Volume 169 — California Reports

<p>Corporation—Foreign Corporation Doing Interstate and Intrastate Business—License-Tax—Validity op.—The case of Mulford Co. v. Curry, 163 Cal. 276, in which this court held the act of 1905 (Stats. 1905, p. 493), providing for a lieense-tax upon corporations, and requiring every corporation, incorporated under the laws of this state, and every foreign corporation then doing, -or which should thereafter engage in business in this state, to procure annually from the secretary of state a license authorizing it to transact business in the state and to pay therefore a lieense-tax gradated upon the amount of its authorized capital stock, and section 416 of the Political Code, requiring corporations to pay the secretary of state, for his services in filing their articles of incorporation, certain fees gradated upon the amount of their capital stock, to be unconstitutional and void, as to foreign corporations engaged in carrying on an interstate as well as an intrastate business, for the reason that such exactions are the imposition of a direct burden upon their interstate commerce in violation of the commerce clause of the constitution of the United States, and also an illegal tax on their property situated outside of the state, cannot further be regarded as an authority, since the decision of the supreme court of the United States in the cases of Baltic Mining Go. and White Dental Manufacturing Co. v. Massachusetts, 231 U. S. 68, in which that court held such exaction to bS valid.</p> <p>Id.—License-Tax—-Nature op—Effect of Case of Baltic Mining Co. v. Massachusetts—Tax Held Valid.—In conformity with the decision of the United .States supreme court in the cases of Baltic Mining Co. and 8. 8. White Dental Co. v. Commonwealth of Massachusetts, 231 U. S. 68, it is held, in this proceeding in mandamus to compel the secretary of state to file a certified copy of articles of incorporation of a foreign corporation engaged in carying on both an interstate and an intrastate mercantile business in this state, without prepayment of the fee fixed by section 416 of the Political Code, and the fee prescribed by section 2 of the act relating to revenue and taxation, providing for a license-tax on corporations (Stats. 1905, p. 493), that as to both of the license fees in question their payment is exacted as a privilege or occupation tax exclusively upon the right to do a domestic business within the state of California; that these taxes are excise -taxes and not property taxes, and that the tax is not on, nor based on, the capital stock of the corporation, but ■is merely admeasured by that capital stock; that in every case it is practicable to segregate strictly domestic business of a corporation from its interstate business, and for these reasons such corporations should be required to pay the fees prescribed by the law.</p>

<p>APPEAL from an order of the Superior Court of Alameda County appointing a guardian of a minor. Stanley A Smith, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title—Opening Statement of Counsel—Directing Verdict upon.—The practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party, is a dangerous one, and. an order granting such motion can be upheld only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the ease may be. Where, however, these conditions are complied with, the court is authorized to accept the statements and admissions of counsel and to direct a verdict required by such statements or admissions.</p> <p>Id.—Bules on Review of Nonsuit Applicable to Order Directing Verdict—Statement of Counsel and Inferences to be Taken as True.—In reviewing an order directing a verdict on an opening statement, the appellate court must apply rules analogous to those which govern it in reviewing an order granting a nonsuit after the introduction of evidence.' Every fact which counsel has stated as among the matters to be proved, together with all favorable inferences reasonably to. be drawn therefrom, must be accepted by the court as facts which would have been proved if the case had been allowed to be tried.</p> <p>Id.-—When Opening Statement Full and Complete.—Where, after ■counsel had first outlined the facts to be proved by defendants, plaintiff moved the court for a direct verdict, and counsel for defendants declared his readiness “to argue that proposition right now,” whereupon the court directed that the reporter read over the opening statement, suggesting that counsel for defendants might have omitted something, and in response to this suggestion defendants’ counsel amplified his statement, and argument on the motion proceeded, on the completion of which the court directed a verdict in favor of plaintiff, under the circumstances, there is no ground for the claim that the statement was made without an understanding of the necessity for making it exhaustive or that any substantial fact intended to be proved was omitted therefrom by inadvertence.</p> <p>Id.—Community Property—Conveyance to Wife by Husband— Directed Verdict Held Properly on Plaintiff’s Prima Facie Case and Opening Statement of Defendants.—In this action between the respective administrators of the estates of a deceased wife and husband to quiet title to community property conveyed by the husband to the wife by a deed of gift executed and delivered many years prior to their death, which deed, after search, could not be found at the time of the death of the wife, but after the husband’s death was found under the linoleum on the floor of the room which had been occupied by the decedents, it is held that plaintiff made out a clear prima facie case, and that it was not error for the court to direct a verdict in favor of the plaintiff after the opening statement of the defendants’ counsel;</p> <p>Id.—Estoppel in Pais—Insufficiency of Facts to Constitute.—In such a case, where the facts respecting the ownership of the property were as completely known to the husband as to the wife, and it is not claimed that the latter induced a mistaken belief regarding any such facts or that, if he was induced by her to believe that she “considered” the property to be community, was led by this belief to take or omit any action material to the protection of his interest, it being merely asserted that the wife “considered” the land to be community property, these facts fall far short of meeting the requirements of estoppel in pais. ■></p> <p>Id.—Grantor Remaining in Possession of Land—Grantee’s Title not Affected by Unless Adverse Possession Maintained.— Where a husband deeds community property to his wife, if the title passes, the fact that the grantor remains in possession of the land, farming it and paying taxes upon it, is not effective to weaken or impair the title of the grantee, unless he maintains an adverse possession in the manner and for the time required by the code.</p> <p>Id.—Joint Occupancy—Basis for Prescriptive Title Lacking.-—In such a case, where the land conveyed was occupied by both parties as their home, before and after the conveyance to the wife, -the occupancy was a joint one, eonsistent with ownership by either husband or wife, and furnishes no basis for a claim of prescriptive title by one against the other.</p> <p>[d—Subsequent Deeds by Grantor to Third Persons—Adverse Claim not Shown by.—In such a case, the fact that the husband, after deeding the property to his wife, made deeds at various times to portions of the land to others without his wife joining in the conveyances, does not evidence a claim adverse to that of the wife, in the absence, at least, of proof that the husband’s actions were known to the wife and that she did not assent to it.</p> <p>Id.—Conveyance not Impaired by Subsequent Acts or Declarations of Grantor.—The force of an executed conveyance is not to be impaired by subsequent acts or declarations of the granto-r.</p> <p>Id.—Mutual Deeds by Husband and Wife—Ineffectual Delivery in Escrow—Wife’s Title not Impaired by.—The fact that both the husband and wife, in such a ease, after the conveyance by the husband to the wife, made deeds to each other of the property and deposited them with a third person to hold and upon the death of either to deliver to the survivor the deed of the one so dying, which deed it is not claimed passed any title, cannot impair the wife’s title to the property.</p> <p>Id.—Community and Separate Property—Character Determined by Mode of Acquisition—Subsequent Declarations Ineffective to Change.—The character of the ownership of property, whether separate or community, is to be determined by the proof showing the mode of acquisition, rather than by any declaration of one of the parties that the property is or is not community property.</p> <p>Id.—Evidence—Declarations of Wife as to Community Property-Admissibility of—Insufficient to Overcome Deed.—While the declaration of the wife, in such a case, made in her will which was executed shortly before her death that the property was community property, and oral statements to the same effect made by her to different persons at various times, are admissible evidence against her or her successor in interest, such evidence standing alone cannot be deemed sufficient to overcome uncontradicted proof that the land was conveyed to her by her husband by means of a deed which, in express and elaborate terms, stated that she was to hold the land as her separate estate, the grantor relinquishing “all right or claim to the same or any part thereof as community property.”</p> <p>Id.—Separate Property can be Changed to Community Only by Agreement.—A declaration by the wife that the property was community estate might properly be regarded as having some weight, if supported by proof of other facts pointing in the same direction, or if the evidence regarding the acquisition of title was consistent with either the separate or community character of the ownership. But where the husband has conveyed the property to the wife by a deed which, by its express declarations, as well as by the presumptions of law, made the property her separate property, it could become community property thereafter only by an agreement between herself and her husband.</p> <p>Id.—Declaration Against Interest—Admissibility of Declaration by Grantee That Deed Effective Only on Grantor’s Death.— Evidence of the declaration of a grantee made to a third person that the deed had been made and given by her husband with the understanding that it should not become effective unless the grantee should outlive her husband, is admissible as a declaration against interest if it militates in any way against the validity of the title of the grantee.</p> <p>Id.—Delivery of Deed—Question of Pact.—Whether or not a deed has been delivered, either to the grantee or to a depositary, is a question of fact.</p> <p>Id.—Manual Tradition Alone Insufficient—Intent to Pass Title ' must Exist.—A manual tradition of a deed is not sufficient, unless the passing of the paper is accompanied by the intent of presently transferring title to the property, and he unhampered by the reservation of a right of revocation or recall.</p> <p>Id.—When Delivery of Deed Complete.—Any words or acts showing an intention on the part of the grantor that a deed shall be considered as completely executed and the title conveyed are sufficient. When a deed is executed and the minds of the parties to it meet expressly or tacitly, in the purpose to give it present effect, the deed is validly delivered.</p> <p>Id.—Conditional Delivery of Deed—Condition Discharged by Delivery to Grantee—If a deed is delivered to a third party, upon a condition which may, according to the outcome, make the transfer effective or nugatory, the delivery may be ineffectual; but where, as in this case, the delivery is made to the grantee, the condition is discharged, and the delivery is absolute, under section 1056 of the Civil Code.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Chickering & Gregory, and Donald Y. Lamont, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Delay op Trial Beyond Sixty Days— Motion to Dismiss—Presumption op Dependant’s Consent to Delay.—In a prosecution for murder, where the information was filed on October 12, 1912, defendant was arraigned October -14th, and the time to plead was continued to October 16, 1912, on which date defendant pleaded not guilty, and the ease was set for trial December 17, 1912, but, as far as the record shows,-there was no objection made by the defendant on October 16th to setting the case for trial on December 17th, although that date was beyond the sixty-day limit within which the law provides the defendant shall be brought to trial after the filing of the information, defendant’s consent to the postponement will be presumed; and where defendant moved for a dismissal on the above grounds on December 16th, and it appeared, at the hearing of the motion, that the district attorney was sick and unable to appear in court, evidence being taken as to his physical condition, which showed this to be the fact, and that some days would elapse before he could undertake the trial of the ease; a further continuance becoming necessary because the district attorney had no deputy and no attorney was available who had any knowledge of the facts, and the court called attention to the fact that other cases were set for trial that would occupy all of December, and would run into January, the judge stating that, from the condition of the calendar, January 20, 1913, was “the earliest date this case can be continued to,” the case then being finally set for January 21st, but no motion to dismiss after December 16th being made and defendant going to trial on January 21st without further objection, the motion to dismiss the case, because the defendant was not brought to trial within sixty days from the filing of the information, was properly denied.</p> <p>Id.—Sufficiency of Evidence.—In this prosecution for murder, it is held that the evidence was sufficient to justify the verdict.</p> <p>Id.—Motive—Evidence of Always Admissible.—In a prosecution for murder, proof of motive, while never indispensable, is always permissible and often valuable.</p> <p>Id.—Bobbery as Motive—Possession of Money by Deceased— Knowledge of by Defendant Unnecessary—Admissibility of Evidence.—In a prosecution for murder, where the motive was asserted to be robbery, and a witness testified that he saw deceased about one and a half or two weeks before the homicide, at which time he had about one hundred and eighty dollars with him, and another witness testified that he cashed a check for the deceased a few days previous to the homicide when the deceased had a purse under his vest, which contained probably two hundred dollars, an objection to the evidence on the ground that the time when it was shown the deceased had money upon his person was too remote to give it any probative value, and that it was not shown that the defendant knew the deceased had this money, was properly overruled. The jury was not bound by the declaration of the defendant that he saw in the possession of the deceased only a silver dollar, and it would be a perfectly legitimate inference for the jury to draw that, if the deceased had any considerable sum of money upon the day of the homicide, he may have exhibited it in one or another of the saloons, or the railway ticket office, which defendant testified he and the deceased and others visited. To establish robbery as a motive, it is not at all necessary that knowledge that the deceased had money should be brought home to the assailant. The objection that the date, on which the deceased was shown to have money, was too remote, goes to the probative weight of the evidence and not to its admissibility.</p> <p>Id.—Motive—Habit of Deceased to Carry Money—Probative Force of Facts—Admissibility of Evidence.—The proof of the fact that the deceased was in the habit of carrying money on his person, and that he had about two hundred dollars on his person a few days before the homicide, and that he had none when the body of the deceased was discovered, affords strong evidence of motive, and there is no error in admitting such evidence.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Receiver—Action to Cancel Deed—Transcript on Appeal—Insufficient Record.—Where the transcript on appeal from an order appointing a receiver, in an action to cancel a deed and for an accounting of the rents and profits from the land, contains no bill of exceptions, but merely contains a copy of the pleadings; notice of motion for appointment of the receiver; minutes reciting that the trial of the action was commenced; that a witness was sworn and testified; that plaintiff’s motion for the appointment of the receiver was granted; the order appointing the receiver, his bond and oath; notice of appeal and undertaking thereon, and a stipulation of counsel (reserving all objections to the record), and certificate of the clerk as to the correctness of the copies of the records, but there is nothing in the transcript indicating that any of the papers were used on the hearing of the motion, nor any statement of any testimony given in support of the motion or at the trial of the case, the appeal, if considered as taken under the old method, is ineffectual for lack of a showing as to what papers or evidence were used or introduced on the motion; and if the appeal be considered as taken under sections 953a, 953b, and 953e of the Code of Civil Procedure, it is abortive, because appellant, after filing notice of appeal, took no further steps thereunder to procure a record to be used on appeal.</p> <p>Id.—Motion to Dismiss—Affirmance of Order Appointing Receiver Proper Procedure.—As the filing of the notice of appeal in the lower court in such a case, treating the appeal as taken under the new method, conferred jurisdiction upon the supreme court, and as a mere inspection of the record shows that appellant is entitled to no relief, the proper order, in response to a motion to dismiss the appeal, is to affirm the order appointing the receiver.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Marshall of the City of South Pasadena.</p> <p>The facts are stated in the opinion of the court.</p>

The petitioner, on August 19, 1914, was held to answer in the Police Court of the City and County of San Francisco for a violation of section 270 of the Penal Code, in omitting to provide for his minor child, and an information charging him with such felony had been filed against him in the Superior Court.

<p>The facts are stated in the opinion of the court.</p>

<p>Industrial Accident Commission—Review or Proceedings by Supreme Court—Grounds op Review.—The supreme court is not authorized to review the proceedings of the Industrial Accident Commission of the state of California on the grounds either that the findings of the commission are not sustained by the evidence, or that the applicant for the writ of review has discovered new evidence material to him. The commission itself may grant a rehearing on these grounds, (Workmen’s Compensation Act, sec. 82), but the courts are restricted to the grounds stated in section 84 of said act.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Leonard & Surr, R. C. Gortner, Frank Karr, A. W. Ashburn, Jr., and W. R. Millar, for Appellant.</p> <p>Willis & Guthrie, John Brown, Jr., and Daley & Byrne, for Respondents.</p>

<p>Negligence-—Damages fob Personal Injuries—Failure of Plaintiff to Call Attending Physicians—Presumption of Adverse Testimony—Instructions.—In an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, an instruction given at the request of the defendant, in which, after stating that, by reason of the privilege defined in section 1881 of the Code of Civil Procedure, the physicians who had attended the plaintiff could not testify without his consent, it charged that if the plaintiff had failed -to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him, is erroneous.</p> <p>Id.—Erroneous Instruction Without Prejudice—Verdict and Judgment for Defendant—Instructions Bearing Solely on Amount of Damages.—Where on the trial it was shown without contradiction -that the plaintiff had suffered some injuries, but there was nevertheless a verdict and judgment for the defendant, the giving of such instruction, and also one declaring a like presumption to arise from the unexplained failure to call the plaintiff’s nurse, is without prejudice, as the persons referred to could have testified on no subject other than that of the extent of the plaintiff’s injuries, and the verdict could have been reached only upon a finding that, by reason of the plaintiff’s own negligence, or the defendant’s want of negligence, there was no liability for the injuries, whatever their extent. Under such state of the record, error in instructions bearing solely on the amount of damages could not have influenced the verdict and present no ground for reversal.</p> <p>Id.—Collision Between Automobile and Electric Street-cab—Instruction as to Bate of Speed Compatible With Ordinary Care —Absence of Ordinance Limiting Bate of Speed.—Where the accident was the result of a collision between an automobile driven by the plaintiff and an electric street-car of the defendant, which the complaint charged was being negligently run at a speed of about thirty miles an hour, and it was not pretended that there was any ordinance limiting the rate of speed of the defendant’s ears, it was not erroneous to instruct the jury that there was no allegation or evidence of any ordinance limiting the rate of speed at which defendant might propel its cars at the place where the collision occurred, “and defendant had a right to drive or propel its said car as any rate which it saw fit which was not inconsistent with the exercise of ordinary care.” If the part of the instruction referring to the absence of such an ordinance was outside of the issues, it could not have misled the jury.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Lease—Construction—Provisions for Termination in Event of Damage by Eire—Premises Rendered “Wholly Unfit for Occupancy.”—A lease of a part of a building for a retail shoe store expressly provided that the lease should terminate upon the occurrence of any one of three contingencies: (1) if “the building or premises are destroyed by fire or other action of the elements”; (2) or “if the building or premises are partially -destroyed so as to render the premises demised wholly unfit for occupancy”} (3) or “if they shall be so badly injured, that they cannot be repaired within sixty days after the happening of the injury.” The next clause provided “that if said premises shall be repairable within sixty days from the happening of said injury, then said rent shall not run or accrue after such injury and while the process of repairs is going on, and the lessor shall repair the same with all reasonable speed, and the rent shall recommence immediately after said repairs shall be completed; but if said premises shall be so slightly injured by fire or the elements as not to be rendered unfit for occupancy, then the said lessor agrees that the same shall be repaired with reasonable promptitude, and in that case the rent accrued or accruing shall not cease or terminate.” Held, that it was reasonably practicable to construe the lease so that effect could be given to every part of it; that, properly construed, the lease terminated upon the happening of either of the three contingencies specifically mentioned, including the contingency of a partial destruction of the demised property which rendered it wholly unfit for occupancy, irrespective of whether it could or could not be repaired within sixty days; and that the last clause was intended to apply to the ease where the premises might be damaged to such limited extent as to prevent or greatly hamper the conduct of business, while not requiring the tenant to vacate while repairs were being made, thus rendering the premises “unfit for occupancy” within the meaning of the clause relieving the tenant from the payment of rent during the period devoted to repairs, but not damaged to an extent which would terminate the lease by rendering the premises “wholly unfit for occupancy.”</p> <p>Id.—-Provisions Terminating Lease not Declaring Forfeiture—Construction Against Lessor.—In construing such lease there is no basis for applying the rule of strict interpretation against conditions involving forfeiture. The clause terminating the lease in certain contingencies does not declare a forfeiture. It fixes events, having no relation to any act or default of the parties, upon which it is agreed that the lease shall end. Such clause should not be interpreted against the lessor.</p> <p>Id.—Rent Payable in Advance—Cannot be Recovered upon Destruction of Premises.—A tenant who has taken possession of the leased premises and paid his rent, or a part of it, in advance, as required by the terms of the lease, cannot, in the absence of any covenant in the lease, recover the rent so paid in case of the destruction of the premises by fire without any fault of either party to the lease. This is true even though, by the terms of the lease, or under a statute, the destruction of the premises terminates the lease.</p> <p>Id.—Provision for Payment op Rent Only to Time of Surrender— Not Covenant to Repay Rent Paid in Advance.—A provision of the lease, that the lessee shall, upon the happening of certain specified damages by fire terminating the lease, “surrender said premises . . . and shall pay rent within this term only to the time of such surrender,” is not a covenant to repay, in whole or in part, any installment of rent which had become due and been paid prior to the fire. It merely declares that the tenant shall not be called upon to pay any further rent after surrendering the premises.</p> <p>Id.—Surrender Necessary to Create Right to Repayment.—If such provision gave the tenant any right to the repayment of rent which had been paid in advance, the right of repayment would arise only upon the tenant’s surrender of the premises.</p>

<p>APPLICATION for a Writ of Mandate directed to the State Controller of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hartley F. Peart, U. S. Webb, Attorney-General, Albert H. Elliott, Assistant Inheritance Tax Attorney, and Gus L. Baraty, for Appellant.</p>

<p>Parent and Child—Abandonment of Child—Elements Necessary to Establish Abandonment—Cases Cognizable in Juvenile Court.— The provision of section 224 of the Civil Code that “any child left in the care and custody of another by its parent or parents, without any provision for its support, for the period of one year, may after such notice to the parent or parents residing within the state, and to such other relatives of said child residing within the county, as the court shall require, be determined by order of the juvenile court of the county in which said child was so left to be an abandoned child within the terms of this section,” does not state all of the elements necessary to constitute abandonment, but only defines the circumstances under which the juvenile court can take charge of eases of that kind, and determine whether or not there has been an abandonment.</p> <p>Id.—Intent of Parent to Abandon Essential to Establish Abandonment.—One of the things necessary to be shown to constitute abandonment is intent on the part of the parent to abandon the child. The evidence in this case does not show such intent.</p> <p>Id.—Evidence of Intent—Declaration of Parent.—If the circumstances and facts show that the parent—the mother—did have such intent, her declaration to the contrary would not be eonslusive in showing lack of intent.</p>

<p>APPEAL from a decree of the Superior Court of the city and county of San Francisco making partial distribution of the estate of a deceased person. Thos. F. Graham, Judge.</p> <p>The facts involved in this appeal are similar to those stated in the opinions in Estate of Cowell, 167 Cal. 222, 228.</p>

<p>The facts are stated in the' opinion of the court.</p>

Thomas F. Graham, Judge. The property of the estate of the deceased that was set aside to his widow absolutely as a homestead ivas situated in the city and county of San Francisco, and consisted of a lot of land having a frontage of twenty-seven and one-half feet, on which there was erected a single three-story frame building containing twelve residence apartments of two or more rooms each.

<p>Probate Homestead—Apartment House Constituting Place op Residence mat be Set Aside.—Property belonging to the estate of a decedent, consisting of a lot with a single house thereon containing twelve residence apartments, one of which was occupied by him and his wife as their residence up to the time of his death, and in which she thereafter continued to reside, the other apartments, both prior to and after his death, being leased to various tenants, is of such character and suitability as to entitle it to be set apart as a probate homestead.</p> <p>Id.—Community Property—Presumption—Setting Aside to 'Widow in Fee.—If the property set apart is community property, and it is presumed to be if acquired after marriage, the court may set it apart to the widow as a homestead, there being no surviving children.</p>

J. V. Coffey, Judge. The appellant, as administrator of the estate of Walter Magorty, deceased, came into possession of, and in his final account accounted for, real property of the value of three thousand five hundred dollars, and money to the amount of $206.25, and claimed commissions on such valuation in the sum of $178.25.

<p>The facts are stated in the opinion of the court.</p> <p>F. W. Sawyer, James A. Devoto, and Devoto, Richardson & Devoto, for Appellant.</p> <p>Grant H. Smith, Lindley & Eichhoff, S. Bloom, Cullinan & Hickey, A. G. Kazebeer, T. E. K. Cormac, and Corbet & Selby, for Respondents.</p>

<p>Practice—Dismissal for Want of Prosecution—Discretion—Appeal. The supreme court cannot say that the dismissal of the present ease for want of prosecution, based on the plaintiff’s failure to bring it to trial within two years after the filing of an amended answer, was an abuse of discretion, where the only showing made in excuse of the delay was that during a period of four months the illness of plaintiff’s counsel prevented his attending to business, and that for the rest of the two years he was engaged with other business affairs.</p> <p>Id.—Consideration of Proceedings had Before Filing of Amended Answer.—In determining the motion to dismiss the trial court had the right to consider the history of the case prior to the filing of the amended answer.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John E. Burnett, and Charles A. Shurtleff, for Appellant.</p>

<p>Water-bight — Prior Adjudication Determining Right to Flood Waters—Subsequent Diversion op Natural Flow op Stream.— In this action by the owner of the right to divert from the San Joaquin River, below the mouth of Stevinson Creek, a large quantity of the water naturally flowing in said river, to restrain the defendant from diverting from the natural flow of said creek, quantities of water which otherwise would have continued down the creek into said river and into plaintiff’s canal, it is held that the judgment in the prior case of San Joaquin eto. Co. v. Fresno Flume etc. Co., 158 Cal. 626, was not an adjudication of the right in the defendant, by means of the dam and reservoir previously constructed by it across Stevinson Creek, to take water from such reservoir, although such taking decreases the amount of water naturally flowing in the creek below the reservoir, and decreases the amount in the river so that the plaintiff cannot obtain therefrom the quantity to which it is entitled under that judgment. The right of the defendant, determined by such prior judgment, was limited to the flood waters of such creek, and such judgment was not a bar to a cause of action subsequently arising from another taking which diminished the natural flow of the waters of the creek.</p>

The facts are stated in the opinion of the court. Metson, Drew & Mackenzie, and Albert Fink, for Appellants. W. G. Deal, and W. E. F. Deal, for Respondent Ashby O. Stewart. Wright, Wright & Stetson, and J. F. Bowie, for other Respondents.

<p>Pleading—Identity of Corporate Plaintiff With Payee of Notes Sued on.—A complaint by a plaintiff entitled “Goldberg, Bowen & Co. (a corporation),” to recover on promissory notes made payable to “Goldberg, Bowen & Co., Ine.,” is not demurrable for want of facts, notwithstanding the absence of allegations showing the identity of the plaintiff and the payee of the notes, or of any assignment of the notes to the plaintiff. Such names are practically identical, and the identity is aided by an averment that the notes were “made and delivered to the plaintiff.”</p> <p>Id.—Immaterial Variance—Judgment Against Surety.—Such supposed variance between the name of the payee in the notes and that of the plaintiff is not sufficient to vitiate a judgment in favor of the plaintiff against a surety on the notes.</p> <p>Id.—Variance Between Name of Promisee and Plaintiff not a Defense.—Even if such difference in the names constituted a variation, the rule is that where the parties to a contract can be ascertained and an action is prosecuted in the name of the real party, an error in the name of the promisee as described in the promise is not a proper basis of defense.</p> <p>Id.—Offer of Notes in Evidence—Beading Notes Into Becord.—The judgment against the surety cannot be attacked on appeal on the ground that the notes were not offered in evidence, where the record shows that they were read in evidence, and the judgment recites that “oral and documentary evidence was introduced and received in behalf of the plaintiff.” A note read into the record is “offered in evidence” as effectually as if the paper upon which it is written were formally tendered and taken into the custody of the court.</p> <p>Id.—Sufficient Evidence of Plaintiff’s Corporate Existence.—In such action the corporate quality of the plaintiff is sufficiently established by the production of the notes sued on by the plaintiff’s cashier, and his testimony that Goldberg, Bowen & Co. was a corporation “existing under the laws of the state of California,” and the evidence of another witness that he saw the defendant sign the instruments in which “Goldberg, Bowen & Co.” is described as incorporated by the abbreviation “Inc.”</p>

<p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, J. F. English, Assistant City Attorney, and Geo. B. Benham, for Appellant.</p>

<p>Railroad Commission-—Public Utility Property—Power of Commission in Respect to Transfer is Merely Permissive.—The power which the railroad commission has, under section 51a of the Public Utilities Act, providing that “no railroad corporation ... or water corporation shall henceforth sell, lease, assign, mortgage, or otherwise dispose of or encumber the whole or any part of its railroad, street railroad, line, plant or system, necessary or useful in the performance of its duties to the public . . . without having first secured from the commission an order authorizing it so to do,” is merely perihissive, and the application for the authorization should be made by the owner of the public titility property, because the authority must run to such owner.</p> <p>Id.—Exercise of Power by Commission—Rights of Parties to Contract of Sale not Within Jurisdiction of Commission.—The commission’s power is to be exercised for the protection of the rights of the public interested in the service, and to that end alone. All that it is concerned with is whether a proposed transfer will be injurious to the rights of the public. If not, the owner may be authorized to make the transfer. With the rights of an intending purchaser the commission has" nothing to do, nor has it power to determine whether a valid contract of sale exists, or whether either party has a legal claim against the other under such contract. These are questions for the courts. If the owner does not desire to sell, or if, having contracted to sell, he refuses to comply with Ms contract, the commission cannot force Mm to sell, or to carry out Ms contract.</p> <p>Id.—Petition by Owner for Authority to Sell—Subsequent Inconsistent Petition for Sale to Different Purchaser.—Where the owner of public utility property, having made an executory contract for its sale to a private person, filed a petition before the railroad commission setting forth the contract, and praying for such order as the commission should deem for the best public interest, and thereafter, and while the matter was still before the commission, filed a second petition in which he asked authority to sell a portion of the property to a municipality, and took the position that the prior sale should not, in the public interest, be approved, the commission properly declined to pass upon the propriety of the prior sale, as the owner, being the only person having the right to invoke the action of the commission in that behalf, declined to invoke it.</p>

C. W. Norton, Judge presiding at trial. L. T. Price, Judge refusing a new trial. The facts are stated in the opinion of the court. Metson, Drew & Mackenzie, and R. G. Hudson, for Appellant.

<p>The facts are stated in the opinion of the court. •</p> <p>Henry U. Brandenstein, Charles W. Slack, and Grover O'Connor, for Appellant.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Alameda County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Fall of Elevator—Allegation of Improper and Negligent Construction—Prima Facie Case Must Conform to Averments—Nonsuit.—In an action to recover damages for personal injuries resulting from the fall of an elevator on which the plaintiff was being carried, an allegation of negligence, in the complaint, based solely on the “improper and negligent construction” of the elevator, must be construed as meaning an improper and negligent condition of the elevator as it was at the time of the accident,—its unfitness at that .time for the purpose for which it was intended and was being used. Under such a pleading, it was incumbent on the plaintiff to make a prima facie ease of negligence in the respect averred, and if he did not present evidence from which the jury could legitimately infer negligence on defendant’s part in this respect, a motion for nonsuit was properly granted.</p> <p>Id.—Construction of Evidence on Motion for Nonsuit.—A motion for nonsuit admits the truth of plaintiff’s evidence, and every inference of fact that can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against the defendant.</p> <p>Id.—Evidence Must Amount to More Than Conjecture or Surmise.— In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists, and when the evidence is not sufficient to justify such an inference, the court may properly refuse to submit the question to the jury.</p> <p>Id.—Bes Ipsa Loquitur—Meaning of Maxim—Application to Cases of Negligence.—The maxim res ipsa loquitur translated means simply, “the thing, or affair, speaks for itself,” and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary. As applied to eases of alleged negligence, the rule is, that when a thing which causes negligence is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.</p> <p>Id.—Actions fob Negligence in Which Doctrine is Applicable.— This doctrine is applicable in this state in actions for negligence whenever the circumstances shown justify its application, whether the action be one by a passenger against a common carrier, by a person bearing no relation to the one managing the thing causing the accident, or by an employee against an employer. Of course, to justify its application in any case, the circumstances of the accident must be such as, unexplained, afford reasonable evidence of want of care in a respect for which the defendant is liable in the particular action.</p> <p>Id.-—Application of Doctrine in Actions by Employee Against Employer—Insufficiency of Evidence as to Cause of Accident.—In actions by an employee against his employer to recover damages for injuries- sustained by the employee in the course of his employment, the doctrine is not applicable, where the evidence as to the accident is such as to leave it purely a matter of mere surmise or conjecture whether -the injury was due to a cause for which the employer was liable. The burden of proof is on the employee to show actionable negligence, and under such circumstances the mere happening of the accident is not prima facie evidence of such negligence.</p> <p>Id.—Unexplained Evidence Warranting Inference as to Cause of Accident.—Where, however, the evidence is of such a nature as to fairly warrant the inference as a faet, in the absence of explanation, that the accident was due to a cause for which the employer is liable to his employee, the doctrine is -applicable, and a sufficient ease is made to require submission of the question of the employer’s liability to the jury.</p> <p>Id.—Eall of Elevator Used in Construction of Building—Evidence Warranting Inference of Defective Construction—Improper Nonsuit.-—In this action by an employee against Ms employer to recover damages for personal injuries resulting from the fall of an elevator which had been temporarily placed in a building, and was being used and operated by the employer in order to facilitate his work on the building, it is held, that the plaintiff’s evidence as to the condition of things, at the top of the elevator shaft and of the head-piece immediately after the accident, in connection with the evidence as to the lowering of the head-piece only a day or so before, was of such a nature as, in the absence of explanation, to fairly warrant the inference that the accident to the elevator was due to its improper and defective construction, and was such an accident as in the ordinary course of things does not happen if those who have the management use proper care, and that the plaintiff made a sufficient case of negligence to preclude the granting of a nonsuit.</p> <p>Id.—Knowledge by Defendant of Defect—Want of Cake in Ascertaining Conditions.—In order to make a sufficient ease for the jury, it was not incumbent on the plaintiff, under the circumstances appearing, to do anything further in the way of showing that the defect in the appliance was actually known to the defendant, or would have been discovered upon the exercise of reasonable care to ascertain as to its condition.</p> <p>Id.—Sufficiency of Evidence to Establish Prima Eacie Case— Precise Nature of Defect Need not be Shown.—Under the circumstances appearing, it is reasonable to assume that the defendant could have ascertained and probably did .ascertain the cause of the accident, and certainly it was within his knowledge whether or not he had used due care for the observance of defects in the appliance furnished for the use of his employees. Under such circumstances it is enough for the employee to show that the accident was due to a defect in the appliance furnished the employee, without showing the precise nature of the defect in this respect, and such a showing warrants the inference that, if the defendant does not choose to give an explanation, the real cause was negligence on his part. This conclusion does not violate the rule that the party who alleged negligence must prove it, but simply means that such proof, under the circumstances, fairly warrants an inference of negligence, in the absence of explanation or evidence of reasonable care on the part of a defendant having superior knowledge as to the facts.</p> <p>Id.—Elevator Used but not Constructed by Employer.—It is immaterial to the defendant’s liability that he did not construct the elevator, or put the piece that gave way in the place where it was at the time of the accident, if he had procured from the owner the use of the elevator for the purposes of his own work, and furnished it to his employees for their use in such work, and was in the management and control of it while it was being so used.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Disqualification of Judge—Action Involving Issue as to Quantity of Water to be Taken Under Eight of Diversion—Judge Owning Lower Riparian Lands.—The judge of the superior court of Inyo County, owning lands riparian to the Owens Biver, is disqualified from trying an action to which he is not a party, but which necessarily involved an. issue as to the quantity of the water of the river one of the parties to the action has the right to divert therefrom above and to the exclusion of the lands of the judge, as the smaller the interest in the stream ascertained to he possessed by such party, the greater remaining water there would be in the river to which riparian rights might be asserted by the judge.</p>

<p>Estates of Deceased Persons—Eights to Letters of Administration —Provision of Treaty With Sweden—Consular Officers have not Paramount Right.—Section li of the treaty of March '20, 1911, between the United States and Sweden, providing that “in the event of any citizen of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the Consul-General, Consul, Vice-Consul-General, or the Vice Consul of the nation of which the deceased may belong . . . shall, so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estates,” cannot be construed as conferring upon the consular officers of the Swedish government an exclusive and paramount right to letters of administration on the estates of subjects of that country dying intestate in the United States, and consequently, does not confer such exclusive and paramount right, with respect to the estates of subjects of the kingdom of Greece dying intestate in the United States, upon the consular officers of the kingdom of Greece, by reason of the application of the “most favored nation” clause found in article XI of the treaty of November 19, 1902, between the United States and the kingdom of Greece.</p> <p>I'd.—Construction of Treaty Provisions—Restriction on Eights of Consular Officers — Eight to Administration Controlled by State Laws.—The clause in such treaty with Sweden, “as far as the laws of each country will permit,” has but one meaning, as far as the language refers to this country, and means according to the laws of the particular state in the Union within whose jurisdiction the Swedish national may have died. Properly construed, such phrase has reference to the entire subject of administration as mentioned in the paragraph and qualifies not only the right given to a consular officer to take possession temporarily of the estate of a deceased national pending the grant of general letters of administration, but also the right itself to a grant of such letters.</p> <p>Id.—When Consular Officers Entitled to Administration.—Under the laws of this state, in the absence of next of kin entitled to inherit, the public administrator is entitled to letters of administration, and the Greek consul would only be entitled to administer by virtue of the treaty provision in the absence of an application for letters by the next of kin or the public administrator, and then only as a person “legally competent” within the meaning of subdivision Id of section 1365 of the Code of Civil Procedure. This is the only , right intended to be conferred 'by the treaty provision; such a right as our law of administration permits and not a right contrary to it.</p>

<p>Estates op Deceased Persons—Eight to Administration.—In determining the preferential rights of persons entitled to letters of administration on the estate of an intestate, sections 1365, 1368, and 1369, of the Code of Civil Procedure must he construed together.</p> <p>Id.—Guardian op Nonresident Minor Heir not Entitled to Letters. Under such sections, the guardian of the estate of a nonresident minor heir of a deceased intestate is not entitled to letters of administration on the decedent’s estate in preference to the public administrator.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco striking the defendant’s notice of intention to move for a new trial from the files. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>William M. Abbott, William M. Cannon, and Kingsley Cannon, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Justice’s Court—Appeal to Superior Court—Undertaking—Omission of Sureties to State That They are Householders or Freeholders—Jurisdiction.—The jurisdiction of the superior court of an appeal from the justice’s court, taken in compliance with the requirements of sections 978 and 978a of the Code of Civil Procedure, is not affected by the mere failure of the sureties on an otherwise sufficient undertaking on appeal to state in their affidavit to the undertaking that they were either householders or freeholders within the state, as required by section 1057 of that code. Such an undertaking is sufficient to give the superior court jurisdiction of the cause, and also to furnish the adverse party all the protection to which he is entitled under section 978 of the Code of Civil Procedure, and no second undertaking is required. If a new bond is filed supplying the omission from the affidavit, in accordance with the authorization of the superior court, it still remains that the original bond is still in force.</p> <p>Id.—Affidavit of Sureties not Part of Contract.—The affidavit of the sureties, required by section 1057 of the Code of Civil Procedure to accompany an undertaking or bond authorized or required by the law of this state, constitutes no part of the contract of the sureties.</p>

<p>APPEAL from judgments of the Superior Court of Santa Clara County and from order refusing a new trial. John E. Richards, Judge in Nos. 6122 and 6300; J. R. Welch, Judge in No. 6106.</p> <p>The facts are stated in the opinion of the court.</p> <p>Will M. Beggs, and R. C. McComish, for Appellant T. B. Hubbard.</p>

<p>Water-rights—San Francisco—Spring Valley Water Company— Public Duty to Furnish Water—Extension of System to Meet Growing Needs of Municipality.—The Spring Valley Water Company, as grantee and successor of the Spring Valley Water Works, a corporation organized for the purpose of supplying the city and county of San Francisco and its inhabitants with a sufficient supply of water for domestic use and other purposes under the act of April, 1858, which provided that “all corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure, fresh water to the inhabitants of said city and county, or city, or town, for family uses, so long as the supply permits, at reasonable rates, without distinction of persons, upon proper demand therefor,” when it accepted the franchise offered by the state by that act and undertook to supply the municipality of San Francisco and its inhabitants with water, assumed a public duty to be discharged for the public benefit; a community service commensurate with the offer of the franchise which involved the duty of providing a service system which would be reasonably adequate to meet the wants of the municipality not only at the time it began its service but likewise to keep pace with the growth of the municjgaUty, and to gradually extend its_ system as the reasonable wants o£_the growing community might _require,</p> <p>Id—Mandamus to Compel Extension of System into Populated Area —Reasonableness of Extension.—The inhabitants of an area of such municipality, embracing a district of approximately eight blocks square, and containing more than one hundred buildings having a value in excess of five hundred thousand dollars and occupied by some one hundred families, may maintain a proceeding in mandamus to compel such water company to make a reasonable extension of its water mains into and through the streets of such district, and to serve the inhabitants thereof with water sufficient for domestic purposes and for protection against fire, where it appears that the company had an adequate supply of water to serve such district, and had refused, after demand by such inhabitants and their offer to pay all lawful rates and charges for the water, to make such extension.</p> <p>Id.—-Limitation on Right to Compel Extension—Reasonableness of Demand for Service—Question of Fact.—The right of an inhabitant of the municipality or of the inhabitants of a particular portion of it to compel the service to them by the water company through the extension of its system, is not an absolute and unqualified right but is a relative one. The company has only assumed and become charged with the public duty of furnishing water where there is a reasonable demand for it and a reasonable extension of the service can be made to meet the demand. The right to require the service and the duty of furnishing it by an extension of the water system is to be determined from a consideration of the reasonableness of the demand therefor. The reasonableness of the demand for sendee, and whether it does or does not exist, is a question of fact to be determined by the court in each particular case where it is sought to compel an extension of service.</p> <p>Id. — Expenditures Necessary to Make Extension — Reasonable Necessity for Must Exist.—The matter of expenditure to be entailed by the public service company in extending its service is not a controlling feature in determining the reasonableness of a demand for it because the water rates established as a whole between the public service corporation and the city by the public body to which that duty is committed must be sufficient to yield a fair, just, and reasonable income on the property of the company devoted to public use, which would, include such necessary expenditures. But additional expenditure by the company or an additional burden on the rate payers as a whole should not be imposed for the benefit of a particular portion of the community unless a reasonable necessity for it exists. «</p> <p>Id.—Right to Enforce Extension not Limited to Board of Supervisors or Railroad Commission.—There is nothing in the provisions of the charter of the city and county of San Francisco nor in the constitution respecting the power of the board of supervisors or the state railroad commission which confers upon either of these public bodies primary and exclusive right to initiate proceedings compelling the water company to extend its water system to meet the present wants of particular inhabitants of the municipality, or anything which precludes the inhabitants of a city, or any portion thereof, which a public service corporation exercising such a franchise has obligated itself to serve with water, from applying directly to the courts to enforce the obligation to them which the corporation has undertaken to discharge.</p> <p>fo.—Inhabitant may Maintain Mandamus to Enforce Right to Water.—The right to be furnished'water, which the acceptance by the water company of its franchise legally secured to each inhabitant of the municipality, is in the nature of a public right accruing to him from his status as a person of the class for whose benefit the company obligated itself to furnish a water supply. By such acceptance a clear and perfect legal right was created in favor of the inhabitants of the municipality to compel a water service to them and imposed the clear and legal obligation upon the respondent to do so. Under such circumstances, when the right and the public duty are clear, mandamus is the proper remedy, and may be maintained by the individual inhabitants of the municipality.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Herbert Choynski, John T. Williams, Allen G. Wright, and Edgar D. Peixotto, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the Superior Court of the City and County of San Francisco and to George A. Sturtevant, Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson & Woolner, A. J. Monroe, and E. Lyders, for Appellants.</p>

<p>Slander of Title to Land—Quieting Title—Appeal by One Defendant From Judgment—Service of Notice of Appeal on Other Defendants.—In an action to quiet title to land and for damages for slander of title, in which judgment is rendered in favor of the plaintiff quieting his title and awarding him damages against several of the defendants, it is not necessary, on an appeal from the judgment taken by one of such defendants under the old method of appeal, to serve the notice of appeal on a nonappealing defendant against whom judgment was rendered by default, nor on parties joined as defendants against whom no judgment was rendered and who filed disclaimers in the action.</p> <p>In.—New Trial—Notice of Intention-—Service of Notice by Disclaiming Defendant—Notice of Appeal.—A defendant in such action, who had unequivocally disclaimed any interest in the land in controversy, but against whom the plaintiff had recovered judgment quieting his title and also an award for money damages on the theory that he was a joint tort-feasor, was not required to serve his notice of intention to move for a new trial, nor his notice of appeal from the order denying him a new trial upon any of his codefendants against whom judgment was entered.</p> <p>In.—Judgment Against Joint Tort-feasors—Appeal—Reversal of Judgment as to One Defendant.-—It is the statutory rule in this state that if a judgment be given against several defendants who have been sued as joint tort-feasors, the judgment, if found to be erroneous as to any one of the defendants, may be vacated as to that one only, and be continued in full force and effect as to the remaining defendants who have not appealed.</p> <p>Id.—Notice of Intention to Move for New Trial—Sufficiency of Form.-—A notice of intention to move for a new trial is not rendered ineffectual because the intention as stated was “to move the abovq entitled court to vacate the judgment entered in the above entitled matter and to grant a new trial in said cause.”</p> <p>Id.—Slander of Title Defined.-—Slander of title is the defamation of title to property, real or personal, by one who falsely and maliciously disparages the title thereto, and thereby causes the owner thereof some special pecuniary loss or damage.</p> <p>Id.—Slander of Title Contained in Executed Deed—Malice a Necessary Ingredient.—While an action for slander of title may be based upon defamatory words contained and published in an executed deed, still it is essential to the maintenance of such an action that the party claiming to be aggrieved by an alleged slanderous disparagement of his title should show, among other things, not only that the statements complained of were false, but that they were maliciously made with the intent to defame, and thereby disparage the title involved. In other words, malice, express or implied, in the making of slanderous statements is an essential ingredient of a cause of action for damages for slander of title, without proof of which such action must fail. The burden of proving such malice rests upon the plaintiff.</p> <p>Id.—Bank Accepting Deed as Security—Omission to Examine Title. The fact that a bank, without making any examination of the title, accepts from its creditor as security for the indebtedness due by him a deed to land in which the creditor has no interest, upon the creditor’s assurance that he is the beneficial owner of the property purporting to be conveyed, is not sufficient of itself to render the bank liable in an action for slander of the title of the owner of the land, in the absence of evidence showing either expressly or by fair inference that the acceptance of the deed was prompted by malice.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing to set aside an order for the adoption of a minor child. Fred H. Taft, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>C. W; Hatton, W. S. Knott, and J. L. Fleming, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County sustaining a demurrer. John Perry Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate of Deceased Person—Widow’s Bight to Administer Dependent on Bight of Succession.—Under section 1365 of the Code of Civil Procedure, the widow of a deceased intestate, unless she is entitled to succeed to a part of his personal estate, is not entitled, as of right, to letters of administration thereon.</p> <p>Id.—Agreement Between Husband and Wife—Belinquishment of Bight of Inheritance in Husband’s Estate.—An agreement between a husband and wife, after a partition of their property, provided: “And the said parties hereby release each to the other, all claim for support, or any claim against the others estate that he or she might have or assert, now or in the future, to any estate now assigned, or hereafter acquired by either, whether received by purchase, descent, inheritance or otherwise.” By subsequent clauses it was provided that the agreement should operate as and be a complete adjustment, settlement, and division of all their property rights, relations, and affairs; that in the event either of the parties should thereafter institute divorce proceedings, such action should not in any way affect the agreement, whether the parties remained husband and wife or not; and that, in consideration of the agreement, the wife expressly waived any and all claims she might then have or subsequently acquire against the husband “for alimony, support, maintenance, attorney’s fees, or other claim whatsoever.” Held, that the agreement, taken as an entirety, operated to deprive the wife of any right of inheritance in her husband’s estate, and barred her right to administer thereon.</p> <p>Id.—Interlocutory Decree of Divorce—Marital Belatton Not Severed by.—An interlocutory decree of divorce, which has not become final at the time of the husband’s death, does not sever the marital relation, nor deprive the wife of her right to administer on his estate.</p>

<p>The facts are stated in the opinion of the court, t</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. George E. Church, Judge.</p> <p>" The facts are stated in the opinion of the court.</p>

of Fresno County. George E. Church, Judge. This is an appeal by the defendants James Canal Company and Jefferson J. Graves et al., executors of the last will of Jefferson G. James, Deceased, from certain portions of the judgment that is reviewed in the preceding ease of Miller and Lux, Incorporated, v. Enterprise Canal and Land Company, (S. F. No. 6061), ante, p. 415, [147 Pac. 567], and the facts and nature of the questions involved are stated in the opinion in that appeal.

<p>APPEAL from a judgment of the Superior Court .of Fresno County. George E. Church, Judge.</p> <p>This is an appeal by the defendants James Canal Company and Jefferson J. Graves et al., executors of the last will of Jefferson G. James, Deceased, from certain portions of the judgment that is reviewed in the preceding ease of Miller and Lux, Incorporated, v. Enterprise Canal and Land Company, (S. F. No. 6061), ante, p. 415, [147 Pac. 567], and the facts</p> <p>and nature of the questions involved are stated in the opinion in that appeal. The two appeals were originally considered together, and on the 20th of December, 1913, an opinion was rendered by the Court in Bank covering both appeals. A rehearing was subsequently granted in the appeal No. 6061, and the publication of that portion of the previous opinion specifically applicable to the present appeal has been deferred until the determination of the appeal No. 6061. The further facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the members of the city council of the city of Vallejo.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Decree of Distribution—Effect of Omnibus Clause.—A provision in a decree distributing the estate of a deceased person, to the effect that any other property not now-known or discovered, which may belong to said estate, or in which the estate may have an interest, is distributed to a specified person, is sufficient to pass whatever interest the deceased had at the time of his death in property not specifically mentioned in the decree.</p> <p>Deeds — Conditions Subsequent — Construction.—Conditions subsequent in deeds are not favored in law because they tend to destroy estates, and no provision in a deed relied on to create a condition subsequent will be so interpreted if the language of the provision will bear any other reasonable construction.</p> <p>Id.—Creation of Conditions Subsequent—Forfeiture Clause.—It is not essential to the creation of a condition subsequent that a forfeiture clause should be inserted, such as that a failure to comply with the condition will render the conveyance null and void, and the premises shall revert to the grantor, though some such clause would appear to be extremely desirable and in some eases absolutely necessary for the purpose of showing clearly and unmistakably the intent of the grantor.</p> <p>Id.—Use of Words “On Condition”—Intent of Parties.—While no precise form of words is necessary to create a condition subsequent still it must be created by express terms or by clear implication. The words “on condition that,” are apt and appropriate words, both in their technical and popular sense, to create the condition, and such words ex proprio vigore import such condition, in the ah""nco of other language inconsistent therewith. The mere use of such words, however, will not necessarily import such condition, when the intent of the parties, as gathered from an examination of the whole instrument, is otherwise.</p> <p>Id.—Deed to Charitable Corporation—-Condition Subsequent not Created.—The deed in question- was made to a corporation, named the Victoria Hospital Association, formed solely for the charitable purposes, as stated in its articles of incorporation, “to provide medical attendance and medicines, and hospital accommodations, for the sick; to establish and conduct an hospital to be known as the Victoria Hospital; to acquire, buy, sell or encumber real estate or other property in connection with the objects of the association; to take charge of the property thereof; and generally -to do and perform, in accordance with the law and the by-laws thereof, all and every act and thing requisite or desirable to carry out the objects of the association.” The deed recited tha-t “for the consideration hereinafter stated,” the grantor gave to the grantee, “its successors and assigns forever,” a lot of land in the city and county of San Francisco, one hundred feet square, “to have and to hold the said premises unto said party of the second part, its successors and assigns forever.” Following the habendum, and tenendum, clause was this provision. “This deed is made upon the express condition and for -the consideration that the said real property hereby conveyed and the income therefrom, shall be used by the said party of the second part for benevolent purposes and in all respects in compliance with the objects for which said party of the second part is formed, pursuant to its articles of incorporation. ... It is hereby provided that the hospital to be erected on the land be named the Victoria Memorial Hospital.” Seld, that the deed did not manifest an intent on the part of the grantor to express a condition affeeting the title to the land, and that, notwithstanding the use of the words “upon the express condition,” the whole instrument fairly expresses the intention on the part of the grantor to convey the property absolutely to the grantee in consideration of its mere promise to use the same for the purposes specified, being all the purposes for which the grantee was organized and exists, and that the provision was nothing more than a covenant on the part of the grantee to the effect that the property will be so used.</p> <p>Id.—Deed Does not Create Trust in Land.—Such conveyance, being in substance an absolute grant to the corporation for all its corporate purposes, the residuary devisee of the grantor did not acquire any contingent reversionary interest in the land, based upon the theory that a trust was created thereby.</p> <p>Id.—Dissolution on Charitable Corporation—Reversion op Land to Donor—Donor Retains Mere Possibility not Coupled With Interest.—Assuming the existence in this state of the rule that the real estate of a charitable corporation reverts or escheats to the donor upon its dissolution, the donor, during the existence of the corporation and while it owns the land, is without any legal interest therein. He has at most only a mere possibility, not coupled with an interest. Whatever legal interest in the property he may ever have, on this account, will be created only by the dissolution of the corporation at a time when it still owns the land.</p> <p>Id.—McEnerney Act—Decree Need not Determine Possibility op Donor.—In a proceeding by such corporation, under the so-called McEnerney Act, to establish its title to the land so conveyed, it is necessary to ascertain and determine only existing interests, and a decree establishing its title will not bar the assertion of the interest subsequently acquired by a reverter upon the dissolution of the corporation at a time when it still owns the land.</p>

<p>APPLICATION for a Writ of Certiorari directed to the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>Samuel Knight, Goodfellow, Eells & Orrick, C. L. Neumiller, and E. I. Jones, for Petitioner.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of Sonoma County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Intoxicating Liquors—Police Power—Restrictions on Sale Imposed by Boards of Supervisors.—Notwithstanding the legislative policy in the state of California of fostering and encouraging the manufacture and sale of native wines, the board of supervisors of a . county, in the exercise of its police powers, may impose upon the sale within such county of vinous and other liquors containing alcohol, any restrictions which are not in conflict with general laws. In this state the police power is efficient for the regulation or even for the prohibition of the liquor traffic by boards of supervisors within their respective counties.</p> <p>Id.—Ordinance of Los Angeles County—Provisions for Licensing in County Precincts—Election to Determine Questions of Issuance of Licenses—Manufacturing of Wine in Non-license Precinct.—Ordinance No. 245 (new series), of Los Angeles County, enacted in 1910, providing inter alia that “no person shall sell any intoxicating liquors in any quantity whatsoever, except at a fixed place of business, or without first obtaining a license therefor under the provisions of this ordinance,” nor shall, “in any voting precinct in. which a retail liquor dealer’s license cannot be obtained, solicit, take or receive any order for the sale or delivery of any intoxicating liquors; provided that nothing herein contained shall be deemed to prohibit the soliciting, taking or receiving of such orders by a duly licensed winery keeper or hotel or restaurant liquor dealer at his licensed place of business;” and that “no application for .either a wholesale or retail liquor dealer’s license, or a winery keeper’s license, or a hotel or restaurant liquor dealer’s license, shall be granted unless at the last preceding general election at which the question of granting licenses of the kind applied for was submitted to the people, the majority of the votes east upon the question of granting licenses of the kind applied for, in the voting precinct in which the business is proposed to be carried on, was in favor of granting such licenses,’" is not invalid in that it attempts to prohibit the conducting of the lawful industry of manufacturing wines. Properly construed, the ordinance places no ban upon the manufacture of wines within a non-license precinct, nor the sale of such products therein for delivery in territory outside that part of Los Angeles County in which such traffic is prohibited, and is within the legitimate power of the board of supervisors to enact.</p> <p>Id.—Wyllie Act—Ordinance Providing Different Scheme of Local ' Option.—Such ordinance is not invalid on the ground that it provides a different scheme of local option from that authorized by the so-called “Wyllie Act.” That act only limits the powers of the supervisors in territory that has been voted “dry”; in other parts of a county the police power of the board of supervisors is undiminished, and there is nothing in the act which prevents the board from exercising such power in any part of the county which has not been subjected to the prohibitive force of that law.</p> <p>Id.—Submission of Question of Issuance of Licenses to Voters of Precincts.—The board of supervisors had authority, under the general power given by section 11 of article XI of the constitution, to submit to the voters of the various precincts in the county, as provided in such ordinance, the questions relating to the issuance of licenses in such precincts.</p> <p>Id.—Ordinance not Discriminatory Against Manufacturer of Wine. Assuming the possibility that in a particular precinct retail liquor licenses might be issued but winery keeper’s licenses might be denied, and consequently wines of foreign manufacture might be sold, while those made in the precinct could not be disposed of, that fact would not necessarily destroy the ordinance by rendering it discriminatory against a manufacturer of wine in such precinct.</p> <p>Id.—Ordinance Does not Prohibit Disposal of Goods Lawfully Possessed—Interstate Commerce.—Such ordinance is not invalid as an attempt to prohibit the disposal of goods lawfully possessed. Its operation being confined to the territory under the regulative authority of the supervisors of Los Angeles County, a manufacturer of wine, or his employee, is at liberty to dispose of his products at any place outside of that area. Nor does the ordinance by its terms prevent the shipment of goods in the practice of interstate commerce.</p> <p>Id.—Fourteenth Amendment op Federal Constitution not Violated. Being a legitimate exercise of police power, the ordinance does not violate the provisions of the fourteenth amendment to the constitution of the United States.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William M. Abbott, William M. Cannon, and Kingsley Cannon, for Appellant.</p> <p>Sullivan & Sullivan and Theo. J. Roche, for Respondents.</p>

Murasky, Judge of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court. Charles S. Wheeler, John F. Bowie, and Nathan Moran, for Petitioners.

<p>The facts are stated in the opinion of the court.</p> <p>A. S. Halsted, W. F. Palmer, Wilfred M. Peck, and F. A. Waters, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. S. Halsted, W. F. Palmer, F. A. Waters, and Wilfred M. Peck, for Appellant.</p>

<p>Tide Lands Reserved prom Sale—City op Los Angeles as Dependant —Judicial Notice op Act op Legislature.—In a controversy over tide lands situated within the hay of San Pedro, in which the city of Los Angeles was substituted as a defendant in place of the city of Wilmington, the court will take judicial notice of the act of legislature of May 1, 1911, passed pending the suit, granting to the city of Los Angeles all the right, title, and interest of the state in all the tide and submerged lands within the city’s boundaries, as then constituted, in trust for certain enumerated uses and purposes of public navigation and commerce, the lands subject to the controversy being among those so granted, and will consider such city as successor to the state for all the purposes of the suit.</p> <p>Id.—Lands Withheld from Sale—Effect of Patent—Subsequent Accretions.—A patent to tide lands issued during a period when such lands were by law being withheld from sale would be of no effect; and no artificial embankment, made by third persons or made or suffered to be made by state officers or agents, nor any accretion to the adjacent upland caused thereby, could operate to divest the state of its title to the tide land so reserved.</p> <p>Id.—Tide Land Within Two Miles of Wilmington—Disincorporation op Town—Accretions Caused by Embankments—State Title not Divested in Pavor op Owner of Uplands.—The fact that there was an interval of nearly a year, being the period between March 12, 1887, the date of the repeal of the act incorporating Wilmington, and March 1, 1888,. the date of the incorporation of the city of San Pedro, during which there was no incorporated city or town within two miles of the tide -land in controversy and it was free from the reservation prohibiting its sale, did not have effect to attach to the upland, as part thereof, accretions previously formed by railroad or other embankments thereon, or to divest the state to its title to the tide land with which it had not previously parted. The making of such railroad embankments under license from the state, or accretions caused thereby, could not operate in favor of third persons to divest the state of its title to the land covered by the embankment and accretions extending out over it from the adjacent upland, and transfer the title to the owner of the upland.</p> <p>Id.—Pilling in Land by City of Los Angeles.—The change made by the city of Los Angeles in the character of the land, after its acquisition of the title by filling in the land so as to fit it for navigation and commerce, did not have the effect to transfer it to the owners of the abutting upland.</p> <p>Id.—Hiparían Eights Over Tide Lands Are Subject to Public Basements.—All rights of riparian owners over the adjacent tide lands are subject to the public easements for the purposes of navigation, and must yield thereto when the latter are asserted by the state or its agencies.</p> <p>Ib.—Adverse Possession—Public Eights not Divested.—No character ' or period of adverse possession can terminate or affect the public easements for purposes of navigation and fishery, and no length of time of maintain anee, or number of repetitions, of wrongful encroachments can legalize a public nuisance. Adverse possession of land devoted to public use does not divest the right of the state, or other public body in which the title is vested, to maintain such public use, nor in any manner affect the public right or the public use.</p> <p>Id.—Public Easement—Adverse Possession—Soil or Land.—Possession under adverse claim of title of tide land devoted to public use is wholly ineffectual, not only upon the public right or easement, but also upon the title to the soil or land, including the public easement and every subordinate estate, as well. Per Shaw, J., SIoss, J. concurring. Angellotti, G. J., concurred in the judgment on the ground that the evidence failed to show any actual possession of the tide land in controversy, and that the question as to the acquisition of title by adverse possession was governed by the ease of Wheatly v. San Pedro etc. It. It. Co., ante, p. 505; Henshaw, L, Melvin, J;, and Lorigan, J., concurred in the judgment on the ground that if the asserted- occupancy of the appellants was constructive merely, no prescriptive title could be acquired, or if actual and visable and not under license or grant from the state, it was a mere purpresture, subject to abatement at any time at the will of the state.</p> <p>Id.—Subordinate Estate—Adverse Possession.—There is nothing in the law of California from which it can be reasonably inferred that the state intends that adverse possession shall operate against the subordinate estate in cases in which it is inoperative upon the public use.</p> <p>Id.—Servient Estate—Adverse Possession.—Where under the law the hostile possession cannot operate upon the easement for the enjoyment of which the surface is necessary, and where no notice of any claim to the servient estate is brought home to the owner thereof, such possession could not affect or divest such servient estate.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Frank Karr, Gibson, Dunn & Crutcher, O’Melveny, Stevens & Millikin, W. R. Millar, E. E. Bacon, Ward Chapman, and Sheldon Borden, for Appellants.</p> <p>U. S. Webb, Attorney-General, Leslie R. Hewitt, John W. Shenk, A. P. Fleming, and Anderson & Anderson, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of Los Angeles County.</p> <p>The facts are similar to those stated in the opinion of the District Court of Appeal in the Matter of Lapique, 26 Cal. App. 258.</p>

<p>Appeal—Review op Evidence—Section 4Ys op Article VI op Constitution—Limitation on Jurisdiction.—It has always been the desire and policy of the supreme court to disregard unimportant and unsubstantial errors appearing in the record, and to reverse causes only for reasons affecting the merits of the ease and the substantial rights of the parties. Prior to the recent amendment of section 4% of article VI of the constitution, its power to do so has been somewhat limited by the limitations upon its jurisdiction to consider the evidence.</p> <p>Id.—Constitutional Change Appects Both Civil and ‘Criminal Cases —Injury no Longer Presumed prom Error.—Since the amendment of section 4% of article VI of the constitution, now applicable in civil as well as criminal cases, it is the duty of the appellate court to review conflicting evidence for the purpose of aseertaining whether or not an error "has resulted in a miscarriage of justice,” and to disregard a manifest error, when, upon such examination, it shall not be of the opinion that the error complained of has resulted in a miscarriage of justice. Injury is no longer presumed from error, but must appear affirmatively to the mind of the court after the examination required, or from the nature of the error itself.</p> <p>Id.—Constitutional Provision Applicable to Pending Cases.—Such amendment applies to pending appeals, submitted prior to its adoption. A party has no contractual or vested right to have a judgment reversed because of an error which the court cannot say has produced what that section describes as a “miscarriage of justice.”</p> <p>Id.—Meaning op Phrase “Miscarriage op Justice.”—Just what may be included in the phrase “miscarriage of justice” is to be determined in each particular ease as it is presented. No precise definition can be given to it.</p> <p>Eminent Domain—Bight to Jury Trial—Issue op Compensation.— The constitution gives to the defendants in a condemnation suit the absolute right to a jury trial of the issue of compensation; but the legislature is left free to provide as it may see fit for the method of trial of other issues.</p> <p>Id.—Constitutional Bight to Jury Trial—Section 592 op Code op Civil Procedure.—Section 592 of the Code of Civil Procedure as amended in 1874 limits the right to a jury trial to common law actions.</p> <p>Id.-—-Verdict op Jury When Advisory.—The verdict of a jury in a ease in which trial by jury is not a right is advisory to the court, and findings by the court are necessary to complete the record.</p> <p>Id.—Condemnation Suit a Special Proceeding—Issues Other Than Compensation Triable by Court—Findings Bequired on Special Verdict.—A condemnation suit is a special proceeding and not within the classes in which, under section 592 of the Code of Civil Procedure, a jury trial is required. Except those relating to compensation, the issues of fact in a condemnation suit are to be tried by the court, and if the court submits them to a jury it must make findings either by adopting the verdict thereon or by making findings in its own language.</p> <p>Id.—Error in Instructions When Prejudicial—Findings Made by Court.'—Error in instructions, in a condemnation suit, upon other issues than that of compensation, and upon which the court has itself weighed the evidence and made findings, would not justify a reversal, unless upon the whole ease, including the evidence, the appellate court finds that it caused substantial injury or a miscarriage of justice.</p> <p>Id.—Condemnation op Land por Bailroad—Cost op Fences—Omission prom Verdict—Premature Judgment Entered by Clerk— Subsequent Judgment on Findings of Court.—Section 1248 of the Code of Civil Procedure, requires that in a suit to condemn land for a railroad the court or jury shall find the cost of fences and of cattle guards. A preliminary judgment entered hy the clerk of the court» upon a verdict'silent on this point is prematurely entered and of no effect, as against a later judgment in the same case made upon findings and conclusions by the court upon the matters before it, including the matter of fences, etc.</p> <p>Id.—Juror—Employee of Another Railroad—Challenge.—In such a suit if a juror on his voir dire being employed by another railroad, admits that his employment might influence his verdict, it is proper . to excuse him on the plaintiff’s challenge; and, although he may have contradicted himself on the point, that fact does not affect the question so far as concerns the action of the supreme court on appeal.</p> <p>Id.—Passing Panel for Cause—Peremptory Challenge—Discretion.—After a jury panel is filled and all the jurors have been examined and passed for cause by both parties the court may, in its discretion, permit the plaintiff to exercise its remaining peremptory challenge.</p> <p>Id.—Irrelevant Examination of Juror.—In a condemnation suit a proposed juror may not be asked how, in the absence of evidence on the subject, he would determine the extent of the plaintiff’s ability to pay for the land; the question of the plaintiff’s ability to pay is irrelevant to the examination on the voir dire.</p> <p>Id.-—Opening Statement of Plaintiff—Unprejudicial Remarks.— When, in a suit for the condemnation of land for a railroad, the • answer denies any intention on the part of the plaintiff to build a railroad and alleges the real intention to be the acquiring of the defendant’s land not for any public use, it is not error for the court to overrule an objection by the defendant to comments in the plaintiff’s opening statement, on the opposition and difficulties the plaintiff has encountered in building its line to this land, and its persistence in its purpose nevertheless; since the matters so commented upon tend to show good faith in the plaintiff; and the circumstance that the comments may harm the defendant does not render their being made misconduct, provided the making of them is in good faith.</p> <p>Id.—Attack on Plaintiff’s Corporate Existence—Similarity of Name.—Where the plaintiff does business as a corporation under a name stated in a certificate of incorporation issued by the secretary of state, and in good faith claims to be legally incorporated thereby, it is a de facto corporation claiming to be one de jure, and its right to exercise corporate powers can be inquired into only by the state. The fact that a pre-existing corporation has a similar name is no ground, in such a case, for excluding its articles, when offered in evidence.</p> <p>Id.—Evidence of Corporate Existence—Bona Fides of Plaintiff as to Public Use.—Where defendant denied corporate existence of plaintiff it was not error to admit evidence tending to show that plaintiff was a de faeto corporation, and tending to prove the bona fides of the corporation in condemnation proceedings, even though the articles of incorporation admitted were sufficient prima facie to show its legal corporate existence.</p> <p>Id.—Defense of Private Use—Evidence to Combat.—Land can only be taken for a public use and if plaintiff condemning land for public use really intends to devote it to a private use, this, if proven, would be sufficient to defeat the action, and where such private use is in issue error cannot be predicated upon the admission of evidence to disprove it.</p> <p>Id.—Evidence as to Necessity of Taking.—Evidence that plaintiff had planned a railroad system composed of several branches, and that the proposed route over defendant's land was a part of that system, and that in pursuance of that plan it had constructed other parts of that system, was proper to be considered upon the question of the necessity for taking.</p> <p>Id.—Evidence as to Obstacles to Prevent Building of Bo ad.—Testimony by the president of the plaintiff company describing his efforts to overcome obstacles to the building of the proposed road and in defeating the opposition to the enterprise tended to show that plaintiff sought to acquire the land for railroad purposes in good faith.</p> <p>Id.—Evidence—Admissibility—Collateral Effects.—Evidence properly admissible upon the issues presented cannot be excluded because it may have ulterior or collateral effects detrimental to one of. the parties.</p> <p>Id.—Eight of Bailroad to Condemn Land for Freight Sheds.—Under section 465 of the Civil Code, subd. 7, empowering a railroad to acquire by condemnation the lands and other property “to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts” thereto, a railroad company can condemn land for freight sheds to be used for the convenient operation of its road in the transportation of freight.</p> <p>Id.—Statutory Authorization for Condemnation of Land for Wharves.—Section 1238 of the Code of Civil Procedure authorizes the condemnation of land for wharves, docks, piers, and chutes, and where a railroad extends to a navigable river, wharves for the convenient transfer of freight between the cars upon the railroad tracks and the boats plying upon the river may reasonably be said to be necessary for the convenient operation of such railroad and land may be taken for such purpose under section 465 of the Civil Code.</p> <p>Id.—Construction of Statutes Applicable to Wharves and Bail-roads.—Sections 528-531 of the Civil Code, dealing with “bridges, ferries, wharves, chutes, and pier corporations, constituting Title VI, Part IV, Division I, are to be construed in connection with Title III, relating exclusively to railroad corporations, in which section 465 is found, and when so construed, it is apparent that Title VI was not intended to apply to corporations formed under Title III, for the purpose of constructing and operating railroads.</p> <p>Id.—Railroad Company Need not Obtain Wharf Franchise.—The legislature never intended that railroad companies must obtain, within six months after filing of articles of incorporation, wharf franchises from authorities in control of navigable rivers, over which the railroad should pass, and of every terminal at tide water, or cease to be corporations if they failed to do so.</p> <p>Id.—Right of Railroad Companies to Maintain Wharves—Statutory Provisions.—Nothing in section 2921 of the Political Code prohibits a railroad company from constructing and operating wharves for its own business, without authority from the board of supervisors, at places where the railroad extends to navigable water and where such wharves are necessary for the successful operation of its railroad.</p> <p>Id.-—Constitutional Restriction Against Excluding Right of Way to Navigable Water—Public Use Conserved by Railroad Wharf. The use of such wharves by a railroad company would not exclude the right of way for public purposes, in contravention of section 2, article XV of the constitution, because their use as such would constitute one of the public purposes protected by such provision of the constitution.</p> <p>Id.—Area Required for Wharves for Future Business—Instructions.—Where articles of incorporation give a railroad company power to own and run steamers, it was not prejudicial to instruct the jury that the railroad company had a right to own and hold steamers and use them in connection with its railroad and condemn land necessary for the accommodation of steamers.</p> <p>Id.—Pleading—Instructions—Evidence.—Where there is a general allegation that land to be taken is all necessary for the proposed railroad and there were specific allegations that certain parts of the tract were necessary for specified uses pertaining to the construction or operation of the road, it was not error to instruct the jury that they could allow such quantity of land for wharves as they should believe reasonably necessary to accomodate the future business of the road in delivering and receiving freight to and from its cars to such steamers as they believed would probably be plying upon the river. Evidence as to the probability of business from that source held properly admitted.</p> <p>Id.—Necessity of Taking—Evidence.—On the question of necessity of taking land for railroad purposes evidence was admissible showing nature of country, territory efintributing freight and passengers, the products of such' territory, the probable future growth, and possible volume of passenger traflic.</p> <p>Id.—Evidence as to Proposed Connection With Another Railroad.— Where on cross-examination the president of a railroad company condemning land has testified that another company proposes to build a connecting line, and the party cross-examining has sought to establish by the witness that part of the land to be taken is for the benefit of such other company, the witness should be permitted on redirect examination to testify that the other road has its line in course of construction and that plaintiff will obtain business from it when completed.</p> <p>Id.—Opinion Evidence as to Probable Amount op Business—Railroad Business a “Trade.”—The effect of electric roads in the settlement and development of the country they penetrate and in obtaining traffic previously going to other railroads is not a matter of common knowledge, and opinion evidence by a witness having actual experience with the subject as to what proportion of the products of the territory through which the proposed road passed would be shipped over the plaintiff’s road when constructed, was properly admissible. The business of operating a railroad is deemed a “trade” within the meaning of subd. 9 of section 1870 of the Code of Civil Procedure, allowing opinion evidence.</p> <p>Id.—Reports op State Agricultural Society—Evidence.—The report of the state agricultural society, when printed by order of the state board of examiners, is a public document, and admissible in evidence as such. It constitutes legal evidence although not conclusive, of the facts therein stated regarding the products of the state and its subdivisions.</p> <p>Id.—Intention to Operate Railroad by Electricity—Circumstantial Evidence.—The intention of a railroad company to operate its road by electricity can be shown by circumstantial evidence, as well as direct.</p> <p>Id.-—Reclaimed and Unreclaimed Lands Contiguous to Road—Expert Evidence — Proper Foundation — Map Showing Character op Land.—Where witness is shown to be a competent and experienced civil engineer and familiar with the country contiguous to the proposed road, there is sufficient foundation laid to qualify such witness to state approximately the respective areas of reclaimed and unreclaimed land within such country, and for the introduction in evidence of a map purporting to delineate such lands, prepared by the witness partly from his own observation and partly from official sources. Such evidence had some bearing, although somewhat remote, upon the question of the future business of the road and the necessity for taking, and it was within the discretion of the court to allow it.</p> <p>Id.—Amount op Freight Handled—Evidence.—The opinion of witnesses based upon investigations made by inquiries of shippers and others engaged in the freighting business from1 other sources as to •the approximate amount of freight handled at the terminal point of plaintiff’s railroad was proper evidence of the facts necessary to determine the question of necessity.</p> <p>Id.—Redirect Examination—Explanation by—Report Used by Witness in Preparing Plans for Tracks.—Where witness, the engineer who planned plaintiff’s tracks and other structures on the land in controversy, testifies on direct examination as to the various uses the several tracks were to be put, and on cross-examination the attempt is made to show that he made the plans larger than necessary, it is permissible on redirect examination to introduce in evidence a report made to the plaintiff and used by the witness in making his plans, for the limited purpose of explaining why the witness has fixed upon the land sought to be condemned as the area of land necessary fur plaintiff’s use.</p> <p>Id.—Opinion Evidence — Qualification of Witnesses — Ruling of Trial Court—Review on Appeal.—The question whether or not a witness is qualified to give his opinion, as evidence upon a matter in issue, is submitted to the trial judge in the first instance, and is to be determined by him before such opinion may he given. It is in the nature of a trial of a question of fact by evidence addressed to the judge alone, and as in other decisions on questions of fact by a trial court, his ruling thereon was a matter of discretion and will not he overturned on appeal unless there is an actual want of evidence to support it or a clear abuse of discretion.</p> <p>Id.—Instructions—Public Interest—Just Compensation.—An instruction stating that as the power of eminent domain is necessary for the public good, “it would be unjust to the public that the plaintiff should be required to pay the owner more than a fair indemnity for the loss he sustains by the appropriation of his property for the general good. On the other hand, the owner being compelled to part with his property, whether he desires to sell or not, the law allows him just compensation therefor,” was not improper, the same, in substance, charging the jury that they should allow the owner of the land just compensation and that public interest demanded that he should receive no more.</p> <p>Id.—Fixing Value of Land—General Knowledge of Jury—Instructions.—An instruction directing the jury to weigh the testimony of witnesses giving opinions as to value “by reference to the whole situation of the property and its surroundings, and all the surrounding circumstances, and by applying it to your own experience and ■ knowledge. While you cannot act in any ease upon particular facts material to its disposition resting in your private knowledge, but should he governed by the evidence adduced, you may and should judge of the weight and force of the evidence upon your own general knowledge of the subject of the inquiry,” is not improper.</p> <p>Id.—Probable Area Required for Terminal—Necessity—Instructions.—It was not error to instruct the jury that in determining questions of necessity they should take into consideration the character of the business proposed to be done by plaintiff’s railroad, the manner of doing it, the future needs of communities plaintiff would serve and the number of persons to be served, as these things had direct bearing upon the probable area required for its terminal.</p> <p>Id.—Necessity for Taking—Ambiguous Instructions Without Prejudice.—Certain instructions on the question of the necessity of taking a specific strip of land for the purposes of the plaintiff’s tracts, and other instructions on the general subject of the necessity for the taking, even if they be deemed ambiguous or erroneous, are held not to have been prejudicial or misleading.</p> <p>Id.—Date of Fixing Value of Land—Amendment of 1911—Constitu-tional Law.—Where an action was commenced and summons issued May 5, 1910, an instruction that the jury in determining the compensation to be given must consider the value of the land as it was at the date of the commencement of the action, is correct and in accordance with section 1249 of the Code, of Civil Procedure as it then stood, and the amendment of said section effective June 9, 1911, is not applicable to the present ease. The portion of the amendment making the proviso inapplicable to pending litigation is not unconstitutional as class legislation. Even if invalid the entire proviso would have to be eliminated and the section would stand as it was before amendment, so that in either case the instruction was correct.</p> <p>Id.—Form of Judgment—Award of Easement and Fee in Land— Permanent Buildings.-—Under section 1239 of the Code of Civil Procedure, a judgment condemning land for railroad purposes is proper when it awards only an easement in the land for the right of way for the various kinds of tracks, and the fee for that part of the land to be used for a storehouse, a blacksmith shop, a machine shop, wharves, offices, and other purposes requiring the construction of substantial buildings thereon. Such structures are “permanent buildings” within the meaning of that section.</p>

<p>The facts are stated in the opinion'of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gavin McNab, B. M. Aikins, and George W. Mordecai, for Plaintiff and Appellant.</p> <p>Edward C. Harrison, and Maurice E. Harrison, for First Intervener and Appellant.</p>

<p>Inheritance Tax-—Transfer of Husband to Wife in Contemplation of Death.—Under the Inheritance Tax Act of 1905 (Stats. 1905, p. 341), as amended in 1911 (Stats. 1911, p. 713), imposing a tax upon the transfer of any property, “when the transfer is of property ... by deed, grant, bargain, sale, assignment, or gift, made without valuable and adequate consideration in contemplation of the death of the grantor, vendor, assignor or donor,” and providing in section 27 thereof, that “the words ‘contemplation of death,’ as used in this act, shall be taken to include that expectancy of death which actuates the mind of a person on the execution of his will, and in nowise shall said words be limited and restricted to that expectancy of death which actuates the mind of a person in making a gift cama mortis,” certain gifts made by a husband to his wife, at a time when he was suffering from a mortal disease, and had full knowledge of the character of his ailment, the first of which was made two days before he underwent a grave surgical operation considered absolutely necessary to save Ms life, and the other of which was subsequently made after a recurrence of the disease and about five months before his death, must be considered as made in contemplation of death, within the meaning of the act, and liable to the tax thereby imposed.</p> <p>Id.—Transfer from Father to Son—Inadequacy of Consideration.— A transfer made by such person to his son, about four months before Ms death, of a department store and its contents, valued at upwards of one hundred thousand dollars, upon the son’s agreeing to assume the indebtedness of the business, amounting to about thirty thousand dollars, and to pay the father six hundred dollars per month during his life, is not for “a valuable and adequate consideration,” within the meaning of such inheritance tax law, and is likewise liable to t'he tax thereby imposed.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Forfeiture of Credits by Convict—Determination by Board of Prison' Directors.—The board of prison directors, in reaching the determination, as provided by section 1588 of the Penal Code, that a convict by reason of his misconduct had forfeited his credits, is not required to proceed with the formality required of the courts. Its functions are primarily administrative. The essential thing is the existence of the jurisdictional facts, not the recital of their existence in the records of the board.</p> <p>Id.—Habeas Corpus—Evidence of Misconduct of Convict.—The courts will not, on habeas corpus, consider the sufficiency of the evidence of a convict’s misconduct, on which the board acted in declaring a forfeiture of his credits, or hold their proceedings invalid, if the offense charged is one which can fairly be considered as embraced within the provisions of the statute applying to the forfeiture of credits.</p> <p>Id.—Provisions for Forfeiture of Credits Applies to Convicts on Parole.—Section 1588 of the Penal Code authorizes a forfeiture of credits for offenses committed by convicts while at liberty on parole, „ as well as for those committed by them while actually confined within the prison inelosure. Under the parole law of 1893 as amended in 1901 (Stats. 1901, p. 82), a prisoner on parole is “in the legal custody and under the control of the state board of prison directors,” and the rules which the board may make for his conduct outside are “the rules and regulations of the prison,” within the meaning- of that phrase as used in section 1588 of the Penal Code, for the violation of which the board may declare such forfeiture.</p>

<p>Public Lands — Resurvey or Lands in San Diego County —• Act op Congress op July 1, 1902—New Survey Supersedes Old—Boundaries op School Lands.—Under the act of Congress of July 1, 1902, providing for a resurvey of a specified township in San Diego County (now Imperial County), to cure the obliterations of the monuments appearing on the field notes of the original survey of 1856, the new survey supersedes the old one, and regulates the disposition of the public lands within the area affected as to all persons not in the actual occupancy of the land; and unoccupied sixteenth and thirty-sixth sections passing to the state of California upon the approval of the old survey are governed, in the respect of their boundaries, by the resurvey.</p> <p>Id.—Control op Congress Over Public Lands.—There is no constitutional objection to that act. The public lands are under the exclusive control of Congress, until title or a right to acquire title has, pursuant to some law, vested in some person or body corporate other than the United States.</p>

<p>The facts are stated in the opinion of the court.</p> <p>G. C. De Garmo, J. W. McKinley, and W. R. Millar, for Appellant.</p> <p>Albert Lee Stephens, City Attorney, John W. Shenk, City Attorney and Charles H. Hass, Deputy City Attorney, for Respondents.</p>

<p>APPLICATION for a Writ of Supersedeas to stay the enforcement of a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Nonsuit When Proper—Plaintiff’s Negligence Proximate Cause of Injury.—Where a judgment of nonsuit is rendered in an action to recover for personal injuries alleged to have been caused through the negligent operation of a railroad train by the defendant, the fact that the defendant omitted the usual precautions and was negligent does not require a reversal, if the other circumstances indicate, as matter of law, that from the most favorable view of the facts the court must have concluded that the plaintiff’s own negligence was the proximate cause of the injury.</p> <p>Id.—Crossing Railway Track—Failure to Look for Approaching Train.—In the case of injury by a passing train to a person crossing the track, intent upon reaching a mail-car on a siding in order to post a letter, although the plaintiff may testify that he did look and listen but failed to observe the approaching train, if the facts undisputably show, as they do in the present case, that by looking he could not have failed to see the train coming, he cannot recover and a nonsuit" is properly granted, even if the approaching train failed to sound either bell or whistle.</p> <p>Id.—Duty of Person Approaching Railway Track.-—A person approaching a railway track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen.</p> <p>Id.—Contributory Negligence When not Question for Jury.— Although the question of contributory negligence or freedom from it is ordinarily one for the jury, where, as in the present case, the standard of conduct is so obvious as to be applicable to all persons, and the plaintiff has failed to measure up to that standard under the circumstances shown, he is not entitled to have his ease go to the jury.</p>

<p>Probate op Foreign Will—Contest—Standing on Demurrer—Admission op Truth op Allegations.—The proponent of a foreign will to which a contest has been interposed, by standing upon his demurrer to the contest after the same has been overruled, and refusing to answer, admits the truth of all the allegations well pleaded in the contest.</p> <p>Id.—Bes Judicata and Estoppel by Judgment—Principles op are Applicable to Bar Probate op Foreign Will.—Although the code does not say, in express terms, that estoppel by judgment may be urged to bar the probate of a foreign will, and although it specifies the general grounds for contesting probate, it cannot be held that in the enumeration of these specific grounds of contest the law meant to declare that the principles of res judicata and estoppel by judgment are inapplicable in such a contest; on the contrary, such principles are applicable in a case where the probate has been specifically forbidden by a final decree in equity.</p>

<p>Practice—Dismissal for Want of Prosecution Before Answer—Inherent Power of Court.—In cases where no answer has been filed the superior court, as a court of general jurisdiction, has inherent power without the aid of statute, to dismiss the action for want of prosecution. The limitations of the court’s power to dismiss for such reason, contained in section 583 of the Code of Civil Procedure, apply only to the particular instance of delay in bringing the ease to 'trial after answer filed.</p> <p>Id.—Unreasonable Delay in Piling Complaint, Taking Out and Serving Summons—Discretion not Abused.—The filing of a complaint in an action to recover for personal injuries when but eleven days are left of the statutory time limit therefor, the taking out of summons within but three weeks of the limit of time for its issuance, and the delay of service until there remain but seven months in which service is valid, are facts which in combination make out a case of want of prosecution, for which the court may, without abuse of discretion, order a dismissal, when both parties lived in the same county and came into frequent contact, notwithstanding a counter showing by the plaintiff that the failure to preseeute the action with greater diligence was his crippled condition due to such injuries and- his consequent inability to earn enough money to enable him to proceed with the litigation.</p>

<p>' Contract Between Real Estate Agents to Shake Commissions—Substituted Contract—Duration of Partnership Relation.—Two parties engaged in the business of buying and selling real estate entered into a contract which, after reciting that they had combined to effect the sale of a particular tract of land, and had secured or were securing for that purpose from the owners of the tract authorizations for its sale, contained an agreement for the equal division of whatever commission should be received for effecting the sale. They secured such authorizations, limited in duration, from the owners, each of whom contemplated a sale of the tract to a county as a site for a public building. They made the offer, but it was not accepted by the county. Subsequently, upon learning that another real estate agent was offering a rival tract for the same purpose, they and the latter entered into a tripartite agreement, which referred to the former contract, and provided that the party who had been, the agent for the rival tract should abandon his rival offer and assist in making a sale to the county of the other tract, and that the commissions received from such sale should be divided between them in equal one-third shares. Held, that the second contract was a complete substitute for the first, and that by the terms of both contracts reasonably construed, the copartnerships, or whatever the arrangements between the parties were, were to he circumscribed by the authorizations then made or to be made,—not to others which might be given under a different employment in the future.</p> <p>Id.—Dissolution op Partnership Relation by Consent—Abandonment.—The relationship created between the parties to the latter contract, even if one of partnership, could be and was dissolved by the expressed will of the partners and their abandonment of the transaction by common consent.</p> <p>Id.—Independent Sale by Agent Apter Abandonment op Prior Partnership Agreement.—After such latter contract had been abrogated and abandoned in good faith, one of the parties to the original contract was entitled to negotiate independently for the sale of the property contemplated by the original contract, and was not accountable to the other for a share of the commissions realized from the sale.</p>

<p>Appeal from Judgment—Time for Taking.—An appeal from a judgment taken more than six months after its entry is too. late and will not be considered.</p> <p>Practice—Evidence—Failure to Pass upon Reserved Rulings.—The practice of deciding a ease without in terms declaring upon reserved rulings touching the admissibility of evidence is to be reprobated and deplored. In some eases it may work substantial injustice to a litigant, and where it can be shown that such a result follows, the error is of sufficient gravity to call for a reversal.</p> <p>Street Assessment—Stipulation as to Evidence—Failure to Rule upon Objections—Unpre judicial Irregularity.-—In this action for the annulment of certain street assessment proceedings, which was tried upon a stipulated statement of the evidence containing numerous objections by the plaintiffs to its admissibility, which involved the consideration of questions of law touching the legality and regularity of the assessment proceedings, and which questions of law were resolved against the plaintiffs’ contentions in the conclusions of law which the court made determining that the assessments constituted valid liens against the plaintiffs’ property, it is held, -that in reaching such conclusion, the court must of necessity have overruled plaintiffs’ objections to the introduction of such record evidence, and that its failure to formally pass upon the specific objections raised by the plaintiffs was without prejudice to them, as all of the evidence which either party could have introduced upon any of the issues was introduced.</p> <p>Id.—Stipulation Embracing All op Evidence—Findings Unnecessary —Conclusion op Law.—In such action, where the stipulation embraces all of the evidence, specific findings upon that evidence are not necessary. The conclusion of law that the assessments were valid is itself a determination of the ultimate fact.</p> <p>Id.—Newspaper—Printing Establishment Situated on Boundary Line op Different Cities—Sufficient Publication of Notices.— Where the newspaper in which the notices of the street improvement were published was widely circulated in the city where the work was to be done, the mere fact that the building in which the paper was printed was situated on the boundary line between that city and an adjoining city, the presses being situated in the former and the offices and editorial room in the latter place, did not invalidate the publications of the notices.</p> <p>Id.—Award of Contract—Three-fourths Vote of Trustees—Approval by President.—An award of the contract for the work, made by a three-fourths vote of the board of trustees, is not required to contain the approval of the president of the board.</p> <p>Id.—Resolution of Award—Certificate of City Clerk Unnecessary. The Street Improvement Law does not require that the resolution of award should bear the certificate of the city clerk. The validity of street improvement proceedings, unless some particular form of proof is made mandatory by law, does not depend upon whether or not proof was made a matter of record, .but upon the fact that due notices and awards were in fact properly made.</p> <p>Id.—Extensions of Time for Work—Certification of City Clerk Unnecessary.—Extensions of time for doing the work awarded by the trustees are not rendered inoperative by the failure of the city clerk to certify them, notwithstanding the resolutions granting the extensions provided that “the city clerk shall certify to the passage of this resolution, and shall thereupon notify the street superintendent of the said extension of time.”</p> <p>Id.—Sustaining Appeal to City Council—Completion of Work in Time Ordered.—Where upon appeal to the city council it was decreed that the work had not been performed in accordance with the requirements of the contract, and further work was ordered to be done within a fixed time, and it was so done, the work must be deemed to have been completed within the time limited by the contract and its legal extensions.</p> <p>Id.—Demand for Payment After Assignment by Contractor.—A demand for the payment of the assessment, is not invalidated because made by the original contractor after he had made an assignment thereof.</p> <p>Id.—Method of Assessment After Sustaining Appeal.—After an appeal from the acceptance of street work has been sustained by the city council, and thereafter the work has been completed to its satisfaction and according to its order, the assessment therefor may be made by the proper reissue by the superintendent of streets of the old assessment, diagram, and warrant.</p> <p>Id.—Provisions of Specifications not Invalidating Contract.—The contract for the street work is not invalidated because the specifications contains a provision requiring the contractor “to dig all stake holes and preserve all stakes for the lines, levels, or measurements of the work in their proper places, until authorized to remove them by the city engineer”; or a like provision declaring that the contractor “shall not disturb any monuments or stakes until ordered to do so by the engineer,” or a provision that “all loss or damage arising from any unforseen obstruction or difficulty which may be encountered in the prosecution of the work, or from the action of the elements, shall be sustained by the contractor.”</p> <p>Id.—Description in Assessment—Reference to Diagram.—Hewes v. Seis, 40 Cal. 261, followed, to the effect that the description in the assessment may be helped out by a reference to the attached diagram, and that its sufficiency is to be tested by a construction of both documents. On the authority of that ease the description in the present case is held sufficient.</p> <p>Id.—Property Owners cannot Take More Than One Appeal to City Council.—Where an appeal by disaffected property owners to- the board of trustees against an acceptance of the work is sustained, and the contractor is ordered to and does further specified work in accordance with the contract, to the satisfaction of the board, and the work is then accepted by it, the trustees have no jurisdiction to entertain another appeal by the property owners against the acceptance.</p>

<p>Water-rights—Unanswered Cross-complaint Setting Up Same Matters as Answer—Trial—Findings on All Issues—Allegations of Cross-complaint not Admitted—Appeal.—In an action by a riparian proprietor to determine conflicting claims to the waters of a stream, a cross-complaint which merely restates the affirmative allegations of the answer presents no new issues; and if the plaintiff fails to answer it, and the parties go to- trial on the issues thus framed, and the trial is had on the theory that all the facts stated in the cross-complaint had been put in issue, and the findings completely cover every fact presented thereby, the defendant’s objection that the allegations of the cross-complaint were admitted by the failure to deny the same cannot be successfully urged on appeal.</p> <p>Id.—Construction of Findings—Extent.of Right of Diversion—Prescription.—The finding in this action that the defendant has not and never had the right to divert from the stream at any time any greater quantity of water than 281 cubic feet per -second, is held not to be contradictory of other findings, which while stating that the defendant had occasionally diverted a larger quantity of water, failed to- show that he had acquired a prescriptive right to divert the excess.</p> <p>Id.—Title to Water by Prescription—-Adverse Use—Claim of Right. A prescriptive right to water from a stream cannot be obtained against a riparian owner unless the use of the water is adverse and under claim of right.</p> <p>Id.—Beneficial Use Must be Made of Water-—Applying Excessive Quantity to Land.—No prescriptive right to water diverted from a stream can be acquired, unless beneficial use is made of the water, no matter for what length of time the diversion continues. Applying a greater quantity of water to land than is sufficient, does not constitute an application of the excess to beneficial use.</p> <p>Id.—Finding of Acquisition of Prescriptive Bight.—Although the actual taking of water has been adverse, in the sense that it has been hostile, to the riparian owner, it is necessary that a finding of the acquisition of a prescriptive right thereto should find that the water was actually devoted to a beneficial use, that such use continued for five years, and that it was uninterrupted for that period. h Id.—Claim of Bight to Divert.—A mere claim of a right to divert water cannot establish a prescriptive title.</p> <p>Id.—Appropriation for Public Use—Extent of Adverse Claim Established by Initial Proceedings—Future Use.—An appropriator of water to a public use, by beginning his adverse possession of the water he actually takes and puts to such use, does not at once institute an effectual adverse claim to all that he in good faith intends to take or use in the future. The taking of water into a canal and allowing it to run to waste in the expectation that customers may be found who will use it at some future time does not constitute a present beneficial use of the wasted water, so as to initiate the period of prescription therefor.</p> <p>Id.—Bights Acquired by Appropriator Against Biparian Owner.—As to other appropriators under the code, the law may give the first appropriator a reasonable time for delivery of the water to those for whose use it was intended, but if this "be so, which is not decided, no such rule applies to a riparian owner. Such owner has a present vested right before the appropriation begins, and his right cannot be divested by the mere assertion of an intention to claim the water, nor by posting notices of appropriation or beginning work in pursuance thereof, nor even by the actual diversion for less than five years, with a view to a future public use, if the water is in the mean time wasted, or not applied to public or beneficial use.</p>

<p>Negligence ■— Defective Railroad Grossing — Collapse of Passing Vehicle—Reckless Driving—Defective Vehicle—Instructions— Inferences from Evidence.—In an action against a railroad company to recover damages for personal injuries suffered by a person while driving over the defendant’s tracks at its intersection with a highway as the result of the overturning and collapse of the vehicle in which she was riding, where the plaintiff claimed that the accident was the result of the defendant’s negligence in not properly maintaining the crossing and the approaches thereto, and. the defendant contended that it was the result either of reckless driving or of a defect in the vehicle, but having no eye witnesses either to the accident or to the condition of the vehicle, introduced evidence that many other people had driven across the tracks before and immediately after the accident without any difficulty in so doing, for the purpose of inferentially establishing its theory of the ease, it is entitled to have proper instructions given to the jury covering its theory of the ease, and the inferences legitimately arising from such evidence.</p> <p>Id.—Inferences to be Drawn from Evidence—Litigant Entitled to Instructions Covering.—A litigant is entitled to proper instructions bearing upon any legitimate inference which may be drawn from evidence given. He is not limited in this right to instructions addressed only to the positive evidence in the case. Inferences properly drawn are in many cases the only method of arriving at the truth.</p> <p>Id.—Erroneous Instructions—Person Biding in Vehicle not an Insurer of Its Soundness.—An instruction requested in such connection, as follows: “If some of the appliances by which the horses were hitched to the rig in question were defective, and as the result of such defect broke, thereby causing the horses to run away and the vehicle to be overturned, you must find for the defendant because such defect in said appliances and the running away of the horses were the direct and proximate cause of the accident,” is erroneous, because it would in effect make the plaintiff an insurer of the soundness of the vehicle. Neither plaintiff nor her driver were responsible for any defect in the vehicle, latent or otherwise, unless it was known or could have been known by the exercise of ordinary care.</p> <p>Id.—Horse-drawn Vehicle on Public Highway not Bequired to Carry Lights at Night.—A further requested instruction informing the jury that in determining “whether or not plaintiff exercised ordinary care you are to consider the circumstances surrounding the said plaintiff, in determining what amount of care should reasonably be expected of a person traveling along a road as she was. In this respect, you will take into consideration the fact that she was travel-, ing at night, the rate of speed at which she was traveling, the question of whether it was dark enough to make the use of lights on said vehicle a requisite of ordinary prudence, and the question of whether or not any lights were carried on said vehicle to show the condition of the road ahead,” is also erroneous, in that it specifically told the jury to consider whether “a requisite or ordinary prudence” required plaintiff to carry light sufficient to show the defective oondition. of the highway. No law imposes any such duty in the exercise of ordinary care upon the driver of a horse-drawn vehicle upon the public highway.</p>

<p>Specific Performance—Contract for Sale of Land—Payment of Purchase Price in Installments—Just and Reasonable Contract.— A provision in an executory contract for the sale of land that the balance of the purchase price, amounting to fourteen thousand five hundred dollars, was to be paid by a promissory note executed by the purchaser to the seller payable in installments of at least one hundred dollars per month or more at the option of the purchaser, with interest at the rate of seven per cent per annum, said note to be secured by a first mortgage on the property agreed to be sold, is properly construed as, calling for a payment upon the principal sum of the indebtedness of not less than one hundred dollars a month exclusive of interest. The terms of such contract, and the method of paying the deferred purchase price, the whole of which was admitted to be adequate, are not so unjust or unreasonable as to the seller as to prevent the specific performance of the contract against him.</p> <p>Id.—Mortgage Securing Purchase Price—All Terms Need not be Set Forth in Contract.—There is no principle of equity requiring all of the terms and conditions of the mortgage to be given to be set forth in such contract. The usual and reasonable terms found in such mortgages are, in contemplation of the parties, a part of such contract. The contract in question clearly evinces what those terms are to be.</p> <p>Id.—Time for Payment of Interest—Customary Method Implied.— While such contract does not definitely state whether the interest is to be paid monthly or annually, it must be deemed that in contemplation of the parties the interest would be paid as is customary in contracts of that kind.</p>

<p>Agent to Sell Real Estate—Parol Contract of Employment—Sale of Principal’s Land—Concealment of Real Ownership—Right to Commissions.—A person employed under an oral contract to act as agent for Ms employer iu making sales of land belonging to third persons, is entitled to recover his stipulated commissions for effecting a sale of laud actually belonging to Ms principal, if the title thereto stood in the name of a stranger, and the agent did not know or was not advised of the real ownership.</p> <p>Id.—Statute of Frauds—Estoppel to Assert Invalidity of Contract. Under such circumstances, the employer, by Ms deliberate omission or unintentional neglect to advise the agent that he was the owner of the land, is estopped to claim that the contract, resting as it did in parol, was void under the statute of frauds, so far as it applied to sales of Ms own land.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of Fresno County.</p> <p>The facts are stated in the above syllabus.</p>

<p>APPLICATION for a Writ of Mandate directed to the Board of Election Commissioners of the City of Oakland.</p> <p>The facts are stated in the opinion of the court.</p> <p>Austin Lewis, R. M. Royce, and V. W. Lathrop, for Petitioner.</p>

APPEALS from judgments of the Superior Court of Yolo County and from orders refusing a new trial. N. A. Hawkins. Judge. The facts are stated in the opinion of the court. Pemberton & Pemberton, and J. 0. Davis, for Defendants and Appellants. J. A. Elston, and Black & Clark, for Respondents Elmer E. Nichols and Intervener, First National Bank of Berkeley.

<p>Negligence—Fall op Elevator—Pleading—General Allegation of Negligent Operation.—In an action to recover damages for personal injuries sustained by the plaintiff as the result of the fall of an elevator while she was being carried therein as a passenger, it is not essential to a cause of action for negligence in failing to properly operate the elevator that the particulars in which there was a failure to do so should be alleged. It is sufficient to allege that the fall was occasioned through the negligence of the defendant in failing to operate it and consequent injury to the plaintiff.</p> <p>Id.—Negligence—How Pleaded.—Negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury.</p> <p>Id.—Evidence—Injuries Result of Fall of Elevator.—In this action the evidence is held sufficient to show that the injuries complained of were caused by the fall or jar of the elevator, and not by the action of fellow passengers in trampling upon the plaintiff in escaping from the elevator after it had fallen and while she was lying on the floor.</p> <p>Id.—Overcrowding of Elevator—Evidence Admissible Under General Allegation—Damages Resulting from Trampling of Other Passengers.—Under the general allegation of negligence in the operation of the elevator and consequent injury, the plaintiff was entitled to show that the particular act of negligence consisted in the attempt of the operator to run it when it was overcrowded and overweighted with passengers, and to recover, as the proximate result of such negligent act, for personal injuries sustained by her in being trampled on by her fellow passengers in their frantic rush and struggle to leave the elevator at the end of the fall.</p> <p>Id.—Intervening Act of Third Persons—Causal Connection Between Negligent Act and Injury not Interrupted.—Such intervening act of the crowd of passengers would not break the causal connection between the negligent act of operating the elevator in a crowded condition and the injuries sustained by the plaintiff, as such intervening act was one which might have been foreseen as likely or probable to occur as the result of the original negligence.</p> <p>Id.—Operator of Passenger Elevator a Common Carrier of Passengers—Extent of Duty to Passengers.—A person or a corporation operating passenger elevators are to be treated as common carriers of passengers, and the same duties and responsibilities rest on them as to care and diligence as on the carriers of passengers by stage coach or railway; though not insurers of the absolute safety of passengers, they are bound to the utmost care and diligence of very cautious persons as 'far as human care and foresight can go1 and are responsible for injuries occasioned by the slightest neglect against which human care and foresight might have guarded.</p> <p>Id.—Proprietor oe Department Store—Not a Carrier op Passengers Without Reward.—The proprietor of a department store, who operates an elevator therein to carry customers or prospective customers from one floor of the store to another for the purposes of trade, is not a carrier of passengers without reward, so as to limit his duty to the use of ordinary care and diligence for their safe carriage.</p> <p>New Trial—Newly Discovered Evidence—Lack op Diligence.—A motion for a new trial, based on the ground of newly discovered evidence, is properly denied, where the moving party was in possession of information long prior to the trial whereby in the exercise of ordinary diligence it could have obtained the testimony of the nonresident witnesses in question, and had actually obtained from such persons full information as to the matters they would testify to, several days before the trial was finished, and omitted to ask for a continuance until their testimony could be procured.</p>

<p>Water-bights—Quieting Title—Ditch Constructed Over Government Lands—Vested Possessory Title—Findings.—In an action by a public 'service corporation, engaged in the rental, distribution, and sale of water, to quiet its title to certain water and water-rights and a ditch through which the water was carried, a finding in favor of the plaintiff’s ownership is sufficiently supported by evidence that plaintiff’s predecessor in interest, a corporation organized for the purpose “of ditching and conveying water for mining and other purposes,” years before the defendants’ predecessors had acquired title to their lands, with actual appropriation and user, had constructed the ditch in question over government lands, and was carrying water through it, originally for mining purposes, and subsequently for purposes of irrigation and domestic use. The rights of plaintiff’s predecessor having been acquired over government lands before their sale in private ownership, gave a vested possessory title under the act of Congress of 1866 and required no further or other record title for their support.</p> <p>Id.—Defective Descriptions in Mesne Conveyances—Other Sufficient Evidence of Title.—The defendants cannot question the sufficiency of the evidence to support such finding, on the ground that the descriptions in the mesne conveyances from the plaintiff’s predecessors in interest were so defective as really to convey nothing, where the evidence established without conflict that all of the properties and rights of such predecessors had vested in the plaintiff without objection by any of the grantors; that taxes upon these properties had been paid by the plaintiff and its predecessors for more than five years previous to the commencement of the action, and that there was upon the part of the defendants a recognition of plaintiff’s rights, in that they paid for the use of the ditch and the water taken therefrom a sum of money seasonably, and, in addition, kept the ditch in repair.</p> <p>Id.—Appropriation of Water for Useful Purpose—Change of Use from Purposes of Mining to Irrigation.—A corporation authorized by its articles of incorporation to use water for mining and “other purposes of said corporation,” may change the use of water appropriated by it for a useful purpose from sale for mining purposes to sale for purposes of irrigation and domestic use.</p>

<p>Lease—Option op Purchase—Conditions Precedent—Time por Exercise op Option.—A lease for ten years at a specified rental payable in monthly installments in advance, granted to the lessees an option to purchase the demised premises on certain terms if exercised by them at certain specified early periods during the leasehold term, and further provided for the exercise by them of a final option right (being the fourth option clause in the lease) as follows: “And in ease the party of the second part shall not exercise its right and option to purchase said land within two years from date hereof, then and in that event such right and option to purchase shall absolutely determine and be null and void except that the party of the second part, after having paid the rent on said property for the term of ten years shall then have the right and option to purchase said property for the price of $600 per acre.” .Held, that the exercise of the last option was not required to be made on the very date for the payment of the last installment of the monthly rental, but might be made at a subsequent time within the term of the lease.</p> <p>Id.—Meaning op Word “Then.”—While the word “then” may be used as an adverb of time and in a chronological sense fix a time limit, so also it may be used in a sequential sense meaning “in that event” or “in such case.” It is used in the latter sense in such optional clause.</p> <p>To.—Option Founded on Consideration—Payment of Bent a Consideration.—Such optional right is not a mere offer without consideration of the privilege of purchasing the property within a specified time which might have been withdrawn by the lessor at any time before acceptance. Here there was a valuable consideration moving from the lessees to the lessor. The payment by the lessees of rent for the full term was the consideration for their irrevocable right to purchase the leased premises at the specified price if they should elect to do so.</p> <p>Id.—Notice of Acceptance of Option—Creation of Executory Contract of Purchase and Sale.—Upon the election by the lessees to exercise the right of purchase, according to the terms in which it was offered, all that was necessary on their part to do was to give notice in due time of their acceptance of the terms. When this was done what was before an option right became an executory contract for the sale and purchase of the property.</p> <p>Id.—Unqualified Acceptance—Unauthorized Demands in Deference to Performance of Contract.—An absolute and unqualified written acceptance of the option according to its terms, was not rendered nugatory merely because it contained, in a subsequent and disconnected paragraph, demands on the lessor, not required of him or provided for in the option contract, and which had reference solely to the manner in which the executory contract of sale should be carried out after it was created by the acceptance that was made, as for instance, that the lessor should furnish a certificate of title and deposit a deed of the premises in escrow with some bank.</p> <p>Id.—Payment of Purchase Price not Necessary to Acceptance of Option.—In order to constitute an acceptance, payment of the purchase price of the land was not required to be made or tendered when the option right was exercised. Payment would be essential before the lessees would be entitled to a conveyance of the land, but that is a matter pertaining to the performance of the contract of purchase and sale which had been created by the acceptance.</p> <p>Id.—Bights and Obligations of Parties After Acceptance—Performance of Dependent Covenants—Specific Performance.—In the absence of anything in the contract itself the obligations of the parties, after acceptance, in the performance of the contract, is governed by the law applying generally to bilateral contracts for the purchase and sale of property under which the agreement or covenant of the vendor to convey and the vendee to pay the purchase price are considered mutual and dependent covenants and are to be performed contemporaneously by the respective parties. Bach party must perform his part in carrying out the contract and do so within a reasonable time after the contract is created. As the option clause did not provide otherwise, the lessees were not bound to make payment of the purchase price until the lessor was prepared to make them a deed conveying a good title to the premises. Of course, before the right of specific performance may be asserted, the party invoking it must have performed or offered .to perform on his part.</p> <p>Id.—Offer of Payment—Bepudiation by Lessors—Action to Oust Lessees—Tender in Pleadings by Lessees—Offer to Pay Into Court—Bight to Specific Performance.—A seasonable offer by the lessees to pay for the land on delivery of a deed by the lessors, notwithstanding it was accompanied by conditions which were not provided for in the option and which they had no right to exact, was a good offer of payment, if the conditions were not objected to by the lessors, they having ample opportunity to do so; and if thereafter, and while the lessees were not in default, the lessors repudiated the contract and brought an action to oust the lessees from the possession of the land, the latter by tendering the purchase price in their cross-complaint in the action and offering to pay it into court, became entitled to a specific performance of the contract.</p>

<p>APPEAL from an order of the Superior Court of Riverside County refusing to set aside an order for the sale of lands belonging to the estate of a deceased person. F. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank Karr, A. W. Ashburn, Jr., and W. R. Millar, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>T. T. C. Gregory, Theodore W. Chester, and C. J. Goodell, for Appellants</p>

<p>Landlord and Tenant—Liability for Collapse op Leased Building as Result of Excavations on Adjoining Lot.—In the absence of an express covenant by the lessor to uphold or keep the demised premises in repair or in a habitable condition, the lessor of a building used by the lessee for a lodging-house is not liable for injuries to the person or property of the lessee, occasioned by the collapse of the building as the result of excavations made on the adjoining lot by the owner thereof, notwithstanding the lessor was notified of the adjoining owner’s intention to make the excavations, as provided by section 832 of the Civil Code, and neglected to do anything to shore up the building.</p> <p>Id.—Duty op Landlord to Tenant With Respect to Protecting Building Against Adjoining Excavations.—There is nothing in section 832 of the Civil Code which casts any duty upon the owner of. a building with reference to his tenants, when the proprietor of adjoining property begins to excavate for building purposes. If the tenant, seeing the imminent danger from the excavation, decides to remain and run the risk of injury, he may not complain, because the owner of the building failed to do something which he was not required to do either by the statute or by his contract with the tenant.</p> <p>Id.—Lessor not Liable for Maintenance of Nuisance.—Under such circumstances, liability cannot be imposed on the lessor on the theory of the maintenance of a nuisance.</p> <p>Id.—Covenant op Quiet Enjoyment—Collapse op Building not a Breach.—The collapse of the building under such circumstances is not a breach of the implied covenant for quiet enjoyment. That covenant is measured by the obligation of the landlord toward the tenant under the lease, and if not compelled by the lease or statute to reinforce the wall of his building, no implied covenant for quiet enjoyment could compel him to do so.</p> <p>Id.—Covenant Does not Secure Lessee Against Acts op Strangers. The general rule is that an express or implied covenant for quiet possession secures the lessee against acts or hindrances of the lessor and persons deriving their title through him, or from a paramount title, but not from the acts of strangers.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Statute of Limitations—Action to Establish Trust—Fraudulent Probate Sale—Purchase by Administrator—Complaint Showing Cause of Action Barred.—A demurrer to a complaint based upon the statute of limitations is properly sustained in an action by the heirs of a deceased person to establish a trust in real property formerly belonging to his estate, for the allege® fraud of the administrator in so conducting a probate sale of the property as to shut out competitive bidding, and his indirect purchase of it for his own benefit at less than its real value, where the action was commenced more than fourteen years after the sale took place and more than thirteen years after the deed to the administrator was recorded, and the complaint fails to show when the plaintiffs dig-covered the alleged fraud, or to negative the presumption that they were sui juris at a time long enough prior to the filing of the complaint to allow the statute of limitations to operate.</p> <p>Id—Fraud of Guardian—Laches of Beneficiaries After Beaching Majority.—The fact that the administrator had also been the guardian of the plaintiffs, did not justify them, after coming of age, to shut their eyes to the fraud, if any had been committed.</p> <p>Id.—Fraud Committed More Than Three Years Before Commencement of Action.—Where a complaint fails to state the time of the discovery of a fraud committed more than three years before the commencement of the action a demurrer based upon the statute of limitations will lie.</p> <p>Id.—Involuntary Trust—Setting Statute in Motion—Bepudiation not Necessary.—By his conduct the administrator became a trustee of an involuntary trust, and it was not necessary for him to repudiate the trust in order that the statute should begin to run.</p>

John Gr. Covert, Judge presiding at trial; J. A. Allen, Judge presiding on motion for new trial. The facts are stated in the opinion of the court. H. Scott Jacobs, and John G. Covert, for Defendants, and Appellants on Appeal from Order; for Defendants and Respondents on Appeal from Judgment. Scarborough & Bowen, for Plaintiff and Respondent on Appeal from Order; and for Plaintiff and Appellant on Appeal from Judgment.

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County, from an order denying a motion for new trial, from an order denying an application for change of judges, from an order striking out portions of a cross-complaint, and from an order denying a motion to eliminate part of the certificate to the engrossed statement on appeal. George E. Church, Judge presiding. The facts are stated in the opinion of the court.

<p>Appeal from Order Made After Judgment—Stay of Judgment.— Except in the ease of an appeal from an order refusing a new trial, the judgment is not stayed by an appeal from an order made after judgment and by the filing of a bond.</p> <p>Id.—Supersedeas—Unauthorized Appearance of Attorney at Trial —Insufficient Showing for Stay.—Admitting that the supreme court has inherent power, under proper circumstances, to stay by supersedeas the enforcement of a judgment against a defendant pending his appeal from an order refusing to set the judgment aside, it will refuse to do so, when the application for the stay is based solely on the fact that the attorney who appeared for him on the trial was not authorized so to do and that the trial of the action and the entry of judgment were had without his knowledge, if there is no denial made that he was duly served with summons or showing that would excuse his failure to appear at the trial.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Leovy & Leovy, George J. Leovy, and Thomas M. Leovy, for Appellant.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Yolo County. N. W. Hawkins, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>James P. Clark, C. A. Post, and H. S. Clewett, for Appellants.</p>

<p>Reclamation District—New Work—Necessity for Adoption of Definite Plan.—The reclamation law contemplates the adoption by the trustees of the reclamation district of a clear and definite plan of all new work embraced in the original and other previous plans already filed, before any assessment is levied therefor, so that all concerned, including the landowners who pay the tax, may have means of ascertaining the specific purpose of the assessment, the real value of the proposed work, and the benefit that will be derived therefrom.</p> <p>Id.—Modification of Original Plan—Report of Engineer—Sufficiency of Specifications and Estimates.—Where a modification of the original plan of reclamation has been adopted by the board of directors of a reclamation district, the report of the engineer of the district, framed in conformity therewith and specifying the work necessary to be done, is sufficient, where it discusses and describes with elaborate care the additions to be made to the levee system, and gives detailed specifications of the proposed new levee work, with separate estimates of cost of the different branches of the work, followed by a recapitulation in which the amount of work done and to be done is segregated and separately stated, the cost of the amount done being segregated from the cost of the amount to be done.</p> <p>Id.—Construction of Report—Work for Which Expense had Been Incurred.—In the construction of such report, a statement therein under the designation of “Improvement of old Levees and Construction of new Levees,” that “a portion of said work hereinbefore recommended has been done at a cost of $24,248.25 in excess of the estimates contained in the original plans of reclamation; that to complete said work will require the further sum of $44,725.76,” is to be interpreted and its sufficiency determined in accordance with the context, and so construed it is held sufficient as a statement of the particular work done for which this expense had been incurred.</p> <p>Id.—Performance of New Work on Old Levees—Description of Levees.—There is nothing in the law requiring the report and the adopted plans by metes and bounds to specify where the actual work of raising a levee has been performed. The location and dimension of the original levees being specified, as well as the dimensions and locations of the raised and strengthened levee, inspection upon the ground will fully answer the purpose of showing where and to what extent the new and unpaid for work has been done.</p> <p>Id.—Modifications of Old Plans not a New Plan of Reclamation. Where the board of directors of the district, on a specified date, adopted a modification of the original plan by increasing the size and dimensions of an original levee and subsequently adopted another modification calling for the construction of a new levee, each of such modifications did not constitute a wholly separate, distinct, and independent plan of reclamation. The general plan still continued in its entirety.</p> <p>Id.—Statement of Work Done or to be Done Under Modified Plans. The statute does not require a statement of the work done or to be done under each of the modified plans of reclamation, but only a statement of the cost of the work necessary for the reclamation of the land in pursuance of any of the plans. If the original assessment is insufficient and further assessments are thus from time to time required, the law (Pol. Code, sees. 3455, 3459) exacts merely a statement of the work done or to be done and its estimated cost.</p> <p>Id.-—Aggregate Estimate of Cost of Separate Phases of Work.— Section 3455 of the Political Code, by not requiring the contrary, permits an. aggregate estimate of the cost of separate phases of the reclamation work; consequently an assessment will not be held invalid merely because an aggregate estimate is made for the acquisition of the rights of way of all levees and another aggregate estimate for the construction thereof, without a separate estimate of the cost of acquiring the right of way for a particular proposed new levee, nor for the construction of the levee itself. If an assessment could ever be overthrown for this reason, it would be in a ease where 'such an estimate manifestly was injurious to the property owner, which is not the ease here presented.</p>

<p>Accident Insurance—^Bodily Injuries Effected Through External, Violent, and Accidental Means—Findings—Killing Invited by Insured.—In an action on a policy of accident insurance insuring ■ ■ “against bodily injuries not intentionally self-inflicted . . . and effected directly and independently of all other causes through external, violent and accidental means,” a finding that the insured sustained bodily injuries, resulting in his death, from a bullet fired from a revolver in the handsi of a third person, and that the death did not “result directly and independently of all other causes from bodily injuries effected through external, violent and accidental means” nor from “accidental causes,” is a finding of fact, and on appeal from a judgment in favor of the insurer, in the absence of the evidence, must be construed to mean that the insured was killed in an encounter with deadly weapons, which he had himself invited and brought on, and thus voluntarily assumed the risk of death.</p> <p>Id.—Beneficiary must Prove Injury Resulted from Accident.—The beneficiary under such policy was bound to affirmatively establish that the death of the insured resulted from accident. It was not' incumbent on the defendant to negative accident.</p> <p>Id.—Construction of Findings—Support of Judgment.—Findings made by the trial court must be given a liberal construction in support of the judgment, and are, if possible, to be reconciled so as to prevent any conflict upon material points.</p> <p>Id.—Accident Defined.—The term “accident” means “a casualty”— something out of the usual course of events, and which happens suddenly and unexpectedly, and without any design on the part of the person injured.</p> <p>Id.—Killing Resulting from Firearm Discharged by Another— Inference of Accident may be Rebutted.—The fact that the insured was killed by a bullet from a firearm discharged by another would, standing alone, justify, if not require, the inference that the killing was, as to the insured, accidental. But this is an inference which may be overcome by other evidence.</p>

<p>Corporation—Constitutional Law—License-tax—Corporation Doing Interstate and Intrastate Business.—Writ of Mandate denied on the authority of Albert Pick fy Co. v. Jordan, ante, p. 1.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Frank G. Finlayson, Judge.</p> <p>The facts are similar to those stated in Wheatley v. San Pedro, Los Angeles and Salt Lake Badroad Co., ante, p. 505.</p>