CaL 

fraud . . . consists in any of the following acts, committed 
by a party to the contract, or with his connivance, with in- 
tent to deceive another party thereto, or to induce him to 
enter into the contract. ... A promise made without any in- 
tention of performing it.' (Civ. Code, sec. 1572.) Now, 
inasmuch as it is admitted by the demurrer that the promise 
was made without any intention of performing it, we think 
the case falls directly within the provision. An instance of 
the application of the principle to facts similar to those of the 
case before us in Newell v. NeweU, 14 Kan. 202. It is to 
be observed of this ground that the essence of the fraud 
is the existence of an intent at the time of the prom- 
ise not to perform it. But for such intent there would 
be no actual fraud. For it is well settled that the mere 
failure to fulfill a promise is not fraud. . . . But if the 
evil intent existed, there was actual fraud, and so far 
as this ground is concerned, it is immaterial whether there 
was a confidential relation or not. . . . Nor is it necessary to 
consider what would be the rule in cases where it appears 
that there was in fact no actual confidence between the par- 
ties — that is to say, where the wife is living in independence 
of or in hostility to the husband. (See Fdlk v. Turner, 101 
Mass. 496.) For it is averred that the plaintiff 'had at aU 
times confidence in his said wife and her devotion and fidelity 
to him/ and that he made the deed having confidence in his 
said wife, and in her said representation and promises, and 
relying upon the same.' 

''The relation of the parties to each other, therefore, was 
confidential in fact, as well as in law. The plaintiff was in- 
duced to make the deed by the confidence which he had in his 
wife, and the belief thereby engendered that she would per- 
form her promise. But for that he would not have made it." 
{Brison V. Brison, 75 Cal. 527, 529.^) 

In the complaint now under consideration there are suffi- 
cient allegations showing the trust and confidence reposed in 
plaintiff by defendant, springing from the relationship of 
mother and son; his promise to her upon which she relied, 
and had a right to rely, when she delivered him the deed, and 
which she delivered solely on account of the trust and eonfi- 



1 7 Am. St. Bep. 189. 



Dec. 1903.] Beokicr v. ScHWBawvrLB. 391 

dence reposed in him ; his failure to keep such promise, and 
the further averment that when he made such promise and 
accepted the deed he had no intention of keeping the promise ; 
and these allegations, tested under the rule laid down in 
Brisan v. Brison, appear to be entirely sufficient. 

The cases of Newman v. Smith, 77 Cal. 26, NordhoU v. 
Nordholt, 87 Cal. 552,» and Hay v. Gloster, 88 CaL 565, 
are in harmony with Brison v. Brison. 

Respondent relies on the cases of TiUaux y. TUlaux, 115 
Cal. 667; Smith v. Mason, 122 Cal. 426; Soberanes y. Sobe- 
ranes, 97 Cal. 140, and Downing y. Radem^icher, 133 CaL 
220.^ But these have no application to the case made under 
the complaint Nor have the cases cited from other juris- 
dictions. 

In the TiUaux case no question of actual fraud was in- 
volved, and the facts show that there were no confidential 
relations upon which constructive fraud could be predicated. 
In Smith v. Mason the suit was not brought by the grantor, 
but by contending heirs after his death, and no question of 
fraud arose in the case. In Soberanes v. Soberanes no viola- 
tion of confidential relations was shown, and actual fraud was 
not involved. Downing v. Rademacher is inapplicable for 
like reasons. 

Counsel for respondent also contends that the lower court 
was warranted in sustaining the demurrer upon other 
grounds; that there is an improper joinder of causes of 
action, and that the complaint is uncertain in some particu- 
lars. We do not think these points possess any merit. 

One element of uncertainty claimed by respondent is, that 
it does not appear from the complaint that the defendant ever 
promised to comply with the request of plaintiff made at the 
time the deed was delivered to him. The plaintiff, however, 
undertakes to aver in her complaint all that took place at that 
particular time; the request, the accompanying delivery, and 
the acceptance of the deed without response. Such accept- 
ance under these circumstances, by defxindant, was a tacit 
agreement to comply with the request which accompanied the 
delivery. Silence under such circumstances is equivalent to 
consent. If he did not choose to accept the deed under the 



Am. St. Bep. 268. '87 Am. St. Bep. 160. 



392 SwASBT V. County op Shasta. [141 Cal. 

terms of coniidence reposed in him, it was his duty to have 
said so. Accepting it in silence, he is deemed to have agreed 
to whatever conditions accompanied the delivery. 

The judgment is reversed, with directions to the lower court 
to overrule the demurrer to the complaint, with leave to de- 
fendant to answer. 

McFarland, J., and Henshaw, J., concurred 



[8ae. No. 1008. Department Two. — ^Deeember 22, 1903.] 

F. M. SWASEY, Respondent, v. COUNTY OP SHASTA 
et al.. Appellants. 

County Government Act— **Bunj)iNG8" by County — ^*' Fence" 
— ^Duty to Advbetisb fob Bids — ^Prohibition. — ^Under the prorl- 
fdons of the County Qoyemment Aet, requiring that all neeessarj 
"buildings must be erected by contract let to the lowest responsi- 
ble bidder," after a required notice by publication, the term 
''buildings" is intended to include the erection of an iron "fence" 
around the grounds upon which the courthouse of the county ia sit- 
uated. It is the duty of the supervisors of the county to advertise 
for bids, and let the erection of such fence to the lowest bidder; 
and prohibition will lie to preyent the enforcement of a contract 
for its erection to a bidder without such advertisement and letting. 

APPEAL from a judgment of the Superior Court of 
Shasta County. Edward Sweeney, Judge. 

The facts are stated in the opinion of the court 

Tirey L. Ford, Attorney-General, U. S. Webb, Thomas B. 
Dozier, Francis Carr, and Reid, Dozier & Carr, for Appel- 
lants. 

Braynard & Perry, for Respondent 

McFARLAND, J.— This is an appeal by defendant from 
the judgment of the court below in a prohibition proceeding 
therein instituted, prohibiting and restraining the super- 



I 
Dec. 1903.] SwASBY v. County of Shasta. 393 | 

visors of Shasta County from executing a certain proposed 
contract with persons known as Parcells-Oreenwood Com- 
pany, for the construction by the latter of an iron fence 
around the grounds upon which the courthouse of said 
county is situated, and from taking any further action rela- 
tive to said contract. All questions as to the propriety 
of the remedy by prohibition and as to necessary parties de- 
fendant having been waived, we will not discuss tiiose quea- 
tions. 

The board of supervisors desiring to have an iron fence 
constructed around the courthouse grounds, on March 12, 
1902, the Parcells-Oreenwood Company presented to them 
plans and specifications of such fence and offered to con- 
struct it for $1,735 ; and at the same time one Masterson also 
presented to them plans and si>ecification8 for the same pur- 
pose, and offered to build the fence for $1,487.85. On the 
same day the board ordered that the contract be awarded to 
the Parcells-Oreenwood Company for the sum stated by them 
upon their execution of a contract in accordance with their 
plans and offer, to be approved by the district attorney and 
signed by the chairman of the board, etc. But prior to that 
time the board had not advertised for plans or specifications 
for said fence, and had not adopted any plans or specifica- 
tions, and had not given any notice that the contract for con- 
struction of the same would be let to the lowest responsible 
bidder; and for these reasons the court below held the con- 
tract void and prohibited any further action toward execut- 
ing and enforcing it. The question to be determined — as will 
hereafter be seen — ^is whether the word "building" as used 
in the County Government Act, includes the * 'fence" do- 
scribed in the petition for the writ of prohibition. 

Subdivision 8 of section 25 of the County Government Act 
(Stats. 1897, p. 459) provides that the board of supervisors 
snail have power ** under such limitations and restrictions as 
may be provided by law," to provide a courthouse, jail, and 
hospital, "and such other public buildings as may be neces- 
sary," etc., and it is further provided that none of such 
buildings shall be constructed until plans and specifications 
shall have been made therefor and adopted by the board, and 
that "all such buildings must be erected by contract let to 
the lowest responsible bidder, after notice by publication in 



394 SwASBT V. County of Shasta. [141 CaL 

a newspaper of general circulation published in the county 
for at least thirty days." If these provisions include the 
fence in question here, then the proposed contract was un- 
authorized, and the judgment of the court below prohibiting 
its execution is right. It will be observed that this case does 
not raise the question whether a municipality, having ac- 
cepted, used, and retained the services or the property of 
another, can repudiate payment on the ground that the con- 
tract therefor was not regularly made; here the purpose is 
to prohibit the making of the contract before any action 
under it. 

There is no well-established legal definition of the word 
''building" which absolutely, and under all circumstaneeSy 
either includes or excludes a ''fence." The question greatly 
depends upon the connection in which the word "building** 
is used, and the evident purpose of the statute or contract in 
which it is found. In Bouvier's Law Dictionary (Bawle's 
edition, vol. 1, p. 269) "building" is defined as follows: "An 
edifice erected by art, and fixed upon or over the soil, com- 
posed of stone, brick, marble, wood, or other proper substance, 
connected together, and designed for use in the position in 
which it is so fixed." This is about as good a general 
definition of the word as can be found in the books, and it 
undoubtedly includes in terms an ordinary fence. The same 
definition is given in the Century Dictionary, with this addi- 
tion: "Thus a pole fixed in the earth is not a building, but a 
fence is." But without taking these definitions as uncondi- 
tionally correct, we must, as before stated, look somewhat to 
the context and subject-matter of the instrument to be con- 
strued. Thus in Wright v. Evans, 2 Abb. Pr. N. S. 308, it 
was held that a covenant not to erect a building within a 
certain distance of a boundary-line was broken by the erec- 
tion within the prescribed distance of a fence twenty 
feet high — ^the purpose of the covenant evidently being 
to prevent obstruction of light and air; while in NoweA 
V. Boston Academy, 130 Mass. 209, it was held that the 
erection of a fence six feet high was not a building within 
a similar covenant. These cases illustrate the view above ex- 
pressed. Now, the legislature by the enactment of said sec- 
tion 25 of the County Government Act, in which the word 
** building" occurs, evidently intended to provide that the 



Dec 1903.] SwASBY v. County op Shaota- 395 

board of supervisors, except in some trivial matters expressly 
enumerated, shall not have power to purchase public supplies, 
or to sell public property, or to make contracts for construct- 
ive work, otherwise than by advertising proposals to bidders. 
For instance, subdivision 9 of the section provides that all 
sales of property no longer required for public use must be 
by public auction, after notice, unless in the unanimous judg- 
ment of the board it is not of greater value than seventy-five 
dollars ; subdivision 4, that all contracts for the construction 
of bridges, wharves, chutes, etc, exceeding in cost five hun- 
dred dollars, must be upon advertisements for bids; subdi- 
vision 21, that all ordinary county supplies shall be bought 
after advertisement for sealed bids; and by subdivision 7 it 
is provided that real property for the purpose of obtaining 
water for public use can be purchased only after advertise- 
ment of the intention of making such purchase, with the pro- 
posed price, etc., and the time when it will be considered. 
This being the general intent and purpose of the act, and, as 
we have seen, the word ** fence ' not being excluded from the 
definition of the word ''building," we think that the caae at 
bar presents an instance where the latter word should be held 
to include the former. This view makes it unnecessary to 
determine whether the act of the legislature approved April 
1, 1872, (Stats. 1871-1872, p. 925,) entitled '*An Act to regu- 
late the erection of public buildings and structures," in which 
the word "structure" is used, has been impliedly repealed by 
the County Grovernment Act. 

The judgment appealed from is a£Srmed« 

Lorigan, J., and Henshaw, J., concurred. 

Hearing in Bank denied. 



CouNTT OP Butte v. Merrill. [141 CaL 



[8ae. No. 974. Department Two.— December 23, 1903.] 

COUNTY OP BUTTE, Respondent, v, D. P. MERRILL et 
al., Appellants. 



TAZ-GOLLIOTOS — OOMinSSION on LICXN8S-TaZX8 — POWKB OF SUPEBTIB- 

OBS — ^AonoK ON Bond. — The board of sapenrieori of a coonty have 
no power either to ereate a licenae-taz eoUeetor or to fix his eom- 
penaation; and an ordinance conferring the right upon the tax-eol- 
lootor to retain a commiBsion for the coUection of licenae-tazeB le 
▼old, and eonetitutes no defense to an action b7 the eountj on hie 
official bond to recover the amount of license-taxes retained as saeh 
commission, where the law made it the dntj of the tax-collector to 
collect all licenses when he took the ofiice of tax-collector. 

In.~PowEB or LnnsL^TniUD— BiTBOAomrx L^w— Inobiabb ov Oom- 
PBNBATiONw — The legislature cannot pass a retroactive law to give 
the collector increased compensation over that fixed by law when 
his term commenced, nor can any increase in the rate of compensa- 
tion made after the commencement of his term be held applicable 
daring his term. 

Id. — Theoby OF Tbial — Answxb — Stipuiatb) Fact — Waiveb of 
Amended Complaint — Suppobt of Judgment. — Where the original 
complaint included license-taxes between January, 1895, and Janu- 
ary, 1898, but it was averred in the answer that the tax-collector 
had collected the taxes in contest between January, 1895, and 
January, 1899, and the trial proceeded upon that theory, and ihe 
parties made a written statement of facts as to the amount of 
license-taxes received between the dates alleged in the answer, an 
amendment of the complaint as to the time within which the money 
was collected was waived, and a judgment for the amount stipulated 
is sufficiently supported. 

Id. — Action Obdsbed by Gband Juby — Penal Code — ^Validity of I^at 
UTE — Blending of Codes. — The grand jury had power, under sec- 
tion 929 of the Penal Code, to order the action commenced by the 
county to recover the license-taxes collected and not paid over. 
That section is embraced in the title of the act establishing it, and 
is not void as not being criminal in its nature, and improper^ 
placed in the Penal Code. A statutory provision otherwise valid is 
not void because found in any particular code. The codes blend 
into each other, and no one of them is limited to a particular sub- 
ject. 

APPEAL from a judgment of the Superior Court of Butte 
County. John F. Ellison, Judge presiding. 

The facts are stated in the opinion of the court 



Dec. 1903.] County of Buttb v. Msbbilu 397 

Caldwell & Borland, and John Qale, for Appellants. 
J. D. Sproul, for Respondent 

McFARLAND, J.— The defendant Merrill was county tax- 
collector of Butte County from January, 1895, to January, 
1899; and this is an action against him and his bondsmen 
to recover the sum of $3,245.05, collected by him as such tax- 
collector during his said term of o£Sce and converted to his 
own use. Judgment went in the court below in favor of 
plaintiff for the said amount of money, and defendants ap- 
peal from the judgment. 

The money sued for is part of the whole amount of license- 
t&xes collected by appellant Merrill, and consists of money 
which he contends he had the right to retain as commissions 
allowed him by law for the collection of license-taxes. 
Whether or not he has that right is the question here in- 
volved. 

Appellant contends that he is entitled to retain the money 
here in question by virtue of an ordinance of the board of 
supervisors of Butte County, passed February 10, 1893, and 
another ordinance passed March 3, 1894, — ^both passed before 
Merrill was elected to or commenced his said term of office, — 
which ordinances provided that for the collection of taxes 
for business licenses, other than for the sale of liquor, the col- 
lector should receive as compensation ten per cent of the 
amount collected, and should receive five per cent for the 
collection of taxes for liquor licenses. If said provisions in 
said ordinances were valid, then respondent was not entitled 
to recover in this action. But the lower court correctly held 
that when Merrill took the office of tax-collector the law made 
it his duty to collect all licenses. {Ventura County v. Clay, 
112 Cal. 63.) It further correctly held that the board of 
supervisors had not the power either to create the office of 
license-tax collector or to fix his compensation. {County of 
El Dorado v. Meiss, 100 Cal. 273.) It was decided in Dough- 
erty V. Austin^ 94 Cal. 601, that a board of supervisors has 
nothing to do with fixing the compensation of a county 
officer. Appellants also rely upon the act of the legislature, 
approved March 27, 1895 (State. 1895, p. 267), which in 
terms approves and legalizes the commissions theretofore 



398 County op Butte v. Merrill. [141 CaL 



allowed by board of supervisors for the collection of license- 
taxes ; but the court below correctly held that this was merely 
an unauthorized attempt, retroactively, to give the collector 
increased compensation over that fixed by law when his term 
commenced. Appellants also rely in their briefs, though not 
in their pleadings, upon section 215 of the County Qovem- 
ment Act of 1897 (Stats. 1897, p. 572), which allows a 
commission of five per cent for the collection of license-taxes; 
but as that act was passed after the commencement of Mer- 
riirs term of office, the court below correctly decided that it 
could not be held applicable during his term, without violat- 
ing the const itutionaJ provision against an increase in com- 
pensation during the term of an incumbent. 

It is contended that the judgment cannot stand, because it 
is for taxes collected between January, 1895, and Janu- 
ary, 1899, while the complaint only includes the period 
between January, 1895, and January, 1898. But it was 
averred in the answer that Merrill was collector, and 
had collected the taxes in contest, ''until the second day 
of January, 1899," and in other parts of the answer 
the period between January, 1895, and January, 1899, 
is referred to as the period during which the matters in 
litigation arose; and the parties entered into a written ''state- 
ment of facts," in which it is stated that Merrill as tax-col- 
lector, "between the seventh day of January, 1895, and the 
first day of January, 1899, received the sum of $3,245.05." 
It sufficiently appears, therefore, that the case was tried an 
the theory that it involved Merrill's whole term, and that 
an amendment to the complaint as to the time within which 
the money was collected was waived. 

It is averred in the complaint that the action was com- 
menced in compliance with an order of the grand jury made 
under section 929 of the Penal Code, which gives the grand 
jury the power to order the institution of such an action. 
Section 929 was passed in 1897, and appellants contend 
that it is unconstitutional and void, because its subject was 
not embraced in the title of the act under which it was en- 
acted. It is not necessary to determine whether the action 
could have been maintained without any reference in the 
complaint to the action of the grand jury, for the title of the 
act was sufficient. It is as follows : "An act to amend sectione 



Dec. 1903.] WiNROD v. Wolters. 399 

925 and 928 of the Penal Code of the State of California, 
to add a new section to said code, to be known as section 
929, relating to grand juries, their duties and powers.'' 
(Stats. 1897, p. 204.) The main objection appears to be 
that the section is not criminal in its nature, and therefore 
could not be constitutionally put into the Penal Code; but 
it has been frequently held that a statutory provision other- 
wise valid is not void because found in any particular code; 
that the codes blend into each other, and that no one of them 
is limited to a particular subject. 

There are no other points calling for special notice. 

The judgment appealed from is affirmed. 

Lorigan, J., and Henshaw, J., eoncurred. 



[Sac. No. 992. Department Two. — ^December 23, 1903.] 

T. E. WINEOD et al., Appellants, v. J. C. WOLTERS et al.. 

Respondent. 

Pbkterred Claims of Laborebs fob Wages — CSonstbugtiom of Oode-^ 
Lien not Given. — Section 1206 of the Code of Ciril Procedure, 
giving preferred claims to laborers for tbdr wages, provides % rem- 
edy for their enforcement which is exdnsive, and ereates no lien 
upon the debtor's property which can be enforced or foreclosed in 
equity. 

Id.— Injunction— Dismissal of Attachment Suit— Enforcement chp 
Lien. — ^Laborers having preferred claims cannot maintain an in- 
junction to prevent an attaching creditor from dismissing his at- 
tachment suit after notice given to such creditor of their preferred 
claims according to law; nor can they enforce a lien in equity as 
against such creditor and the debtor and the sheriff who levied the 
attachment. 

Ii^. — Jurisdiction of Supekiob Court — Void Judoment and Execution. 
— Several laborers, no one of whom has a claim equal to three hun- 
dred dollars, and who have no joint interest, cannot give jurisdiction 
to the superior court by a joinder of their several claims in one ac- 
tion. The superior court had no jurisdiction of the subject-matter 
of said action, and no power to render a joint judgment in favor of 



400 WiNROD v. WoiiTBRS. [141 CaL 



the several plaintiffs. Such judgment is void upon the f^Ae of the 
record, aod the ezeeution issued thereupon is void, and was prop- 
erly qua&hed. 

APPEALS from a judgment of the Superior Court of 
Sierra County and from an order denying a new trial, and 
from an order quashing execution. Stanely A. Smith, Judge. 

The facts are stated in the opinion. 

F. D. Sowardy for Appellants. 

The suit was in equity. The fact that the dalms when 
established would be the subject of a preferred lien upon 
the funds in the hands of the sheriff distinguished this action 
from a mere suit for wages. {EdsaU y. Short, 122 Cal. 533 ; 
Kimball v. Richardson^ 111 Cal. 386.) The judgment was 
not void because the court granted part only of the relief 
prayed for. 

Frank B. Wehe, for Bespondents. 

The plaintiffs had no lien upon the property, but a purely 
statutory remedy. (Code Civ. Proc, sec. 1206.) The legal 
remedy cannot be aided in equity. (1 Jones on Liens, sec 
94; Buchan v. Sumner, 2 Barb. Ch. 165.*) The judgment 
rendered was void for want of jurisdiction, and is no judg- 
ment. {Myers v. Sierra VaUey etc. Assn., 122 Cal. 669; 
People V. Oreen, 74 Cal. 405;* Freeman on Judgments, sec 
117.) The execution was therefore void, and was properly 
quashed. 

GEAY, C. — ^The defendant Wolters commenced an action 
against Bullock, Whitmore, Turner et al., as mining partners 
doing business under the firm name of Harmonia Mining 
Company. In said suit a writ of attachment issued, and 
under it the sheriff took into his possession certain property 
supposed to belong to the copartnership defendants in said 
action. Thereupon the plaintiffs in this case, under the 
provisions of section 1206 of the Code of Civil Procedure, 
gave notice by verified statements of their claims against 
the defendants in that case for labor performed within sixty 



147 Am. Dee. S05. 1 5 Am. St. B«p. 448, tad BOim 



Dec. 1903.] WiNBOD v. Woltees. 401 

days next before said attachmenty which notice was served 
as provided by the statute. It was then discovered by the 
plaintiff therein, Wolters, as well as by the labor claimants, 
that the Harmonia Mining Company was a corporation, and 
not a partnership, and nothing further was done in that 
action. The labor claimants then commenced the action now 
before us on appeal, in which they make Wolters, the Har- 
monia Mining Company (a corporation), and Busch, the 
sheriff who levied the attachment, defendants. 

The complaint sets up the foregoing facts and avers ''that 
the plaintiffs have no speedy or adequate remedy at law or 
by motion in said suit No. 1002 (the attachment suit), and 
that the Harmonia Mining Company (a corporation) is in- 
solvent.'' It also alleges: "That these plaintiffs heretofore 
moved in said case, No. 1002, for an order requiring the 
aforesaid sheriff to sell said attached property, but that 
the court on the objection of said J. C. Wolters denied the 
motion, and that they thereafter moved in said case for per- 
mission to file a cross-complaint therein, alleging substantially 
the same facts as are herein alleged and bringing in said 
slieriff and said Harmonia Mining Company (a corporation) 
as new parties, but that this motion, like the other, was on the 
objection of said J. C. Wolters, denied." 

It is also averred that unless restrained Wolters will at- 
tempt to dismiss the suit No. 1002 and attempt to release 
the property from attachment. The prayer of the complaint 
is, tliat Wolters be enjoined from the threatened dismissal 
and release; that the lien of these plaintiffs as preferred 
creditors under said section 1206 on the attached property, 
be foreclosed, and said property sold to satisfy the demands 
of these plaintiffs, together with costs; and that plaintiffs 
have a deficiency judgment against the corporation, and gen- 
eral relief. The defendants answered, a trial was had, result- 
ing in a judgment denying plaintiffs all relief except a money 
judgment against the corporation for the aggregate amount 
due them. Execution was issued upon this judgment and 
levied upon the same property taken in the attachment suit. 
Thereupon Wolters moved to quash the execution on the 
ground that the judgment is void for the reason that the 
demand s^ied on by any of the plaintiffs does not equal, but 
CTTiT CaL— 26 



402 WiNROD V. WOLTBBS. [141 CaL 

is less than, three hundred dollars. This motion was g^rantecL 
The plaintiffs appeal from that part of the judgment deny- 
ing the foreclosure and equitable relief, and from an order 
denying them a new trial, and also from the order recalling 
and quashing the execution. 

We think the refusal of the equitable relief was correct 
In the first place, section 1206 of the Code of Civil Procedure 
gives only a preferred claim against the debtor and prescribes 
the manner of enforcing this claim. It carries with it no 
lien upon the debtor's property, and says nothing about a 
lien. When the legislature intends to give a lien, it says so, 
and prescribes the conditions under which it shall exist, as in 
the Mechanics' Lien Law and in the statutes giving laborers 
liens upon certain property. Had the legislature intended 
to confer a lien in the case under consideration, there was 
nothing to prevent it from saying so in apt words. It must 
be, then, that the law confers no lien, and there being no 
lien there could be no foreclosure. 

Nor can the equitable jurisdiction of the court be invoked 
where the parties have an adequate remedy at law. A plain, 
speedy, and adequate remedy at law was open to the plaintiffs. 
When they discovered that the defendant was a corporation 
and not a partnership, they might have brought attachment 
suits in the justice's court (their respective claims being un- 
der three hundred dollars) and attached all this property as 
the property not of any partnership but as the property of the 
corporation. If they had found attachments ahead of theirs 
against the corporation, they could then have proceeded to 
enforce their preferred labor claims under the statute; or if 
the plaintiffs had sought to amend their complaint in the 
original action against the partnership so as to make the cor- 
poration a defendant therein, then also these labor claims 
could be secured under the statute. The plaintiffs have gone 
out of their way in asking for relief of an equitable nature 
when they had an ample remedy at law. 

We also think the action of the court proper in quashing 
the execution and ordering the property released therefrood. 

The complaint in this action shows affirmatively that no 
plaintiff has a claim against the corporation defendant equal 
to or greater than three hundred dollars. It also shows that 



Dec. 1903.] EsTATB of McEeao. 403 

plaintiflis had no joint interest in the aggregate of their 
claims, but that each had a separate claim, and was entitled 
only to a separate judgment against the corporation for the 
amount of his claim. The court, therefore, had no power 
to enter the joint judgment that it did enter, and, the several 
claims each being less than three hundred dollars, no juris- 
diction of the subject-matter of the action. The judgment 
was therefore void on the face of the record, and the execu- 
tion likewise void. And it is immaterial whether the other 
creditors of the corporation had such interest as would en- 
title them to move in the premises or not. The court has the 
I>ower of its own motion to declare that void which dearly 
appears to be void on the face of the records. {People v. 
Greene, 74 CaL 400.*) And the court's action in reference 
to the execution may be upheld on this theory. 

We advise that the order quashing the execution be 
affirmed, that the judgment appealed from be affirmed as it 
now stands, and that the order denying a new trial be also 
affirmed. 

Haynes, C, and Cooper, C, concurred. 

For the reasons given in the foregoing opinion the order 
quashing the execution is affirmed, and the judgment ap- 
pealed from is affirmed as it now stands, and the order deny- 
ing a new trial is also affirmed. 

McFarland, J., Lorigan, J., Henshaw, J. 



[8a6. No. 1136. Department Two.-— December 23, 1903.] 

In the Matter of the Estate of CORA V. McKBAG, Deceased 
FRANCES SMITH MOXLEY, Appellant, v. 
CHARLES J. TEASS et al., Respondents. 

Estates of Dbcxasxd Pzbsons — ^Lbtters or Administration — Bights 
OF Adopted Daughter. — An adopted daughter of a deceased per- 
son who is sole heir to the decedent is entitled to administer upon 
the estate, and letters of administration were properly granted 
to her husband upon her request. 



i6 Am. Si. Bep. 4AS, and note. 



404 EsTATB OP McKeag. [141 CaL 

Id.— Validity of Pbockbdinqs fob Adoption— CJollatbral Attacit — 
Consent of Pabents — Appeaaancs at Hearing — Recital in C»b- 
der — PsESUiiPTiON. — Where the written consent of the daughter 
and of her father and mother to the adoption were filed, and the 
adopting parents applied for the order of adoption, and filed thMr 
written agreement of adoption, and the adopting order recited that 
the petitioners and said minor child, "and all persons whose con- 
sent is necessary have appeared herein as required bj law," the 
order must be deemed sufSoient, upon collateral attack thereupon, 
and it must be presumed upon such attack that the court did its 
duty, and found from extrinsic evidence the existence of all juris- 
dictional facts, and determined whether the presence of the parents 
of the minor at the hearing was necessary or not, and, in the ab- 
sense of any finding that it was not necessary, that the court found 
that the presence of the father was necessary, and required his 
appearance at the hearing; and the fact of such appearance sufi!- 
eiently appears upon the face of the order, as against the eollateral 
attack. 

Id. — PoLioT OF Adoption Laws — Beasonablb Construction to Sus- 
tain Proceedings. — The policy of adoption laws is to be regarded 
with favor. Although the proceedings under the statute are not 
strictly judicial, they call for the exercise of judicial functions; 
and such a reasonable construction should be given them as will 
sustain rather than defeat the object they have in view, and will 
sustain the assumed relationship, particularly as against a collateral 
attack by strangers to the proceedings, whose only interest is to 
defeat the relations which the adoptive parents always recognized 
and never questioned, so that they may succeed to an estate from 
which, by the very fact of adoption, the adoptive parents intended 
they should be excluded in favor of the adopted child. 

Id. — Jurisdiction of Proceedings — Examination in Court — Error of 
Procedure. — The court in which the adoption proceedings were 
had having obtained jurisdiction of the parties, the failure of the 
judge to examine them at the hearing was an error of procedure 
which cannot affect the validity of the adoption. 

Id. — Estoppel of Heir Claiming under Adoptive Mother. — ^The adopt- 
ive mother was estopped in her lifetime from questioning the 
validity of the adoption proceedings as respects mere irregularities 
in the method of procedure; and an heir claiming under the adopt- 
ive mother, as against the adopted daughter, stands in no better 
right to attack them than the deceased would have had. 

APPEAL from an order of the Superior Court of Shasta 
County refusing to revoke letters of administration. Ed- 
ward S weeny y Judge. 

The facts are stated in the opinion of the court. 



Dec. 1903.1 Estate of McKbaq. 405 

W. M. Cannon, and Frank Freeman, for Appellant. 
McCoy & GanSy for Bespondents. 

LOBIOAN, J. — This is an appeal from an order of the 
saperior court of Shasta County, refusing to revoke letters 
of administration in the above estate, and the real point in- 
Yolyed is as to the validity of certain adoption proceedings. 

The respondent Charles J. Teass is the husband of Helen 
McKeag-Teass, and was appointed administrator of said 
estate ui)on the request of his wife, who claimed to be the 
adopted daughter, and, as such, sole heir of deceased. At the 
time of the alleged adoption, Mrs. Teass, then Helen Skeels, 
was a minor, over the age of twelve years, and the daughter 
of Spencer L. and Anna E. Skeels. 

On December 2, 1895, William McKeag and the deceased, 
Cora V. McKeag, his wife, jointly applied to the judge of the 
superior court of Shasta County for an order of adoption by 
them of said child, and filed therewith their written agreement 
of adoption required by law. The written consent of said 
minor was likewise filed, together with that of her father and 
mother consenting to and authorizing the making of such or- 
der of adoption. 

Thereafter the judge of said superior court made and filed 
an order for the adoption by said William and Cora V. Mc- 
Keag of said minor, which order recited, among other things : 
^'That the petitioners and said minor child, and all persons 
whose consent is necessary, have appeared herein as provided 
by law, and ... it is hereby ordered that said petitioners 
William McKeag and Cora V. McKeag, his wife, adopt said 
minor child . . . and said minor child shall be treated by 
them in all respects as their own lawful child should be 
treated, including the right of inheritance, . . . and shall 
bear to each other and toward each other the relation and 
relations of parents . . . and child." 

Prior to said adoption, said minor had, for some six or 
seven years, been living with said William and Cora McKeag, 
and after said adoption continued to live with them until 
their death — William McKeag dying a couple of years before 
his wife. William and Cora Y. McKeag had no other chil- 
dren, and a strong feeling of parental love and afiFection 



406 Estate of McKbao. [141 CaL 

existed at all times between the adoptive parents and said 
child, and so continued to the death of the former. 

Said Cora V. McKeag died intestate in Shasta Connty in 
Joly, 1901, and after the issuance of letters of administration 
to said respondent, the appellant, a sister of said deceased, 
claiming to be one of the heirs at law, petitioned to have 
the letters issued to respondent revoked, and letters issued 
to herself, which petition was denied. 

Upon the hearing in the lower court, the validity of the 
adoption proceedings was the sole point in issue, as it is the 
sole question for determination here. 

The appellant claims, — 1. That the judge before whom the 
adoption proceedings were had, acquired no jurisdiction to 
make the order of adoption, because the father of the minor 
child did not appear personally before him during any part 
of the proceedings; and 2. That neither the adopting parents 
nor the father of the minor, nor the minor herself, were 
examined by the judge on the hearing, either separately, or 
at all. 

Upon the first point it is insisted that it is not enough 
for the adoption proceedings to show that the father con- 
sented in writing to the adoption of his child, but that the 
order of adoption should affirmatively show that he was ac- 
tually present at the hearing upon the petition. We think, 
however, on this collateral attack, that the fact does suffi- 
ciently appear upon the face of the order from the recital 
therein ''that the petitioner and said minor child, and M 
persons whose consent is necessary, have appeared hereii^ 
as provided by law." 

In the Estate of Camp, 131 Cal. 470,^ it is said: '* While 
the proceedings for the adoption of a minor child do not con- 
stitute judicial proceedings, and the order of the judge 
therein is not the judgment of a court, yet under section 227 
of the Civil Code, the judge of the superior court has been 
designated as a tribunal for that purpose, and in the perform- 
ance of his duties thereunder exercises judicial functions. It 
is a well-settled rule that when the jurisdiction of an inferior 
or special tribunal, or its power tjo act in any particular 
case, depends upon the existence of a fact which is to be estalh 



1 82 Am. 8t. Bep. 871. 



Dec. 1903.] Estate of MoKeag. 407 

lished before it by extrinsio evidence, the determination of 
that fact by the tribunal cannot be questioned in a collateral 
attack upon its order. . . . Whether the children had been 
abandoned by their parents was a jurisdictional fact to be 
determined by the judge upon the evidence presented to him 
before he was authorized to entertain the petition for their 
adoption, and the recital in his order that it appeared to his 
satisfaction that they had been abandoned by their parents 
wajs a determination of this fact which cannot be questioned 
in a collateral attack upon the order. Otherwise, the exist- 
ence of this fact and the status of the children would be 
always uncertain, since the evidence might not be the same 
at all investigations, and might be regarded with different 
effect by different tribunals, and the adoption be held by one 
court to have been valid, while another court would hold it 
to have been of no avail. Whether the parents of the child, 
in a direct proceeding against the adopting person for the re- 
covery of the persons of the children, would be bound by 
the determination of the judge, is not involved herein." 

So, in the case at bar, it was a jurisdictional fact, to be 
determined by the judge from extrinsic evidence, whether 
the consent of the father waa necessary to the adoption, and, 
if so, to require hi;3 presence before him at the hearing. While 
the general rule is, that a child cannot be adopted without 
the consent of its parents, there are several exceptions to the 
rule; as, for instance, if either parent has been deprived of 
civil rights, or adjudged guilty of cruelty or adultery, and 
for that reason divorced, or adjudged an habitual drunkard, 
or has abandoned the child. In any of these cases the eonseni. 
or presence of such parent is unnecessary. Otherwise it is. 
Upon the appearance before the judge of the persons seek- 
ing to adopt the child and the child, he acquires jurisdiction 
to entertain the petition for adoption, but at this point it is 
only jurisdiction to preliminarily investigate and determine 
whether the presence at the hearing of the parents of the 
minor child is necessary or not 

One parent being present and consenting, it is still in- 
cumbent upon the judge to ascertain whether the consent 
and presence of that parent alone is necessary to the re- 
linquishment of the child, and to confer full jurisdiction to 
proceed with the hearing and make the order of adoption. 



408 Estate of MgEeag. [141 CaL 

If it should be ascertained upon such inquiry that the 
child has another parent living who possesses a right to itEi 
care, custody, or control, it is the duty of the judge to decline 
to proceed with the hearing on the petition until the consent 
and presence of such parent are had; on the other hand, 
should the inquiry disclose that such parent, if living, comes 
vrithin any of the exceptions of the statute, the consent or 
presence of such parent is unnecessary. In all cases it be- 
comes necessary to determine this jurisdictional fact. In the 
case at bar it must be presumed that the judge properly 
discharged his official duty, and, in the absence of any ex- 
press finding that the presence of the father was unnecessary, 
by reason of coming within any of the exceptions (and the 
presumption is in favor of the general rule, not of the excep- 
tion), determined that his presence was necessary, and re- 
quired it, and in harmony with his written consent the father 
actually appeared at the hearing, and that the fact of such 
actual presence is embraced in the finding ''That all persons 
whose consent is necessary have appeared herein as provided 
bylaw." 

The finding, it is true, is somewhat open to the objection 
that it is equivocal and uncertain in its language. It might 
have been more definite. In fact, in the various cases affect- 
ing adoption proceedings which have required the attention 
of this court, much of the difficulty in considering them 
has arisen from the apparent inattention to the plain pro- 
visions of the statute; these provisions are so simple, and so 
MVLKih depends upon substantial compliance with them, par- 
ticularly as to the future interests of the child, that the sim- 
plicity of the one and the paramouut interest of the other 
should command more attention at the hands of the judge 
called upon to act. While proceedings under the statute 
are not strictly judicial, they call for the exercise by the 
judge of judicial functions, and in construing them such a 
reasonable construction should be given them as will sustain 
rather than defeat the object they have in view. 

There is nothing that can be said against the policy of 
adoption laws; there is everything that can be said in their 
favor. Under them, innocent parentless and abandoned chil- 
dren are withdrawn from the charity of public institutions, 



Dec. 1903.] Estate of McKeag. 409 

and provided with comfortable homes and affectionate foster 
parents. 

Unfortunate children, whose parents, through overwhelm- 
ing adversity, or the infirmities of their nature, are unable 
to care and provide for them, are placed in cheerful homes, 
under the care and control of adoptive parents willing and 
able to provide for their protection and comfort 

Under the beneficent provisions of these statutes, such 
children are accorded advantages and opportunities for better 
moral, intellectual, and material advancement; a measure 
of happiness is secured to the adoptive parents and the 
child adopted, under the reciprocal influences of filial and 
parental affection, and inasmuch as the development of the 
child into a valuable member of society and an upright citizen 
depends upon healthy, moral home influences and parental 
solicitude, to that all-important extent, then, under these 
laws, are the best interests of society and the state conserved. 

Recognizing these good results, courts are more and more 
inclined to an abandonment of the old rule of strict construc- 
tion and to place a fair and reasonable construction upon 
proceedings under the statute, with a view of sustaining the 
assumed relationship, particularly against a collateral attack 
by strangers to the proceedings, whose only interest is to de- 
feat the relations which the adoptive parents always recog- 
nized and never questioned, so that they may succeed to an 
estate from which, by the very fact of adoption, the adoptive 
parents intended they should be excluded in favor of the 
adopted child. 

As to the second ];>oint urged by counsel for appellant, that 
neither the adoptive parents, nor the father of the minor, 
nor the minor, were examined at the hearing, we think it is 
without merit. 

The court, having obtained jurisdiction of the parties, the 
failure of the judge to examine these parties was an error 
of procedure which cannot affect the validity of the adoption. 
{In re Johnson, 98 Cal. 542.) While it was especially held 
that the examination of a child under twelve years of age 
was discretionary with the judge, the trend of the decision 
is to hold that the examination of the other persons appearing 
before the judge is not absolutely necessary to give effect to 



410 Bbtats of McKiiiAG. [lil CaL 

the order of adoption. The court there says: ''The essential 
foundation of the proceeding is the consent of the persona 
named in the statute, and when this has been give:^ in the 
presence of the proper judge, and manifested in writing and 
by the order of such judge, the contract cannot be declared 
invalid because of some merely technical objection to the 
manner in which the judge who signed the order of adoption 
may have discharged his duty in the premises." 

Without, however, discussing this point further, we are 
satisfied that appellant claiming under Cora Y. McKeag, the 
adoptive mother, is estopped as effectually as she would be 
in her lifetime from questioning the validity of the adoption 
proceedings — certainly, at least, to the extent that any ir- 
regularities in the method of procedure are invoked to disturb 
them. The deceased in her lifetime could not have questioned 
them, and appellant stands in no better right to attack them 
than the deceased would have had. 

In In re WiUiams, 102 Cal. 8V this court says: "Un- 
doubtedly, the judge ought, in the orderly and proper dis- 
charge of his duty, to conform to this direction of the law 
(examination of idl parties), but his omission to do so would 
not render the contract absolutely void. The deceased volun- 
tarily entered into the contract of adoption under considera- 
tion here, and received in his lifetime the benefits resulting 
from the relation thus created — ^the society, affection, and 
devotion of an adopted daughter — and no principle of law 
or equity will permit the appellants claiming under him to 
avail themselves of this technical departure from the direc^ 
tion of the statute, to defeat the rights of respondent growing 
out of the contract, the validity of which was never disputed 
by the deceased, and which has been fully performed by all 
the parties to it" 

In In re Evans, 106 CaL 565, the court expresses the 
same view in the following language: "Various irregularities 
in the proceedings are urged, but, after these papers were 
executed before the judge, and this man and this child lived 
together as father and daughter for ten years and down to 
the day of his death, it requires more than mere irregulari- 
ties to brush aside and annul a relationship entered into with 



141 Am. St Bep. 161. 



Dec. 1903.] EsTATB of MgKeag. 411 

all honesty of purpose, lived up to for many years, and only 
severed by the hand of death." To the same effect are In re 
Johnson, 98 Cal. 545; Estate of Camp, 131 Cal. 471;^ Van 
Fleet on Collateral Attack, sec. 408; SeweU v. Robert, 115 
Mass. 276; Parsons v. Parsons, 101 Wis. 83,-* Van Matre v. 
Sankey, 148 Mass. 536 ;» Nugent v. Powell, 4 Wyo. 201 ;< 
and Appeal of Wolf, 13 Atl. Rep. 764. 

In Nugent v. Powell, 4 Wyo. 20V it is said: "Notwith- 
standing these proceedings in adoption, the father might at 
any time since they took place have brought an action for the 
possession or custody of the childy and no one will contend, 
or perhaps can successfully contend, that in such case these 
adoption proceedings would constitute a bar to the father's 
action, or that they were conclusive upon him. But it does 
not follow that because the adoption proceedings were not 
conclusive upon the father, they were not conclusive upon 
the parties to the proceedings and their privies; on the con- 
trary, we think they are, and so hold." 

In the last case above cited — Appeal of Wolf — ^the doc- 
trine is dearly stated as follows, and we set it forth 
Bcmewhat at length as directly applicable to the case at 
bar: ''Nearly nine years after the decree was entered, 
and more than one year after the death of her adopted 
father, his administrator and collateral heirs come into 
court and ask that this decree of adoption be vacated. They 
are not here in the interest or on behalf of the inno- 
cent subject of adoption, but decidedly against the same. 
They are either strangers to the adoption, and, therefore, have 
no standing in court, or they are privies in blood, or in law, 
and stand in the shoes of Samuel Sankey, through and under 
whom they claim. Surely, Samuel Sankey, if living, could 
not be heard in this court questioning its decree made at his 
solicitation. He invoked the jurisdiction of the court; he 
asked that the decree of adoption should be made; he got 
what he desired; and he should not now be allowed to ques- 
tion the means he set in motion. If any wrong was done, 
Samuel Sankey did it, and neither he nor those who claim 
under him can be permitted to take advantage of his wrong 
to the prejudice of an innocent party. On the argument 



182 Am. St. Bep. 871. S39 Am. St. Bep. 196. 

870 Am. SL Bep. 894. 4 62 Am. St. Bep. 17. 



412 Maddux v. WalthaUj. [141 CaL 

many cases are cited where decrees of distribution have been 
set aside at the instance or in the interest of the adopted child. 
But none were cited, nor will any likely ever be found, where 
such decrees were revoked at the instance of the party who in- 
voked the power of the court and sought and obtained the 
decree, when such revocation would be to the prejudice of 
the innocent child." 

For the reasons that we have given, and in harmony with 
the authorities cited, we are satisfied that the finding of the 
lower court that the adoption proceedings were valid is 
correct, and that the respondent, as nominee of his wife, the 
adopted daughter of deceased, was entitled to administer 
upon the estate, and that the order denying the application 
of appellant for a revocation of his letters should be, and is, 
afSrmed« 

McFarland, J., and Henshaw, J., concurred. 

Hearing in Bank denied. 



[Sae. No. 1141. In Bank.— Deeember 83, 1903.] 

li. J. MADDUX, Respondent, v. J. M. WALTHALL, Ap- 
pellant 

ELaOnON— CONTBST TOB PUBUO OlTIOB— POWKB OT LBGISLATUBS.— Al- 

thongh the pnbHe Is interested in the legality of eleetione, and in 
seeing that offices be filled by eligible citizens properly chosen, yet 
it is competent for the legislature to authorize any elector to take 
the proper steps to determine these questions, and the fact that the 
contesting elector has a personal interest in the result, as claiming 
the right to the office for himself, cannot affect the validity o/ 
the law. 

iDw— Trial by Juet— WiJviaL^Without deciding whether trial by jury 
is proper in an election contest, any right to such trial is waived 
where no demand therefor was made until after the trial was com- 
menced. 

In. — Maak£d Ballots — Stamp after Words "No Nomination." — ^Bal- 
lots stamped after the words <'No nomination" are iUegal and Toid, 



Dec. 1903.] Maddux v. Walthall. 413 



as bftying a distiiiguiBhiiig mark. The number of ballots so marked 
eannot affect their invaliditj; and eridenee is not admissible to 
show that by reason of the number of ballots so marked it ceased to 
be a distinguishing mark. 

Id. — ^Violation or Puwty of Elbction Law by Contestant — Isavr- 
nciENT DEiTfiNSE.— -The court did not err in refusing to allow the 
contestee to urge in defense that the contestant had violated the 
Purity of Election Law. That question is to be determined in a 
separate proceeding for the infliction of the penalties provided 
therefor. 

APPEAL from a judgment of the Superior Court of 
>5tanislaus County. William 0. Minor, Judge. 

The facts are stated in the opinion of the court. 

Dennett & Walthall, E. A. Belcher, and J. C. Needham, 
Tor Appellant 

L. J. Maddux, for Bespondent 

HENSHAW, J. — ^This was an election contest instituted 
under sections 1111 et seq. of the Code of Civil Procedure. 
The court rejected the ballots in the senatorial and assembly 
squares of the Republican ticket containing a cross after the 
words ^^No nomination.'' The result of the recount was, 
that the contestant received the greater number of legal 
ballots, and was declared elected. The contestee appeals. 

Upon his appeal he urges that the proceeding provided 
for by the sections of the code above cited is unconstitutional. 
In substance his argument is, that, as a public office is a 
public trust, and as the public is interested in the legality 
of elections, and in determining who shall occupy an office, 
and as an mdividual is but a member of the public, 
he can have no resort to a private action such as this to re- 
dress his real or fancied wrongs. Hence it is contended that 
such an action must be prosecuted by, and on behalf of, and 
in the name of, the people of the state of California. We 
are not referred to any authority in support of this conten- 
tion which seeks to overthrow a procedure which has been 
upon our books since 1853, and which has been recognized 
by this court upon numberless occasions. It is undoubtedly 
true that the public is interested in the legality of elections. 



414 Maddux v. Walthall. [141 CaL 

and in seeing that offices are filled by eligible citizens properly 
chosen. At the same time, however, it is perfectly competent 
for the legislature to do as it has done in this instance, and 
authorize any elector to take the proper steps for the de- 
termination of these questions. The fact that the contesting 
elector may have, and frequently has, some especial x>er8onaI 
interest by reason of the fact that he claims the right of 
office for himself does not and cannot militate against the 
validity of the law. 

To the further objection that these sections are unconsti- 
tutional because they do not provide for the right of trial by 
jury, and that the court erred in refusing the contestee a 
trial by jury in violation of the constitution, it is sufficient 
to say, that if it be conceded — though it is not hereby de- 
cided (see Kennard v. Louisiana, 92 U. S. 480) — ^that a 
trial by jury in such a proceeding may be had in a 
proper case, in this particular instance the refusal of the 
court to grant such a trial was perfectly proper. In the 
first place, the demand was not made until after the trial had 
commenced, and, in the second place, as appears by the stipu- 
lation of the parties and by the record in the cause, no ques- 
tion of fact was involved which could have been submitted 
to a jury. This appears from the stipulation of the parties 
to the effect that, **H the ruling of the court in not counting 
the ballots with such cross after *No nomination' was error, 
then the judgment should be reversed, but that, if the eourt 
was correct in excluding such ballots, then the contestant 
received the majority of the remaining ballots." 

There was thus presented, the marking of the ballots being 
admitted, the legal question as to whether or not the ballots 
so stamped carried upon their face a distinguishing mark. 
That such a mark is prohibited and renders the ballot illegal 
and void, has been repeatedly decided. {Farnham v. Boland, 
134 Cal. 151; Salcido v. RobeHs, 136 Cal. 670; Patterson v. 
Hartley , 136 Cal. 265; People v. Campbell, 138 CaL 11; Tay- 
lor V. Bleakely, 55 Kan. 1.^) The manner of stamping the 
ballot is provided by the statute, and is mandatory. {Tehbs 
V. Smith, 108 Cal. 101.*) "No voter shall place any mark 
upon his ballot by which it may be afterwards identified as 



1 49 Am. St. Bep. 233, and note. B 49 Am. St. Bep. 68. 



Dec.l903.J Maddux v. Walthai-l. 415 

the one voted by him.'* (Pol. Code, sec. 1215.) The rule is, 
and has often been declared, that an illegal mark upon the 
ballot, or a legal mark illegally placed, which may serve as 
a distinguishing mark, will invalidate the ballot, and that 
the intent of the voter cannot be shown other than by what 
appears upon the face of the ballot. (Butledge v. Crawford, 
91 CaL 632 ,-1 Lauer v. Estes, 120 Gal. 652.) 

In this case, however, the eontestee asked the trial court 
to admit evidence, and to say that, because of the number of 
ballots so marked, this admittedly illegal mark did not and 
could not identify the ballots, and so ceajsed to be a distin- 
guishing mark. But to do this would result in the absolute 
destruction of the rule, and leave each case involving this 
question to be decided, not as a matter of law, but as a dis- 
cretionary matter resting with the trial judge. Either the 
rule must be adhered to, that a legal mark illegally placed 
upon the ballot by a voter, or an illegal mark made by the 
voter which may serve as a distinguishig mark, invalidates 
the ballot, as the code declares, or there is no rule whatever 
touching the matter, and the mandatory provisions of the 
ballot law are at once annulled. 

It is finally urged by the eontestee that the court erred in 
refusing to allow him to allege as part of his defense a viola- 
aon of the Purity of Election Law upon the part of the con- 
testant.. In this the court did not err. An election contest 
3uch ajs this is a special statutory proceeding designed to con- 
test the right of a person ** declared elected" to enter into 
and hold office. (Austin v. Dick, 100 Cal. 199.) It was never 
designed that the eontestee might prevent a determination as 
to his right of office by showing that the contestant himself 
had violated certain laws and was himself therefore not en- 
titled to the office. The proceeding may be instituted by any 
elector. The only matters of inquiry for the court are those 
prescribed in subdivisions 1, 2, 3 and 4 of section 1111 of the 
Code of Civil Procedure, unless the person ^'declared elecied^^ 
by the canvassing board is charged with a violation of pro- 
visions of the Purity of Election Law, in which event it may 
be that the court may hear and determine such charge. That 
question is not, however, here involved, and we do not de- 



125 Am. St. Bep. 212. 



416 Maddux v, WalthaUj. [141 CaL 

cide it (See Purity of Election Law, sec. 12; Stats. 1893, 
p. 19.) By section 1123 it is the duty of the court to declare 
any other person elected (and this person may be neither the 
contestant nor the contestee) if the result of the recount 
should so disclose. If the person so declared elected by the 
court shall in truth have violated any of the penal provisions 
of the Purity of Election Law, that is properly a matter for 
determination in a separate proceeding. These provisions of 
the Purity of Election Law are highly penal. They are de- 
signed, as the name of the law implies, to protect and pre- 
serve the purity of the ballot. The punishments meted out 
for violations of the provisions of these laws are for the most 
part punishments for felonies. The deprivation of oflSce of a 
successful candidate who has been guilty of election abuses 
is but an incident to the punishment which the law imposes. 
For the foregoing reasons the judgment appealed from is 
affirmed. 

Van Dyke, J., Angellotti, J., and McParland, J., concurred. 

SHAW, J., concurring. — ^I concur in the judgment. With 
respect to the ballots upon which crosses appear in the square 
or space after the words "No nomination," I concur, because 
I regard the proposition that such crosses constitute a dis- 
tinguishing mark as the settled law of this state, under the 
decisions cited in the main opinion. As the legislature of 
1903 changed the form of the ballot so that those words will 
not appear on the ballots in future elections, the matter ceases 
to be of sufficient prospective importance to justify further 
consideration, even if the principle of the cases were con- 
sidered as unsound. 

This proposition being established, there can be no modi- 
fication of it on the ground that there happens to be so many 
similarly marked ballots in a single precinct that it is not 
possible to identify any one of them as the ballot of a particu- 
lar voter. The principle underlying the decisions referred 
to must be that the statute is to be considered as declaring 
each of such marked ballots void, because, as the mark is 
purposely made, there is an intent presumed by law on the 
part of each voter, at the time he casts it, to mark it for 
identifieationu This presumed intent is not affected^ nor ean 



Dee. 1903.] Obuwbll t;. Bocoa. 417 

it be disproved, by showing other facts, neeessarily nnknown 
to the voter at the time, which tend to, or actually do, for 
that purpose make futile the act from which the intent is 
presumed. Hence, it is not material to show by a display of 
the ballots after the polls are closed, tha