Volume 173 — California Reports

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

<p>Pleading—Allegation op Ownership—Setting Out Chain op Title. As a general rule, where a pleader sets forth his chain of title and upon that chain pleads ownership, the allegation of ownership becomes a mere conclusion of law.</p> <p>Easements—Single Ownership op Several Tracts—Conveyance op Separate Tract.—Where the owner of one heritage consisting of several parts has so adapted them that one derives a benefit from the other, when he sells one of them without making mention of the incidental burdens of one in respect to the other, an implied understanding arises that the burdens and correlative advantages shall continue as before the separation of the title.</p> <p>Id.—Injunction — Right to Water Supply — Plea op Plaintiff's Ownership—Trial op Issue as to Ownership.—In this action to enjoin the defendants from interfering with an asserted easement to have a certain supply of water flow from the lands of defendants to and upon plaintiff’s property and for damages for the cutting of water-pipes, a distinct allegation in the complaint of the plaintiff’s ownership of the easement, standing alone, and on which issue was joined and the trial had, is held to be a sufficient averment of the ultimate fact that the plaintiff owned the easement, and not a mere conclusion from the plea of his chain of title. This being the issue tried, the defendants were not misled, under the circumstances of the case, even if it be conceded that the creation of the easement was alleged in one way and proven in another.</p> <p>Id.—Quasi Easements—Severance of Tracts Under Terms of Will. Quasi ea_sements which a testator has apportioned to various tracts during his lifetime, ripen into easements in favor of or burdens upon such parcels of land at their severance under the terms of such testator’s will.</p> <p>Id.—Transfer of Land Passes Easements—Devise.—Section 1104 of ' the Civil Code, providing that a “transfer” of real property passes all easements attached thereto, is applicable in the matter of the creation of easements to a devise of land as well as to a transfer inter vinos. As there used, the word “transfer” should be given a general rather than a technical meaning.</p> <p>Id.—Intention to Convey Easement.—The general rule is that the doctrine of implied easements is not limited to cases of direct conveyance by deed of the common owner, but applies also to property devised by will to different parties. The intention, in view of all of the circumstances, is the cardinal subject for inquiry.</p> <p>Id.—Unity of Title—Extinguishment of Easement.—In order that unity of title to two estates should extinguish an existing easement, the ownership of the two estates should be coextensive, equal in validity, quality, and all other characteristics.</p> <p>Id.—Landlord and Tenant — Void Attornment to Stranger.—The attornment of a tenant to a stranger, made without the knowledge of the landlord, is void.</p> <p>Id.—Tenant’s Use of Water After Void Attornment—Adverse Possession—Statute of Limitations.—The use and possession of the water by a tenant of the owner of the dominant estate, after an attornment by such tenant to the owner of the servient estate which was void because made without the knowledge of the landlord, was the use and possession of the landlord, and the statute of limitations did not begin to run against the right of the owner of the dominant estate until the physical assertion of an adverse right by the owner of the servient estate.</p> <p>Id.—Damage Resulting from Cutting Off Water—Depreciation of Rental Value—Amount Recoverable—Pleading.—In such action, damages due to the depreciation in the rental value of the dominant estate, although in excess of the amount specifically alleged in the complaint as having been suffered in that connection, may be awarded under the prayer for general damages and relief, so as to cover the damage accruing during the period between the filing of the complaint and the judgment.</p> <p>Id.—Measure op Damages—Reduction op Rental Value.—The damage resulting from cutting off the plaintiff’s water supply is properly measured by the reduction in the rental value of the dominant estate, where the evidence shows that the diminution in the amount of available water was the sole reason for the reduction of the rent. Id.—Evidence—Attempt to Vary Writing—Undisclosed Purpose op Question.—It is not error to sustain an objection to a question, apparently intended to add some oral terms to a written document, notwithstanding the evidence may have been admissible for a purpose which appeared neither in the form of the question nor in the argument of counsel at the time.</p> <p>Id.—Expenditures in Epport to Procure Another Water Supply.— Expenditures made by the owner of the dominant estate in an effort to procure another water supply are not proper elements of damages in such action, and the failure of the court to find on averments of the complaint in that connection is immaterial.</p>

<p>Quieting Title — Description of Property—Insufficiency—General Demurrer.—In an action to quiet title, a description in the complaint of the property in question as being “that real property situated in the city and county of San Francisco and in the counties of San Mateo and Santa Oruz and more particularly described as follows, to-wit: Bights of way, terminal lands, and all the property known as the ‘Ocean Shore Bailway Property,’ more particularly described in the public records of said City and County of San Francisco in Liber 62 of Mortgages, Page 29 et seq., and to which reference is hereby made for said description,” is insufficient, and vulnerable to attack by general demurrer. (Per Melvin, J., Lorigan, J., and Henshaw, J., concurred.)</p> <p>Id.—Sufficiency of Description.—A complaint in an action to quiet title must contain a pertinent description of the land in controversy.</p> <p>Id.—Corporation-—Failure to Pay License Tax—Forfeiture—Title to Property Vests in Trustees.—When a corporation has failed to pay its license tax and a forfeiture of its charter has been declared, it ceases to be a corporation, and the title to the property formerly owned by it vests in the former directors as trustees. Thereafter an action will not lie to quiet title to property on the theory that it is owned by the corporation.</p> <p>Id.—Stock Acquired After Dissolution — Equitable Interest in Assets—Stockholder cannot Maintain Action to Quiet Title Against Owner of Legal Title.—A purchaser of stock of a corporation after its dissolution becomes the owner, at most, of an equitable interest in the assets of the defunct corporation, and cannot maintain an action to quiet title thereto against the owner of the legal title. The refusal of such remedy to the owner of a merely equitable interest does not deprive him of property without due process of law. (Per Melvin, J., Lorigan, J., Henshaw, J., and Shaw, J., concurred.)</p> <p>Id.—Stockholder not of Becord—Cannot Maintain Action to Avoid Transfer by Trustees.—A purchaser of stock of a corporation after its dissolution could not become a stockholder of record, and cannot maintain an action to avoid an unauthorized or fraudulent transfer of corporate assets by the trustees of the defunct corporation. Only a stockholder of record may maintain such action. (Per Sloss, J., Shaw, J., Lawlor, J., and Angellotti, C. J., concurred.)</p>

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, and Andrew F. Burke, for Appellant.</p>

<p>Mutual Water Company—Stockholder’s Right to Receive Water— Real Property—Action to Determine Conflicting Claims.—The right of a stockholder in a mutual water company, under section 324 of the Civil Code, in virtue of his ownership of stock therein, to receive water to a specified quantity upon certain land, is real property, and conflicting claims affecting the same may be made the subject of an action under section 738 of the Code of Civil Procedure.</p> <p>Id.—Pleading—Application of Water Received for Use—Change of Cause of Action.—In an action by a stockholder in a mutual water company to enforce his alleged right to receive water, for use upon a tract of two hundred acres, sufficient in quantity to irrigate 160 acres thereof, without confining its use to any specific portion of the tract, it is not essential to the statement of a cause of action that the complaint should aver the particular place upon which the defendant refused to allow the water to be used, and the fact that in the original complaint a specified forty acres described as such place was different from that described in an amended complaint, did not change the character of the cause of action or make a new 'action begun at the filing of the last complaint.</p>

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

<p>Quieting Title—Pleading by Dependant—Evidence—Title Based on Sale fob Municipal Taxes.—A defendant in an action to quiet title, who relies upon a title acquired under a sale for delinquent municipal taxes, may introduce in evidence, under a mere denial of the plaintiff’s title and without specifically pleading them, the ordinance regulating the assessment of property in the municipality, the certificate of sale for the delinquent taxes, and the tax deeds.</p> <p>Id.—Taxation—Void Certificate of Sale—Erroneous Statement of Time fob Issuance of Deed—Annulment of Subsequent Proceedings.—The failure of a certificate of sale for delinquent municipal taxes of the city of Bakersfield to correctly state the time “when the city will be entitled to a deed,” as was required by a city ordinance,—the' defect consisting in fixing the date one day too soon, by making it coincide with the date on which the right of redemption would expire,—renders the certificate void, and annuls the subsequent proceedings.</p> <p>Id.—Statutory Requirements as to Form of Deed.—Where the statute prescribes the particular form of tax deed, the form becomes substance, and must be strictly pursued, and the courts cannot inquire whether the required recitals are of material facts or otherwise.</p> <p>Id.—Quieting Title Against Defective Certifícate of Sale—Lapse of Period of Redemption.—In an action by the owner to quiet his title against a person claiming under such a defective certificate of sale, it is immaterial that several years elapsed after the expiration of the period of redemption and before the plaintiff commenced the action.</p> <p>Id.—Notice of Sale—Place of Sale Designated as “City Hall.”— Where a municipal ordinance of a city of the fifth class required notice of the sale of property for delinquent taxes to be published, and that the place of sale should be “at the City Hall,” a notice designating the “City Hall” as the place of sale, without further particularization, cannot be held indefinite or uncertain as matter of law.</p>

<p>Workmen’s Compensation Act—Consideration op Evidence by In-' dustrial Accident Commission — Stipulation op Facts.—Under section 24, subdivision b, of the Workmen’s Compensation Act, the Industrial Accident Commission, in making its award of compensation, is not limited to a consideration of the facts embodied in a stipulation of the parties, but may take other evidence and base its award thereon.</p> <p>Id.—Measure op Disability—Ability op Employee to Work.—The ability of a workman, after an accident, to do the exact work for which he had been employed at the time of the injury, is not the sole measure of disability. Under section 15, subdivision 2 [7], of the Workmen’s Compensation Act, in determining the percentages of permanent disability, account may be taken of the nature of the physical injury or disfigurement and the workman’s age.</p> <p>Id.—Conclusion op Commission on Percentage op Disability.—The conclusion of the Industrial Accident Commission on such matter is ,the determination of a question of fact, and is not subject to review by the courts unless palpably contrary to the undisputed evidence.</p> <p>Id.—Average Annual and Daily Earnings—“Days When Employed.” Under section 17a (1) of the Workmen’s Compensation Act, basing the annual earnings of an injured employee upon the average daily earnings “which he earned as such employee during the days when so employed,” the phrase the “days when so employed” refers to the number of days during which the employee was actually engaged in work, and not to the number of working days during which he might have worked or might have been expected to work.</p> <p>Id.—Findings op Commission.—The commission is not required to make specific findings upon probative matters. Findings of the ultimate facts in controversy are sufficient.</p> <p>Id.—Certiorari to Review Award—Rejection op Evidence.—On certiorari to review an award of the Industrial Accident Commission, alleged errors in the refusal of the commission to permit a witness to answer certain questions cannot be reviewed.</p>

<p>Vendor and Vendee—Shortage in Acreage—Agreement Adjusting Discrepancy—Consideration.—Where an agreement contains mutual covenants or promises running from the one to the other, each promise or covenant by one party is a consideration for the promise or covenant of the other, and therefore the agreement is not without a sufficient consideration.</p> <p>Id.—Price Determined by Acreage Conveyed—Deduction prom Mortgage on Account op Shortage.—Upon the sale of an undetermined area of land at a fixed price, by the acre and not in gross, the price to be paid is determined by the number of acres actually included in the tract conveyed. And if the grantee gives a mortgage for the balance of the purchase price, he is entitled to a deduction of the indebtedness to the extent that there is a shortage in the acreage.</p> <p>Id.—Description by Governmental Survey — Acreage Included in Survey—Evidence to Contradict.—Where the land is described by a governmental section, the purchaser is not conclusively bound by the official survey as to the number of acres included therein, but may offer evidence to contradict it in that respect.</p> <p>Id.—Vendee Entitled to Possession—Failure to Obtain Possession —Abatement of Price.—Where one makes an agreement of sale binding him to deliver possession to the purchaser, the latter is entitled to possession before being called upon to pay the price. He is not obliged to accept a mere paper title to the property and rely upon his success in an action for possession against the person holding adversely. If he gives a mortgage for the purchase price, he is entitled to an abatement upon the mortgage debt proportionate to the amount of the land of which he fails to obtain possession.</p> <p>Id.—Mortgage for Purchase of Land Held Adversely—Foreclosure —Adverse Holder Necessary Party.—In an action to foreclose such mortgage for an unpaid balance of the purchase price proportionate to the quantity of a part of the land the legal title to which passed by the deed but the possession of which was held adversely, the mortgagor is not entitled to a decree declaring the mortgage satisfied, nor the mortgagee to a foreclosure, until the adverse holder is made a party to the action, and a judicial determination is had as to the validity of his adverse claim.</p>

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

Paul W. Bennett, and Howard A. Peairs, Judges. The facts are stated in the opinion of the court. Frank McGowan, Frank Thunen, William M. Singer, and William Singer, Jr., for Appellants. Street & Street, and Charles Del Bondio, for Respondents.

APPLICATION originally made to the Supreme Court for a Writ of Certiorstri to review an award of the Industrial Accident Commission. The facts are stated in the opinion of the court.

APPLICATION originally made to the Supreme Court for a Writ of Review to annul an order of the Superior Court of the City and County of San Francisco for the assignment of a note and mortgage and subrogation to the rights of the mortgagee. The facts are stated in the opinion of the court. Paul A. McCarthy, R. H. Gillogley, and Alexander D. Keyes, for Petitioners.

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

APPEAL by the defendants from an order of the Superior Court of Shasta County setting aside a default and judgment, and an appeal by the plaintiff from such judgment. J. E. Barber, Judge. The facts are stated in the opinion of the court. Edward J. Linforth, for Appellants in Sac. No. 2284 and for Respondents in Sac. No. 2295.

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

<p>Partition of Land and Pumping Plant—Receiver not Authorized— Plaintiff not Disturbed in Possession or Use of Property.— In a suit for the partition of land, together with a well and pumping plant used' in connection therewith, in which a large number of persons are interested as tenants in common, the plaintiff is not entitled to an ex parte appointment of a receiver to take possession of the property and operate the pumping plant, where no tenant in common, is attempting to oust him or is in any way interfering with his common possession and use of the property, or otherwise endangering his rights.</p>

<p>Municipal Corporations—Ordinance—Declaration op Urgency When None Exists.—Where a municipal charter provides that no ordinance shall take effect until thirty days after its passage except certain ordinances which contain a statement of urgency, the effect of declaring an urgency when there is none is not to avoid the ordinance, but merely to postpone the taking effect thereof until the period of thirty days has elapsed.</p> <p>Appeal—Insufficient Notice to Clerk.—A notice to the clerk to prepare a record under section 953a of the Code of Civil Procedure, which states that the party giving the notice desires to appeal, but nowhere states that it does appeal, is ineffectual to constitute an appeal.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to fix the compensation of a director and trustee of a banking corporation. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title—Intervention—Parties not Interested in Original Controversy.—In an ordinary action to quiet title, a person claiming to be an owner of an undivided interest in the property, cannot intervene and bring in as defendants new parties between whom and the intervener a controversy existed, unless some party already before the court is interested in or will be affected by the determination of such controversy.</p> <p>Id.—Abatement — Pending Action — Dissimilarity of Parties.—A pending action cannot be pleaded in abatement of a subsequent action, where the actions were not between the same parties, and the parties did not occupy the same relative positions as plaintiff and defendant.</p> <p>Id.—Plaintiff Need not be in Possession.—The.owner of land does not have to be in possession to enable him to maintain an action to quiet title.</p> <p>Id.—Refusal to Order Commission to Take Testimony—Unreasonable Delay of Trial.—The refusal of the court, at the request of the defendant, to order a commission to take the testimony of the plaintiff, the granting of which would have worked an unreasonable delay in the trial of the case, is not erroneous, where the defendant made no showing of the materiality of the evidence expected to be obtained and that due diligence had been used to procure it.</p> <p>Id.—Right of Possession not Involved in Action—Jury Trial.— In an action simply to quiet title, by a plaintiff in possession, in which the judgment rendered in favor of the plaintiff made no mention of possession, the defendant was not entitled to a jury trial.</p>

<p>Irrigation District—Municipality Included Within—Assessments— Constitutional Law.—Under the present provisions of the state constitution, a municipality may be included within the boundaries of an irrigation district, and land within the territory of said municipality assessed for district purposes.</p> <p>Id.—Constitutional Grant of Power to Municipality to Acquire Waterworks.—Section 19 of article XI of the constitution, as amended in 1911, authorizing a municipality to acquire and operate works for supplying its inhabitants with water, did not destroy or impair the functions or autonomy of a previously existing irrigation district as to the territory of the municipality included within its boundaries.</p>

<p>San Francisco Police Pension Fund—Pension to Widow of Deceased Officer—Duty of Trustees—Charter.—Under the provisions of the charter of the city and county of San Francisco providing for a Police Relief and Pension Fund and its disposition, it is the duty of the board of trustees of such fund, upon an application being made to it for a pension by a widow of a police officer, to grant the application, where it is shown that such officer was injured while in the performance of his duty as a member of the police department, and died- as a result of such injury within one year from the date thereof.</p> <p>Id.—Powers of Board—Proof of Essential Facts.—The board of trustees of the Police Relief and Pension Fund of the city and county of San Francisco has no judicial power to finally determine any question of fact connected with an application for such a pension, and, where it is not satisfied with the evidence of the essential facts, may refuse to act until required to do so by the judgment of some tribunal invested with power to finally determine the controversy.</p>

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of Orange County denying an application for letters of administration on the estate of a deceased person, from a judgment admitting a will to probate, and from an order denying a motion for a new trial. Z. B. West, Judge. The facts are stated in the opinion of the court.

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

<p>Quieting Title—Water Bights—Issues—Power to Apportion Water. In an action to quiet title to a portion of the waters of a river, where defendant’s answer asserted an estate and interest therein, and also in the waters of a slough having its source in the river, under the issues thus presented the court had power to determine the proper division of the waters of the slough as well as those of the river.</p> <p>Id.—Pleading—Scope ot Belief—Answer.—A defendant by answering may enlarge the scope of the relief to any extent consistent with the pleadings and embraced within the issue.</p>

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

<p>Negligence—3?atient in Hospital—Burning op Body by Hot Applications—Evidence.—In an action against a hospital to recover for personal injuries to a patient alleged to have been caused through the negligence of defendant’s employees in allowing the plaintiff’s body to be burned by a hot-water bottle placed in her bed, after she had undergone a surgical operation and while she was unconscious from the effects of an anaesthetic, the evidence, although circumstantial, is sufficient to warrant the conclusion that the burns were inflicted while the patient was unconscious and under the exclusive care of the defendant’s nurses.</p> <p>Id.—Custom op Hospital in Begabd to Warming Beds—Evidence— Cboss-examination.—In such action, a medical witness called by the defendant, who had testified that there was no necessity for making hot applications to the patient, was properly cross-examined for the purpose of showing that such applications, as matter of fact, were generally used; and the nurse in charge of the injured patient, after testifying that no such applications had been used, was properly cross-examined upon the custom of the hospital with reference to warming beds.</p> <p>Id.—Bes Ipsa Loquitur—Accident to Unconscious Patient in Hospital.—The doctrine of res ipsa loquitur is applicable in such a ease in determining the hospital’s liability for negligence, and proof of the accident carried with it the presumption of negligence. This is so whether the liability be ascribed to the carelessness of experienced nurses or to the defendant’s negligence in selecting nurses who were not competent.</p>

<p>Guardian and Ward—Mother Unfit to Have Custody of Child— Evidence—Abandonment.—On an appeal by the mother of a minor girl from an order appointing as guardians of the child the persons with whom she had lived since her birth, the evidence is held to sustain the finding of the trial court that the mother was an unfit person to have the custody of the child, and that the child had been abandoned by the mother.</p> <p>Dx—AlFpeal—Conflict of Evidence—Findings of Trial Court.—In guardianship matters, it is the peculiar function of the trial court to pass upon the questions of fact in dispute upon which there is a conflict of testimony, and its conclusions thereon will not he interfered with on appeal.</p> <p>Id.—Welfare of Child—Comparative Merits of Life in Charitable Institution and With Individuals.—Where the mother’s application for guardianship disclosed the fact that she would be required to leave the child in the care of a charitable institution until such time as she might be able to support her, it was the duty of the trial court, under section 246 of the Civil Code, to weigh the comparative benefit to the child, in respect to her temporal, mental, and moral welfare, which might result from residence in an eleemosynary institution or a continuance of the life with the foster-parents. Id.—Juvenile Court—Finding That Child was not Abandoned—Subsequent Proceeding in Guardianship.—The decision of the judge of the juvenile court in a proceeding to have the child declared an abandoned child, that she was not an abandoned child, is not binding upon the superior court in a subsequent proceeding in guardianship.</p>

<p>Building Contract—Erection on Wrong Location—Excuse of Performance—Pleading.—A contractor for the erection of a building on a specified tract of land belonging to the owner, who erects it partly on such land and partly on an adjacent public street, cannot, in an action to foreclose a lien on the land, take advantage of an excuse for performance according to the terms of the contract, where his complaint declares on the theory of full performance. To render such excuse available to him, the complaint must aver both the failure of complete performance and the excuse.</p> <p>Td.—Contractor Must Bear Loss.—Where such mistake in the location of the building was in no way attributable to the owner, the contractor must bear the resulting loss.</p>

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

<p>Vendor and Vendee — Time as Essence of Contract — Default of Vendee—Forfeiture.—Where a contract for the sale of land, the purchase price of which was payable on a specified date, expressly provided that time was of the essence of the agreement, and that the failure of the vendee to perform should operate as a forfeiture of-all his rights, leaving installments of the price previously paid in •the possession of the vendor as liquidated damages, no affirmative act on the part of the vendor was necessary to place the vendee in default, and the failure of the vendee to pay within the time limited automatically terminated all of the vendor’s obligations in law and equity.</p> <p>Id.—Tender of Performance by Vendee—Bight to Recover Installments Paid—Land in Occupancy of Tenants at Will.—Under such contract, the vendee in order to be entitled to recover back installments of the purchase price paid, should have made a tender of the balance due and should have demanded performance by the vendor, and was not excused from so doing, on the theory that the vendor was not in a position to deliver possession of the land and was therefore in default, by the fact that at the time performance was due a part of the land was in the occupancy of tenants at will of the vendor.</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>Mastick & Partridge, J. W. Dignan, and H. F. Chadbourne, for Appellants.</p>

<p>Action Between Ship Owners — Dissatisfaction With Management — Appointment of Receiver — Superior Court Without Jurisdiction.—In an action in equity brought in the superior court by the owners of the minority interest in a ship against the owners of the majority interest for an accounting, the appointment of a receiver, and for an order decreeing the sale of the vessel and a ratable division of the proceeds, based upon differences existing between them as to the proper management of the ship, the court has no jurisdiction to appoint a receiver to take possession of the vessel for the purpose of operating and selling it, as the jurisdiction of the courts of the United States in admiralty is full and complete, under such circumstances; the state court is entitled, however, to retain jurisdiction of the action in so far as it addresses itself to the equitable consideration of settling accounts.</p> <p>Id.—Controversies Between Ship Owners—Jurisdiction—Construction of Section 964, Civil Code.—The provision of section 964 of the Civil Code that if a ship belongs to several persons not partners and they differ as to its use or repair, the controversy may be determined by any court of competent jurisdiction, is applicable to such cases as do not encroach upon admiralty jurisdiction.</p> <p>Id.—Ship Owners—Status of.—Part owners of ships are not partners merely by virtue of their ownership, but are tenants in common, and in order to constitute the relationship of partners a special contract is required.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. E. Coberly, B. A. Finch, and Scarborough & Bowen, for Appellant.</p>

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

<p>Building Contract—Abandonment of—Claim for Plumbing, Ventilating, and Heating—Finding Conclusive on Value of.—Where a party furnishing the plumbing, ventilating, and steam-heating to the general contractor under a building contract which was abandoned by the contractor, month by month presented its bills showing the reasonable value of the work performed and the materials furnished, and the claim of lien and complaint showed in accordance with the actual transaction between the plaintiff and the general contractor, that seventy-five per cent of the value of the labor done and material furnished were to be paid for each month, the estimates of these values by the terms of the contract to be adjudged by the architect, and being so adjudged by him, and the plaintiff accepting them uncomplainingly until the time of the trial, when he sought to recover twenty per cent more, not only than had been contracted for, but more than it had declared month by month was the value of its work and material, the court properly refused to award plaintiff the increased amount asked for.</p>

<p>Negligence—Destruction of Automobile by Street-car—Burden of Proof.—In an action for damages for the negligent destruction of an automobile by a street-car it is incumbent upon the plaintiff to show that the circumstances were such that the motorman had an opportunity to become conscious of the facts giving rise to his duty, and the reasonable opportunity to perform it, before the railway company can be held liable on the ground of negligence.</p> <p>Id.—Stalled Automobile—Damage by Street-car—Sufficiency of Evidence.—In this action the evidence is held sufficient to show that the automobile was stalled on defendant’s track because of the negligent condition in which the crossing over it was left by the defendant, that the motorman had knowledge of such condition, and was negligent in failing to so operate his car as to avoid the collision.</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>Estates of Deceased Persons — Succession to Estate of Grandparent by Blood—Bight of Adopted Child.—Under subdivision 1 of section 1386 of the Civil Code, an adopted child is entitled to succeed to the share in the estate of the father of his father by blood, that such father by blood would have succeeded to had he survived his own father.</p> <p>Id. — Adoption — Effect upon Bight of Inheritance — Matter of Statutory Begulation.—The rights of inheritance of an adopted child are affected by the adoption only in so far as the statutes expressly or by necessary implication affect them, and the mere establishment of the relation of parent and child between the adopting parent and the child, with all its consequent right and duties, affects only the relative rights of inheritance of the parties to the contract, the parents by blood, the adopting parents, and the child, and has no effect at all as to the rights of the child in so far as the ancestor or collateral kindred of its parents by blood are concerned.</p> <p>Id.—Scope of Statutes in This State.—The adoption statutes of this state do not purport to affect the relationship of any person other than that of the parents by blood, the adopting parents, and the child.</p>

<p>Public Work — Bond for Performance of Contract — Statute Inapplicable to Sewer Work in San Francisco—Charter.—The act of March 27, 1897 (Stats. 1897, p. 201), as amended by the act of May 1, 1911 (Stats. 1911, p. 1422), providing that every contractor to whom is awarded a contract for the execution or performance “of any building, excavating or other mechanical work for this state, or by any county, city and county, city, town, or district therein, shall, before entering upon the performance of such work,” file with the officers by whom the contract was awarded a bond to be approved by them, in a sum not less than one-half of the total amount payable by the terms of the contract, conditioned that if the contraetor fails to pay for any materials, supplies, work, or labor furnished in the matter, the sureties will pay the same, to an amount not exceeding the sum specified in the bond, provided a claim therefor be filed in the manner specified in the act, is not applicable to contracts for the doing of sewer work in the city and county of San Francisco, by reason of the provision of section 6 of article XI of the constitution which exempts, municipalities having freeholders’ charters from control by the legislature in “municipal affairs,” and of the provisions of article VI of the charter of such city and county which provides a complete system for the doing of sewer work therein.</p> <p>Id.—Constitutional Law—Street and Sewer Work in Municipalities— “Municipal Affairs” — Exemption from State Laws.— Street and sewer work in a municipality, and the making of contracts therefor on the part of the municipality are “municipal affairs” within the meaning of section 6 of article XI of the constitution, which makes freeholders’ charters of cities and towns absolutely controlling and free from impairment by general laws of the state, as to all “municipal affairs.”</p> <p>Id.—Bond for Sewer Work—Want of Consideration.—A bond in the form provided by said act, given by a contractor for sewer work in the city and county of San Francisco as a condition precedent to the doing of the work, is without, consideration and void.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County refusing to admit an alleged will to probate. P. F. Gosbey, 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>The facts are stated in the opinion of the court.</p> <p>D. Freidenrich, and Henry G. W. Dinkelspiel, for Appellants.</p>

<p>Appeal—Bill of Exceptions fob Use on New Trial—Use on Appeal from Judgment.—A bill of exceptions duly proposed and settled for use on a motion for new trial, although not regularly used on the motion, may be used in support of an appeal from the judgment.</p> <p>Id.—Appeal from Judgment—Sufficiency of Evidence.—On an appeal from the judgment taken within sixty days, the sufficiency of the evidence may be considered as well as the errors of law occurring at the trial.</p> <p>Railroad Grants—Effect of Patent—Mineral Lands—Duty of Land Department to Determine Character of Lands.—Although mineral lands, known to be such at and before the issuance of patent in pursuance of the grant of the United States to the Central Pacific Railroad Company by the act of Congress of July 1, 1862, and the amendment of 1864, were excluded from the grant, still that act cast upon the land department of the United States the duty of determining the character of the land before issuing patents therefor.</p> <p>Id.—Title to Mineral Lands Passes by Patent.—The land department is the legally constituted tribunal to determine the question whether or not the land to be patented is or is not mineral land within the meaning of the act, and its determination is not void, but a patent issued in due form passes the title, subject only to the right of the United States to attack the patent by a direct suit for its annulment if the land was known to be mineral when the patent issued.</p> <p>Id.—Clause in Patent Excepting Mineral Lands is Void.—A clause in- -the patent purporting to except mineral land found to be in the tract is void, because the officers of the United States who prepare and issue the patent have no authority to insert such exception.</p> <p>Id.—Conclusiveness op Determination that Land is Agricultural— Attack on Patent by United States.—A patent so issued constitutes a conclusive and official declaration that the land is agricultural, and that all the requirements have been complied with, except upon a direct attack by the United States, or some person acting in privity with it, to set aside the patent for fraud or mistake, or to declare a trust under it.</p> <p>Id.—Subsequent Mining Location—Want op Privity with United States.—One claiming under a mining location, made after the issuance of the patent and after a previous location was abandoned, is not in privity with the United States so as to be able to invoke the right to annul such patent.</p> <p>Id.—Locator Cannot Attack Patent for Fraud or Mistake.—The fact that the claimant of the mining location was not in privity with the government when the patent was issued prevents him from attacking the patent on the ground of fraud or mistake.</p> <p>Id.—Quieting Title—Judgment a Bar Against Subsequent Locator. After the issuance of such patent, the land ceases to be public land of the United States, and a judgment in favor of one holding under the patentee quieting his title against an adverse claimant operates to bar the latter as to any rights claimed by him under a mineral location made after the judgment.</p>

<p>Workmen’s Compensation Act—Independent Contractor—Contract to Cut Firewood — Injury to Employee of Subcontractor — Owner of Land not Liable.—One who agrees with the owner of land to cut firewood therefrom at a stipulated price per cord is an independent contractor, and the owner is not liable, under the Workmen’s Compensation Act, for personal injuries suffered by an employee of a subcontractor, while engaged in such work, who furnished his own tools and implements and labored at his pleasure, and was not under the authority or direction of the owner.</p> <p>Id.—Relationship Between Owner and Injured Employee—Jurisdiction—Certiorari.—The question of the relationship existing between such owner and the injured employee is jurisdictional and re- - viewable by the supreme court on certiorari.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial. Z. B. West, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Railroad Commission—Certiorari—Issuance of Writ—Objection to Jurisdiction of Court—Rehearing Before Commission.—The issuance by the supreme court of a writ of certiorari to review an order of the State Railroad Commission does not preclude the commission from continuing to insist, as it did in response to the order to show cause why the writ should not issue, that its order could not be reviewed by the court because timely application had not been made to the commission itself for a rehearing. Such an objection goes to the jurisdiction of the court and may be raised at any stage of the proceedings.</p> <p>Id.—Constitutional Law—Limitations on Courts’ Control Over Acts of Commission.—The limitations imposed by section 67 of the Public Utilities Act upon the control of the courts of this state over the acts of the railroad commission are valid, in view of the constitutional grant (Const., art. XII, see. 22) to the legislature of authority to confer powers upon the railroad commission, such authority being “expressly declared to be plenary and unlimited by any provision of this constitution.”</p> <p>Id.—Rehearing by Commission—Application for Essential to Right of Review by Courts—Application not Made in Time.—Under section 66 of the Public Utilities Act, requiring an application to be made to the commission for a rehearing prior to the effective date of its order or decision, as a condition precedent to the accrual of a cause of action arising out of such order or decision, water consumers lost their right to apply to the state courts for the review of an order of the commission raising the rates chargeable by a water company, which order was made in a proceeding instituted by the company itself, where no application for a rehearing by the commission was made until twenty-nine days after the date fixed by the order as that on which it should go into effect.</p> <p>Id.—Proceeding Instituted by Public Utility—Service of Order.— The provision of section 61a of the act, that orders of the commission do not take effect until twenty days after service of such orders, is not applicable to an order made in a proceeding instituted by the public utility itself raising the rates chargeable by it.</p> <p>Id.—Commission May Fix Effective Date of Orders.—In the absence of any provision to the contrary in the statute, the commission may provide in its discretion for the time when its orders shall take effect, even if the time fixed is so short as to render it impossible to petition for a rehearing.</p> <p>Id.—Limitations on Review of Acts of Commission.—The legislature might have withheld from the courts of the state any power of reviewing the acts of the commission, and the power of review which is given must be exercised within the limits and upon the conditions which the legislature has seen fit to fix.</p>

<p>Promissory Note—Agreement to Hold Principal and Interest in Trust for Third Persons—Pleading.—In an action upon a promissory note against the maker, an answer alleging that subsequent to the execution of the note it was agreed between the defendant and the payee that in consideration of the extinguishment of the note by the payee and the release by her of all obligation of the defendant thereon, the defendant would hold the amount of the principal and interest from the date of the. note, in trust, and would thenceforth apply and pay the same to the joint use and benefit of certain named beneficiaries, in equal shares; that during the minority of said beneficiaries, the defendant would apply said money according to her discretion; that the maker accepted said agreement and declaration of trust in full satisfaction of the note, and then and there verbally released the defendant from the obligation thereof, and that the defendant has ever since held said amount of money upon the said trust, and that the beneficiaries named own the entire beneficial interest in said sum of money, subject to the trust, fails to state a defense, when tested by a demurrer on the ground of uncertainty, in the absence of an allegation that the defendant, at the time of the agreement, then had in her possession or under her control the money owing upon the note, or that she had at any time since procured the same and devoted it to the trust, or that she was then or has been since, solvent and able to do so.</p> <p>Id.—Promise to Hold in Trust Money to be Obtained—Alteration of Written Agreement—Unexecuted Parol Agreement.—A mere promise to obtain money and thereupon hold it in trust does not create a trust until it is at least so far executed that the money has been obtained in accordance with the promise. Considered in that light the agreement between the payer and payee was ineffectual to alter or extinguish the note, since it was an attempt to alter a written agreement by an unexecuted parol agreement.</p> <p>Id.—Novation—New Obligation to Third Parties—Agreement by At.t. Essential.—Such agreement was ineffectual as a novation, under section 1531 of the Civil Code, because the beneficiaries to whom the obligation was to run did not accept the same or agree thereto. A novation whereby a new obligation to a third party is substituted cannot be made unless all agree.</p> <p>Id.—Tender of Interest After Maturity of Note—Further Running of Interest on Principal.—The tender, after maturity of a note, of the interest then due, does not stop the running of further interest upon the principal, but at most only the running of interest upon the interest then tendered and refused.</p> <p>Id.—Interest Recoverable Limited to Rate Specified.—In an action on a promissory note, no greater rate of interest is recoverable from maturity to the date of the judgment than that specified in the note.</p>

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

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.

<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, admitting a certain writing to probate as part of the will of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>John L. McNab, Gavin McNab, Nat. Schmulowitz, and R. P. Henshall, for Appellants.</p>

<p>Elections—Bight to Seek Office—Withdrawal op Candidate.—The right to seek election to any office is open to all persons possessing the constitutional or statutory qualifications. A citizen is, however, under no obligation to seek election to an office. He may be a candidate or refuse to be such, at his option, and in the absence of statutory provision to the contrary, the mere fact that he has once announced his candidacy for an office does not prevent him from withdrawing as a candidate whenever he sees fit so to do.</p> <p>Id.—Primary Election—Candidate for Nomination May Withdraw Prior to Election—Omission op Name Prom Ballots—Mandamus.—The direct primary law (Stats. 1913, p. 1379), permits a candidate for nomination to an office at a primary election, after having regularly qualified as such, and after his name had been regularly certified by the Secretary of' State to the various county clerks and registrars as a candidate, to withdraw his candidacy for such nomination prior to the election, and, under section 27 of such act, mandamus will lie directing the officials having control of the preparation of the ballots to omit his name therefrom.</p> <p>Id.—Affidavit not to Withdraw Ip Nominated.—The provision of the primary election law, requiring the elector, before having his name placed upon the ballot as a candidate, to sign an affidavit stating that if nominated he will accept such nomination and not withdraw, is applicable only to the condition existing after the primary election, at which, if at all, he will be nominated.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial. William S. Wells, Judge.</p> <p>• The facts are stated in the opinion of the court.</p> <p>Frank Thunen, Stanley Moore, Frank McGowan, and A. A. Moore, for Appellants.</p>

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

<p>Negligence—Fall from Floor of Bridge—Unsuitable Working Appliance—Negligent Starting of Machinery.—In an action by an employee to recover for personal injuries resulting from a fall from the floor of a bridge while there assisting in the work of moving a heavy piece of timber, the judgment for the plaintiff is sustained by the evidence that the defendant failed to supply the plaintiff with a suitable appliance for the work, coupled with the «, negligent starting of the machinery by which the timber was to be moved, without warning to the plaintiff, thus causing him to lose his balance and fall to the ground.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, Robert M. Clarke, Deputy Attorney-General, and Tracy Chatfield Becker, Deputy District Attorney, for Appellant.</p>

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Utilities Act — Crossing op Street and Railroad — Railroad Commission—Crossings in City op Los Angeles.—The provision of section 43 of the Public Utilities Act of 1911, (Stats. Spec. Sess. ■ 1911, p. 18), that no grade crossings of any railroad by a street, or of any street by a railroad, shall be made without the permission of the railroad commission first obtained, that the commission shall have power to refuse or grant such permission upon such terms and conditions as it may prescribe, and that it shall have exclusive power to determine and prescribe the manner and place of making such crossings and to abolish the same, at its pleasure, does not apply^ to street openings and railroad crossings within the city of Los Angeles. This follows, whether the Public Utilities Act be regarded as a general law on that subject, and considered independently of any special authority to legislate upon that subject under the provisions of section 23 of article XII of the constitution, or be considered as an exercise of the power to legislate over the subject of public utilities specially given by that section of the constitution.</p> <p>Id.—Reserved Power op Municipalities Over Public Utilities Under Constitution. — The power of the legislature to pass the Public Utilities Act is derived from section 23 of article XII of the constitution, which reserves to every incorporated city all the powers of control over public utilities relating to the making and enforcement of local, police, sanitary, and other regulations, other than the fixing of rates, which are vested in such city, unless the city by popular vote chooses to transfer the same to the railroad commission. Section 82 of the Public Utilities Act in substantially identical terms makes the same reservation in favor of cities. The city of Los Angeles has never elected to make such transfer, consequently it still retains unimpaired all its regulatory powers of control over public utilities, except rate making.</p> <p>Id. — Municipal Ape airs — City Charters Paramount to General " Laws.—Under section 6 of article XI of the constitution, as amended in 1914, and as it existed prior thereto, city charters framed and adopted under the provisions of the constitution are paramount to general laws with respect to municipal affairs.</p> <p>Id.—Opening and Control of Streets are Municipal Affairs.—The opening, laying out, and improvement of streets within a city, and the regulation of the manner of their use, are matters of much greater concern to its inhabitants than to the people of the state at large, and are municipal affairs, the control of which has always been deemed within the proper scope of municipal powers.</p> <p>Id. — City of Los Angeles — Paramount Authority Over Railroad Crossings — Charter Supersedes Public Utilities Act. — The power to establish, lay out, and open streets and crossings thereof, and to regulate the construction and operation of railroads within the city, conferred on the city of Los Angeles by section 2 of its charter of 1889, and the amendments of 1905, 1909, and 1911, includes the power to open a street across an existing railroad, and to regulate the operations of the railroad at such crossing, as well as elsewhere within the city. The power to acquire land for that purpose applies as well to the land of a. railroad company as to that of any other person. Being municipal affairs, the provisions of the charter on the subject are paramount, and supersede general laws, which would otherwise apply thereto, including the Public Utilities Act, so far as operations within the city are concerned. Id.—Condemnation Suit—Charter Supersedes Section 1247 of Code of Civil Procedure.—Section 1247 of the Code of Civil Procedure, vesting in the superior court the power to make regulations affecting</p> <p>-the crossings of streets and railroads whenever they are involved in a condemnation suit, is a general law, and was superseded as to the city of Los Angeles by such provisions of its charter.</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>Certiorari — Excess op Jurisdiction. — Certiorari lies only to review an excess of jurisdiction, and errors in the exercise of jurisdiction may not be considered in such a proceeding.</p> <p>Id.—Equity—Labor Disputes—Injunction Against All Picketing— Appeal.—A court of equity is not without jurisdiction to enjoin a labor union from any and all “picketing,” as that term is used in connection with labor disputes, and error, if any, is so doing, is a mere error in the exercise of jurisdiction and reviewable only upon direct appeal from the order.</p> <p>Id. — Labor Union — May be Sued by Common Name — Contempt. — Under section 388 of the Code of Civil Procedure, an action to' enjoin “picketing” may be maintained against the members of an unincorporated labor union by their common or associate name, and all members of the association having knowledge of the terms of any injunction issued therein, as well as all its officers, agents, representatives and employees, having such knowledge, are bound thereby and guilty of contempt in any willful violation thereof.</p>

<p>Municipal Corporations—Repairs op Streets—Liability por Consequential Damages to Adjoining Owner.—Municipal corporations, acting under authority conferred by the legislature to make and repair, or to grade, level, and improve streets, if they exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner whose lands are not actually taken for consequential damages to his premises, unless there is a provision in the charter of the corporation or some statute creating the liability.</p> <p>Id.—Removal op Blocks op Gutter—Percolation op Water into Adjoining Basement.—A contractor with a municipality for the repair of a street, whose contract required him to remove the basalt blocks which formed the base of a gutter at or near the line of the basement of an adjoining land owner, and who does so in a proper manner, is not liable for consequential damages to the adjoining land owner, caused by rain-waters which percolated through the exposed sandy soil from which the blocks had been removed and thence through an ineffectual basement wall and into the basement of the adjoining owner. (Per Melvin, J.; Lorigan, J., and Henshaw, J., concurred. Angellotti, O. J., concurred in the reversal of the judgment, on the ground that the evidence did not show that the contractor had failed to use reasonable care to avoid injury to the adjoining property owner, and Shaw, J., dissented on the ground that the evidence, reasonably construed, was sufficient to support the finding that the defendant failed to use such reasonable care.)</p>

<p>Workmen’s Compensation Act—Injury Received in Course of, and Arising Out of, Employment.—To entitle an employee to compensation for an accidental injury under the Workmen’s Compensation Act, the injury must not only be received in the course of the employment, but must also arise out of the employment.</p> <p>Id.—When Injury Arises Out of Employment.—The injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributory proximate cause, and which comes from a hazard to which the workman would be equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and. to have flowed from that source as a rational consequence.</p> <p>Id.—Giving Way of Overloaded Floor—Injury to Employee Working Below — Employer Ignorant of Condition and Without Control of Floor.—The claimant was employed as a dishwasher by the owner of a restaurant who was conducting his business in leased premises on the ground floor of a building. While working as such, an overloaded floor above the place where he was at work suddenly gave way, with the result that he was injured by a falling object. This floor was not included in the lease under which the employer occupied the portion of the building devoted to restaurant purposes, and he had no control whatever thereof, and no knowledge that it was being used for storage purposes. It was in fact rented for a lodging-house, the lease containing a clause that it should not be used for any other purpose. Held, that the injury arose out of the employment of the injured employee, within the meaning of the Workmen’s Compensation Act.</p> <p>Id.—Special Exposure op Employee to Danger.—If the exposure of the employee to a particular danger differs substantially from the normal risk to which all are subject, if the employment necessarily accentuates and increases the danger to a higher degree than that to which persons generally are subjected, then it may fairly be held that there was such special exposure to such danger as warrants a conclusion that the accident arose out of the employment, even though unexpected or unusual and in no way actually anticipated.</p> <p>In.—Dangerous Condition op Working Place.—Injury to an employee which is due to the dangerous condition of the room in which he is required to work is an injury resulting from a “risk reasonably incident to the employment.”</p>

<p>Trials—Findings op Fact and Conclusions op Law—Decision— Opinion op the Judge.—Where the trial is without a jury and findings are not waived, the issues of fact remain undecided until findings are filed, and no antecedent expression of the judge, whether casual or east in the form of an opinion, can in any way restrict his absolute power to declare his final conclusion in the only manner authorized by law, to wit, by filing the “decision” (findings of fact and conclusions of law) provided for by sections 632 and 633 of the Code of Civil Procedure. The rule above stated is not altered by the circumstance that the record on appeal has been prepared under sections 953a, 953b, and 953c of the Code of Civil Procedure. Fraudulent Transfers—Transfer Defined.—To make out a case" to set aside a transfer as fraudulent under sections 3439 and 3440 of the Civil Code, it is essential to establish that there has been, as a transfer, such an act as vested the real or apparent ownership of some interest in the property in the transferee, although such transfer need not be in writing.</p> <p>Id.—Personal Property Mingled With Other Personal Property— Conversion—Eight of Creditor of Deceased Owner.—Where the owner of personal property made no transfer of it, but remained the owner and in possession of it until his death, and the personal property was mingled with other personal property of other parties who sold it all, a creditor of the deceased owner has no right of action to recover such property or its proceeds on the ground that it has been fraudulently transferred.</p> <p>Id.—Possession by Third Party—Proof of Transfer.—Mere possession by a third party of personal property of an insolvent debtor does not establish a transfer which a creditor could assail as fraudulent. Findings—Conflict of Evidence—Power of Appellate Court.—It is beyond the power of an appellate court to review a finding of the trial court made where there is at least a substantial conflict in the evidence directed to the fact found.</p> <p>Pleading—Amendment of Complaint—Distinct Cause of Action— Evidentiary Matter.—It is not error to refuse leave to amend a complaint to set aside a transfer of personal property as fraudulent by adding thereto allegations concerning transfers of certain real estate, because, if the amended complaint was intended to lay a foundation for an attack upon the conveyance of the real estate, it was seeking to introduce a distinct cause of action; and if the purpose was to show a general scheme to defraud, such new matter was merely evidentiary and need not be pleaded.</p>

<p>Public Utility—Covenant by Grantor to Supply Water—Bates to be Fixed by Public Authority.—Covenants in deeds made by a land company, 'the owner of a water system for supplying water to its lands for purposes of irrigation, that it would furnish water to the lands conveyed “at such rates as may be fixed by law in the district in which said lands are situated,” show the intention of the parties to the deeds that the rates to be charged should. he those fixed by public authority, the fixing of which in itself implies that the service is to he that of a public utility.</p> <p>Id. — Bailroad Commission — Application to Fix Bates op Private Water Company—Change op Use From Private to Public.—The application to the railroad commission by a private water company engaged in supplying water for private use, to have its rates for water established, and an order of the commission allowing an increase in the rates theretofore in effect, operated, as against the company, as a submission to the authority of the regulating body, and was effective to change the use from a private and particular use to a public use so as to make the service and terms of delivery subject to regulation and control by public authority.</p> <p>Id. — Jurisdiction op Commission — Determination op Controverted Bight to Supply op Water.—-Under the Public Utilities Act and the act of 1913 expressly authorizing the railroad commission to regulate water companies and to require them to serve additional customers, the commission has jurisdiction to hear and determine an application for service, notwithstanding the company was in good faith disputing the applicant’s right to be supplied with water.</p> <p>Id.—Power to Determine Jurisdictional Facts.—Whenever a court or board is authorized to act upon the existence of a certain state of facts, it has jurisdiction to determine the existence or nonexistence of the requisite facts. Its jurisdiction cannot be affected by the circumstance that these facts are denied.</p> <p>Id.—Covenant by Grantor to Supply Water—Basement on Water System — Easement not Lost by Mere Disuse. — Where a land company, the owner of a water system for supplying water to its lands for purposes of irrigation, conveys its lands by deed containing a covenant on its part that “water shall be furnished if the grantee, his heirs or assigns shall at any time plant trees or vines or otherwise cultivate said lands,” and a purchase price was paid in excess of the value of the land in reliance on the agreement to supply the necessary water, such covenant is a present grant of a water right, constituting a burden or servitude upon the water system of the grantor, and not a mere agreement to sell personal property in the future. Such easement, being acquired by grant, is not lost by mere disuse.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Edwin A. Meserve, William F. Palmer, and Lewis R. Works, for Appellant.</p>

<p>APPLICATION for a Writ of Mandate directed to the Members of the Board of Supervisors of San Bernardino County.</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>U. S. Webb, Attorney-General, and Raymond Benjamin, Chief Deputy Attorney-General, for Appellant.</p>

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>MOTIONS to dismiss several appeals from a decree of the Superior Court of the City and County of San Francisco establishing heirship and succession to the estate of a deceased person, and from orders refusing a new trial. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>■ Houghton & Houghton, and Sullivan & Sullivan and Theo. J. Roche, for Appellants making the motion.</p> <p>• Rothchild, Golden & Rothchild, Edgar D. P.eixotto, and Marcus Rosenthal, for Appellants resisting the motion.</p>

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

<p>Primary Election — Defeated Party Candidate — Eligibility as Nominee of Different Party at General Election.—Under the Primary Election Act of .1913, a person who had filed nomination papers as a candidate for a particular party nomination for a specified office, and who was defeated for such party nomination at the primary election, but was elected thereat as the party nominee of a different party by having his name written in as such on the primary election ballot, is not ineligible to run as the party nominee of such other party at the ensuing general election, and is entitled to have his name inserted as such on the ballot for the general election.</p> <p>Id.—Construction of Primary Election Law of 1913.—The provision of subdivision 8 of section 5 of such primary election law, declaring that “nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section 1188 of the Political Code . . . except that a candidate who has filed nomination papers for nomination to any office on the ballots of any political party at a primary election, . . . and who is defeated for such party nomination, at such primary election, shall be ineligible for nomination to the same office at the ensuing general election, either as an independent candidate or as the candidate of any other party,” simply means that a candidate for a party nomination who was defeated at the primary election may not have his name placed on the general election ballot as a candidate for the office under the provisions of said section 1188.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Warren Olney, Jr., W. H. Carlin, and Alexander R. Baldwin, for Appellant.</p>

<p>Negligence — Employee and Employee—-Rosebeery Act—Employer Without Fault.—The Roseberry Act (Stats. 1911, p. 796), does not impose a liability on an employer for an injury to an employee which occurred solely through the negligence of the employee without any fault of the employer.</p> <p>Id.—Place of Work—Requirement as to Safety.—An employer is not required to furnish an employee an absolutely safe place in which to work. The place need only be reasonably safe, having regard to the character of the work.</p> <p>Id.—Carpenter Working on Scaffold—Safe Means of Access—Use of Unsafe Method.—If one employed as a carpenter is furnished by his employer with a safe means of access to a scaffold on which he is required to work, and for his own convenience refuses to use it and adopts methods involving a needless risk, the employer is not liable for the resultant injuries to the employee.</p>

<p>Vendor and Vendee—Contract in Name of Agent—Ratification—■ Execution of Escrow Deed bt Principal.—An executory contract for the sale and exchange of land, entered into by an attorney in fact in his own name, is accepted and ratified by the principal, having full knowledge of the transaction, by executing a deed and depositing it in escrow in pursuance of the contract.</p> <p>Id.—Specific Performance—Undisclosed Principal.—Such an undisclosed principal could either sue or be sued in an action to specifically enforce the executory contract of sale.</p> <p>Id.—Adequacy of Consideration—Equality of Price—Exchange.— Adequacy of price, as a condition to the right to a specific performance of a contract for the sale and exchange of land, does not mean equality of price, and an adequate consideration does not mean a consideration measuring to the fullest extent up to the value of the property. Each case must rest for determination upon its own facts, and equity will find adequacy or inadequacy after considering all of the circumstances appearing in each particular case.</p> <p>Id.—Slight Disparity in Value of Properties Agreed to be Exchanged.—In this action to specifically enforce a contract for the exchange of property of the value of twenty thousand dollars, a disparity of one thousand dollars in the value of the respective properties does not, under the circumstances of the case, amount to inadequacy of consideration justifying a refusal of specific performance.</p> <p>Ib.—Evidence—Fraudulent Misrepresentations as to Value.—The evidence in this case fails to show any fraudulent misrepresentations concerning the value of the property which was agreed to be taken in part exchange for the property in question.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank J. Gordon, Welles Whitmore, and James J. Van Hovenberg, for Appellant.</p> <p>Nutter & Orr, Griffin & Carlson, Hatton & Scott, J. W. Hawkins, J. F. Lanagan, George P. McNoble, and Thomas, Beedy & Lanagan, for Respondents.</p>

<p>Gift Causa Mortis—Deposit in Bank—Delivery of Certificate of Deposit—Evidence.—In this action by a surviving wife against a bank to recover a sum of money represented by a certificate of deposit payable to the order of her deceased husband, which she claimed to have received from him as a gift causa mortis, the evidence of the wife, although it is to be received with caution, is held sufficient to justify the finding that the deceased gave the certificate of deposit to the plaintiff, that he did so with the intention of making a gift of the money to her, and that he acted in contemplation of death.</p> <p>Id.—Intention of Donor, How Manifested.—The donor’s intention to make such gift need not be manifested solely by the particular words employed by him. It is a question of fact to be determined upon all the evidence in the case—the situation of the parties, their relationship, the circumstances surrounding the transaction, the apparent purpose in making the gift, the words spoken at the time, and the like.</p> <p>Id.—Delivery of Unindorsed Certificate of Deposit — Equitable Assignment.—Where there is no opportunity to make an indorsement or written assignment of an instrument, payable to order, such as a certificate of deposit intended as a gift causa mortis, the absence of an indorsement does not raise a presumption against the validity of the transfer. Its delivery constituted an equitable assignment of the money on deposit.</p> <p>Id.—Deposit in Bank may be Given Causa Mortis.—A deposit in a bank is a proper subject of a gift causa mortis, and may be evidenced by the delivery of the certificate of deposit without indorsement. The conditions of transfer printed upon the certificate calling for an indorsement do not alter the rule.</p>

<p>Estates of Deceased Persons—Family Allowance to Widow—Marriage Contract.—A contract between a husband and wife, entered into at the time of the marriage and adhered to by them until the marriage was dissolved by the death of the husband, whereby the income of the separate estate of each was to be devoted to the support of the community, does not deprive the wife of her right to a family allowance from the separate estate of her deceased husband.</p> <p>Id.—Widow’s Eight to Family Allowance.—Under sections 1465 and 1466 of the Code of Civil Procedure, the surviving wife has a right to a reasonable allowance for her support from the estate of her deceased husband, whether the estate was community property or his separate estate, and irrespective of whether she has estate of her own out of which she might support herself.</p>

<p>Will—Petition fob Probate—Construction of Will not Involved.— On a petition for the probate of one or several writings claimed to constitute a will, the only question before the court is, does it or do they constitute the will of the deceased—is a testamentary disposition of property intended and disclosed by the writings'? In determining that question, the court cannot ordinarily enter into any consideration of the construction of the will, resolve inconsistencies in the disposition of property, or construe the provisions of the instrument.</p> <p>Id.—Will Embodied in Several Letters.—Certain letters written by the deceased to her brothers and sisters and to her business agent, immediately prior to her undergoing a surgical operation, are held to have been written animo testandi, and to constitute the last will of the deceased.</p> <p>Id.—Will Conditioned upon Dying of Particular Disease.—Under the circumstances, taken in connection with the language employed by the deceased in her letters, the effect of such letters as a will was conditioned not upon the fact that she should die as the immediate effect of the contemplated operation, but upon dying from the disease which the operation was intended to relieve. The evb dence is sufficient to show that the deceased died of such disease. In.—Letters op Administration With Will Annexed—Eight op Surviving Husband — Taking Portion op Personal Estate.— Under sections 1350a and 1365 of the Code of Civil Procedure, where a will of a testatrix appoints no executor, her surviving husband, who took by bequest no portion of her personal estate, is not entitled to letters of administration with the will annexed. Such letters are properly issued to a brother, who was a legatee under the will.</p>

<p>Vendor and Vendee—Price Determined by Value of Crop—-Duty of Vendee in Possession not to Diminish Crop.—Where as part of the purchase price of a tract of land the vendee who had been put in possession agreed to pay for certain walnut trees growing thereon a sum equal to ten times the proceeds received from the sale of the walnut crop for a specified year, after deducting the cost of harvesting and marketing the same, and the vendor under the contract of sale had no right to enter the land save for the limited purpose of supervising with the vendee the harvesting and gathering of the crop, it was the duty of the vendee not to do nor to permit to be done any act which would tend to diminish or destroy the crop; and if he permits his hogs, during harvest time, to range over the grove and destroy a portion of the crop, he is liable to the extent of the net value of the portion destroyed which would have constituted a partial basis for determining the purchase price.</p> <p>Ib.—Action for Purchase Price—Unliquidated Demand—Interest. An action to recover such purchase price is based on a demand which is uncertain and unliquidated, and interest thereon prior to judgment is not recoverable.</p>

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

Howard A. Peairs, •Tudge. The facts are stated in the opinion of the court. Gavin McNab, and R. P. Henshall, for Appellants Sunset Road Oil Company et al. Donzel Stoney, G. S. Arnold, William Denman, A. A. De Ligne, and Denman & Arnold, for Respondents, Kern Valley Bank, and W. R. Williams, Superintendent of Banks of the State of California.

<p>Charitable Trust—Will—Precatory Words.—In this action to impress with a trust for charitable uses the property passing under the residuary clause of the will construed in Estate of Purcell, 167 Cal. 176, the decision in that case is followed to the effect that from the will itself no inference in favor of the existence of such a trust may be drawn.</p> <p>Id.—Charging Legatee With Secret Trust—Burden op Proof—Confidential Belations.—Plaintiffs seeking to charge with a secret trust for charitable purposes property bequeathed to an individual without limitation has the burden of proof to establish the trust either by direct or circumstantial evidence, which in this case they have failed to do. The mere existence of confidential relations between the testator and the legatee is insufficient to establish such trust.</p> <p>Id.—Promise to Hold Legacy for Particular Trust.—A court of equity may impose and enforce upon a legatee a trust where he has procured the legacy to be given him upon a promise, express or implied, that he will take and hold the property for some particular use; and where the secret trust is created for a purpose which is contrary to law, if no other disposition is made of the legacy by the will, the legatee will be declared the holder of the property in trust for the benefit of the heirs. Before this may be done, the evidence must establish that the legacy was given upon a promise, express or implied, that it would be taken and used for the particular trust.</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 Los Angeles County admitting to probate a foreign will and granting letters of administration with the will annexed. James C. Rives, 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>

The facts are stated in the opinion of the court. Mastick & Partridge, Peter F. Dunne, and W. I. Brobeck, for Appellants. H. A. Van C. Torchiana, Stratton, Kaufman & Torchiana, and Bourdette & James, for Plaintiffs and Respondents.

<p>Workmen’s Compensation Act—Employee op Independent Contractor—Liability op Owner op Building—Evidence Taken Prior to Notice op Hearing.—The Industrial Accident Commission has no jurisdiction to render an award against the owner of. a building being erected by an independent contractor, for accidental injuries sustained by an employee of a subcontractor, nor can it make a valid award, upon evidence taken prior to the service of notice of the hearing upon the party held liable. Carstens v. Pillsbury, 172 Cal. 572, and Sturdivant v. Pillsbury, 172 Cal. 581, approved.</p>

<p>County—Contract for Acquisition of Land for Highway—Fraud— Pleading.—A contract made by a county, in pursuance of the Public Highway Act of 1907 (Stats. 1907, p. 666), under which it acquired land for a public highway, and which contract had been approved by the highway commissioners and by the board of supervisors, cannot be avoided by the county upon mere averments to the effect that the assistant district attorney, the legal adviser of the highway commission, was interested as a stockholder in a corporation whose land was acquired, that an excessive consideration was paid therefor, that such county officials were ignorant of that fact, and that the county was induced to pay the consideration through the fraud of the assistant district attorney.</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>Joseph L. Lewinsohn, W. N. Goodwin, and Hunsaker & Britt, for Imperial Water Company No. 1, Appellant.</p>

<p>Railroad Commission—Compelling Railroad Company to Build New Line.—The railroad commission has no authority, under section 36 of the Public Utilities Act, to require a railroad company to extend its line of railroad, or to build a new line, so as to connect with its existing line points that have not theretofore been connected and which the company has not undertaken to so connect.</p> <p>Id.—Former Abandoned Line Between Termini of New Line.—The fact that a railroad line, constructed but long since abandoned by a predecessor of the company, had once existed between the points ordered to be connected by the new line does not authorize the commission to make the connection.</p> <p>Id.—Commission Does not Enforce Private Contracts.—The railroad commission is not charged with the enforcement of private contracts. Its function is to regulate public utilities and to compel the enforcement of their duties to the public, not to compel them to carry out their contract obligations to individuals.</p> <p>Id.—Public Utility—Taking Property for Public Use—Requiring Property to be Used for New Service.—A public utility, under: taking to supply a given public need, submits itself to the regulation and control of public authority with respect to the service which it has thus undertaken. But to require it to devote its property to a service which it has never professed to render is to take that property pro tanto, and such taking cannot be justified except under the power of eminent domain upon just compensation.</p> <p>Id.—Supply of Transportation Needs by Railroad.—A railroad company, in constructing a line between given points, does not undertake to supply the transportation needs of any territory not reached by its lines.</p> <p>Id.—Extension of Railroad Lines—Policy to be Determined by Directors.—The question whether a railroad' company shall extend its lines to points not theretofore reached by it,- whether, in other words, it shall engage in a new and additional enterprise, is one of policy to be determined by its directors.</p>

<p>Final Judgment — Appeal — Action to Avoid Deed — Judgment in Favor op Subsequent Purchasers.—In an action in equity to avoid an administrator’s deed, brought against the administrator and subsequent purchasers from his grantee and mortgagees claiming under them, a default judgment entered" in favor of such subsequent purchasers upon sustaining their demurrer to the complaint, dismissing the action as to them, is a final judgment from which an appeal by the plaintiff will lie.</p> <p>Id.—Final Judgment Affecting Separate Parties.—Any set of parties whose interests are identical must have the controversy as to them settled before any final judgment may be entered. No given set of parties may try the ease piecemeal, but separate parties, if the court in its discretion so directs, may litigate their controversies separately and may proceed to final judgment without waiting for judgments as to other parties.</p> <p>Cancellation of Administrator’s Deed—Irregularities in Appointment of Administrator—Lack of Equity.—A complaint by the assignee of the heirs of a deceased person seeking to avoid a deed of the administrator of the estate for alleged irregularities in the legal proceedings resulting in his appointment lacks equity, when it appears therefrom that the appointment was made upon the request of the husband of the deceased, one of her heirs at law, and one of the plaintiff’s assignors.</p> <p>Id.—Collateral Attack—Informalities in Issuance of Letters.— Such an action is a collateral attack upon the title of those claiming under the administrator’s deed, in which the plaintiff cannot take advantage of mere informalities in the issuance of letters of administration.</p> <p>Id.—Judgment in Probate Directing Conveyance by Administrator. A judgment directing the conveyance of real property by an administrator acting under the direction of the superior court exercising its probate jurisdiction after letters have been issued to him, cannot be collaterally attacked.</p> <p>Id.—Fraudulent Administrator’s Deed—Bona Fide Purchasers.—An administrator’s deed, executed in pursuance of an order of the court in probate for the specific performance of an alleged contract for the sale of the land, notwithstanding it was procured through the fraudulent conduct of the administrator and his immediate grantee, cannot be avoided as against subsequent bona fide purchasers for value, without notice, actual or constructive, of the fraud.</p> <p>Id.—Notice of Fraud—Insufficient Facts to Put on Inquiry.—The facts that the administrator joined with the vendee under the contract of sale in the petition for the specific performance of the contract, and that .the same attorney acted for both in the matter of the petition, were insufficient to put such subsequent purchasers upon inquiry as to the fraud.</p>

<p>Agency—Real Estate Broker—Authority to Find Purchaser—Contract of Sale.—A written instrument executed by the owner of land, which merely authorized a real estate broker to find a suitable purchaser, without binding the owner to make a sale if a purchaser were found, does not empower the broker to make a contract of sale binding on the owner.</p> <p>Id.—Authority of Agent to Sell Land must be in Writing.—An agent’s authority to make a contract of sale of land of his principal is not valid unless it is in writing and signed by the principal.</p> <p>Id.—Escrow—Deposit of Deed With Third Person—Absence of Contract of Sale.—The deposit of a deed with a third person to be delivered to the grantee only upon payment of the price fixed by the grantor is not sustainable as an escrow, where there was no prior or contemporaneous contract of sale of which the delivery of the deed was to be the consummation.</p> <p>Id.—Offer to Sell — Withdrawal by Grantor — Depositary a Mere Agent of Grantor.—Where there was no prior or contemporaneous contract of sale, the deposit of a deed with a third person, with oral instructions to deliver it to the grantee upon payment to the depositary for. her own use of a price fixed by the grantor, constituted a mere offer which the grantor had the legal right to withdraw at any time before the payment by the grantee of the amount specified, and the depositary was nothing more than a voluntary agent of the grantor to hold the deed subject to the latter’s order. Until the consummation of the transaction by the grantee, the depositary had no right to the money specified as the price.</p> <p>Id.—Death of Grantor—Termination of Offer and Agency of Depositary.—The death of the grantor terminated and revoked the offer and the authority of the depositary, as agent of the grantor, subsequently to accept the money and deliver the deed.</p> <p>Id.—Acquiescence of Grantee in Deposit.—The mere consent of the grantee, after its deposit, that the depositary might retain the deed until he was ready to pay the money did not convert the deed into a valid escrow.</p>

<p>Appeal—Stay of Proceedings—Undertaking for Stay.—The provisions of sections 942 to 945 of the Code of Civil Procedure, requiring an undertaking to be given or other act done as a condition precedent to a stay of proceedings pending an appeal, apply only where the appellant has money or other property in his possession or under his control which has been adjudged by the lower court to belong to the respondent, or where the appellant has been directed to do some act for the benefit of the respondent.</p> <p>Id.—Stay Under Section 949, Code of Civil Procedure.—The stay given by section 949 of the Code of Civil Procedure in the event of appeal is effectual only as to the judgment in so far as it affects the appellant, requires him to do something, or permits something to be done as to him.</p> <p>Id.—Conflicting Claims to Bank Deposit—Judgment for Money in Favor of Individual Defendant—Appeal by Plaintiff.—In an action seeking to establish plaintiff’s ownership to and the recovery of money deposited in a bank, brought against the bank and an individual in whose name the deposit stood, in which judgment was rendered in favor of the individual defendant and against the bank for the recovery of the amount of the deposit and determining that plaintiff had no interest therein, an appeal by the plaintiff from the judgment, unaccompanied by a stay bond, does not stay the enforcement by the individual defendant of the judgment for the money as against the bank.</p> <p>Id.—Writ of Supersedeas Pending Appeal by Plaintiff.—In such a case the statute makes no provision for a stay, but the appellate court, in view of the peculiar circumstances and in the exercise of a reasonable discretion, will grant a writ of supersedeas upon the giving by the appellant of a proper bond to secure to respondent the fruits of her judgment against the bank in the event that the same be affirmed or the appeal dismissed.</p> <p>Id.—Power to Grant Writ of Supersedeas.—The appellate court has power to grant a writ of supersedeas in cases where the writ is necessary to preserve the status quo so that the rights involved in an appeal, when determined by the appellate court, may not be lost or prejudiced by reason of the intervening execution of the judgment or order appealed from, in cases where the statute regulating a stay of proceedings on appeal makes no provision for such stay in the particular ease.</p>

APPLICATION to the Supreme Court for further security to be given by the appellant to stay execution pending appeal from a judgment of the Superior Court of Kern County. J. E. Prewett, Judge presiding. The facts are stated in the opinion of the court. E. W. Camp, Oscar Sutro, M. W. Reed, and U. T. Clotfelter, for Appellant. Waters & Goodcell, James F. Farraher, and Heney, Farraher & Johnson, for Respondents.

<p>Probate Proceedings—Issues op Fact—Eight to Jury Trial.—In any probate proceedings in which the statute authorizes the formation of issues of fact, either party is, under sections 1716 and 1312 of the Code of Civil Procedure, entitled to a jury trial, at his option.</p> <p>Id.—Distribution op Estate—Jury Trial op Issues op Fact.—A proceeding for partial distribution of the estate of a deceased person is one in which the Code of Civil Procedure (sections 1658 to 1662 inclusive) authorizes the framing of issues of fact, and under sections 1716 and 1312 of that code, either party thereto is given the right to demand a trial by jury of the issues of fact joined therein.</p> <p>Id.—Adoption op Illegitimate Child by Father—Evidence op Paternity—Public Acknowledgment.—In a proceeding for the distribution of the estate of an unmarried man to a person claiming to be his illegitimate child, and to have been adopted by him as his own lawful issue in the manner specified by section 230 of the Civil Code, statements of the reputed father acknowledging the child to be his, made at the time of its birth to the physician in attendance upon the mother, and similar statements made by him to servants at the home of the mother, are admissible in evidence to show paternity and public acknowledgment. (Per Shaw, J.)</p> <p>Id.—New Trial—Error Authorizing Granting op.—Errors in the rejection of such evidence and in denying a trial by jury, under the circumstances of this case, warrant the granting of a new trial to the child, notwithstanding the inconclusive nature of the evidence designed to show that the decedent received the child into his family and treated it as if it were a legitimate child. As to the sufficiency of the evidence on that point no opinion is expressed. (Per Shaw, J.)</p>

<p>The facts are stated in the opinion of the court.</p> <p>Olin Wellborn, Jr., and Alfred H. McAdoo, for Appellant.</p>

<p>Attorney and Client—Action fob Fees—Interest—Pleading.— Where the complaint in an action to recover attorney’s fees charged in several counts upon an account stated, upon an express contract, and upon a quantum meruit, interest on the principal sum sued for is properly included in the verdict for the plaintiff, where the evidence was sufficient to sustain the verdict either upon the count of an account stated or upon the count of an express contract.</p> <p>Id.—Express Contract for Services—Account Stated.—Where the transactions between an attorney and client covered a period of years, and there were disbursements made by the attorney on behalf of the client, and receipts of money from the client which were matters of adjustment, the bill of the attorney was a proper subject for an account stated, notwithstanding the services of the attorney were rendered under an express contract.</p> <p>Id.—Acquiescence—Failure to Object to Account—Unreasonable Delay—Question of Law—Instructions.—Where assent to an account is based upon acquiescence arising from a failure to object, the length of time which must pass before an account rendered becomes, by virtue of the recipient’s failure to object, an account stated, is one of law for the court. In this case, the court properly instructed the jury that a delay of six months to object to the account rendered, if unsatisfactorily explained, was unreasonable as matter of law, and that because of it acquiescence would be presumed and the account would become an account stated.</p>

MOTION to stay proceedings pending an appeal from an order of the Superior Court of San Diego County appointing an executor. W. R. Guy, Judge. The facts are stated in the opinion of the court. Wheaton A. Gray, A. J. Casebeer, and J. H. McCorkle, for Appellant Oliver J. Stough. Ward, Ward & Ward, for Appellant Southern Trust & Savings Bank. Ralph E. Jenny, for Appellant Bank of Commerce & Trust Company.

<p>Workmen’s Compensation Act—Section-hand on Railroad—Fighting Fire on Adjoining Land.—A section-hand employed on a railroad who was sent by his foreman, at the request of the owner of an adjoining ranch, to help in extinguishing an accidental brush fire thereon, was not in the employ of the railroad while so doing.</p> <p>Id.—Fighting Accidental • Fire on Ranch—Casual Employment— Usual Course op Business op Farmer.—The employment of such person by the ranch owner to help in fighting the accidental brush fire was both casual and not in the usual course of the business of the employer as a farmer, and, under section 14 of the Workmen’s Compensation Act, the employer was not liable to compensate the employee for an accidental injury suffered by him while doing such work.</p> <p>Id.—Injury Occurring Apter Cessation op Employment.—An injury to such employee, occurring after he had ceased to fight the fire, and had been paid for his time, and when he had left the precise place of his labors and was ready to go home, but while he still remained on the ranch, did not arise out of and in the course of his employment, within the meaning of section 12a of the Workmen’s Compensation Act.</p>

<p>Negligence—Master and Servant—Assumption oe Bisk.—Under section 1970 of the Civil Code, as amended in 1907, a servant assumes the ordinary risks of the business upon which he enters, so far as those risks, at the time of his entering upon the business, are known to him, or should be readily discernible by a person of his age and capacity. He does not assume any risks’which are not thus known or discernible.</p> <p>Id.—Duty oe Master to Warn Servant.—The master must give warning to his servants of all perils to which they will be exposed, of which he is or ought to be aware, other than such as they should, in the exercise of ordinary care, have foreseen as necessarily incident to the business, in the natural and ordinary course of affairs.</p> <p>Id.—Driving Vicious Horse—Extent op Warning.—An employer is not required- to give his employee minute directions as to the character of the danger he incurs in driving a vicious horse and the means of avoiding them, if any there be, when the employee himself has experience in such matters, and is as well acquainted with the dangers from such horses, and the means of escape or protection, as the employer whose duty it was to warn him.</p> <p>Id.—Knowledge by Employee of Vicious 'Character of Horse.—In this action by a driver of a wagon to recover damages for personal injuries resulting from a kick by a horse, the evidence shows that the plaintiff was fully informed that the horse was addicted to kicking and was, for that reason, a source of danger.</p>

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County admitting a will to probate. Fred H. Taft, Judge. The facts are stated in the opinion of the court.

<p>Workmen’s Compensation Act—Jurisdiction op Industrial Accident 'Commission—Error in Exercising Jurisdiction—Hearsay Evidence.—In, a proceeding before the Industrial Accident Commission to recover compensation for the accidental death of an alleged employee, where there is substantial evidence sufficient to establish the fact that the decedent received the injury in question while in the service of the defendant, and that it arose out of said-employment, the -admission of further incompetent hearsay evidence to prove the same facts would be mere error, which would not oust the commission of jurisdiction, nor justify a writ of review.</p>

<p>Contract — Installation of Fire-extinguishing Apparatus — Time of Performance—Verbal Agreement Varying Terms of Written Contract.—A written contract for the installation of an automatic fire-extinguishing apparatus in a factory, which specifies no-time for the completion of the work, is to be performed within a réasonable time; -and where the contract, by distinct and unequivocal language, prohibits any change or modification of its terms unless the same is indorsed in writing upon it by the president of the contractor, an agent of the contractor is without power by verbal agreement to vary the terms of the contract so as to provide for a shorter time for performance.</p> <p>Id.—Waiver of Agreement as to Time of Performance.—Such oral agreement is waived by the owner by his permitting the work to be started after the written contract was signed and several weeks after it should have been completed if the oral promise had been kept, and by subsequently paying an installment of the contract price.</p> <p>Id.—Reasonableness of Delay—Finding—Appeal.—Whether certain delays incident to the doing of the work were reasonable or not was a matter peculiarly for the trial court to determine, and its findings that they were reasonable, based on conflicting testimony, will not be disturbed on appeal.</p> <p>Id.—Destruction oe Building by Fire—Proximate Cause.—The incomplete condition of the fire-extinguishing plant at the time of the destruction of the building by fire is not the .proximate cause of the loss to the owner of the building.</p>

<p>Quieting Title — Action by Mortgagor — Lien or Mortgage Extinguished—Payment op Mortgage Debt.—Notwithstanding the lien of a mortgage has become extinguished, the mortgagor may not have his title to the mortgaged premises quieted as against the mortgagee, in an action brought under sections 749, 750 and 751 of the Code of Civil Procedure, without first paying the mortgage debt.</p> <p>Id.—Illegality op Consideration—Parties Equally in Fault.—The fact that the consideration of the mote secured by the mortgage was illegal because in violation of a statute, does not prevent the operation of such rule, where each of the parties was equally in fault.</p>

<p>Mechanics’ Liens — Pleading—Judgment on Pleadings — Insufficient Denial on Information and Belief.—Where the complaint by an original contractor to foreclose a mechanic’s lien is verified, and sets forth a cause of action based upon an express written contract to do the work for an agreed price, an answer which admits the execution of the contract, and the completion and acceptance of the work, and merely denies on information and belief that the amount claimed or any amount is or was its reasonable value, raised no issue, and judgment for the plaintiff on the pleadings was properly entered.</p> <p>Id.—Reasonable Value of Work—Original Contractor.—The provision of section 1183 of the Code of Civil Procedure that a mechanic’s or materialman’s lien shall not in any ease exceed the reasonable value of the work done and materials furnished, does not apply •to one contracting directly with the owner but has reference to subcontractors.</p> <p>Id.—Insufficient Denial of Performance.—An attempted denial in such answer that the plaintiff had duly kept and performed all the terms and conditions of the contract is insufficient, and amounts to an admission that substantially all of its terms and conditions have been duly met and executed.</p> <p>Id.—Knowledge of Construction—Acceptance of Work.—Land on which a building is erected is subject to a lien therefor, if the owner had knowledge of the construction, and failed to file the notice of disclaimer pursuant to section 1192 of the Code of Civil Procedure. The filing of such notice is matter of defense to an action to foreclose the lien, and in the absence thereof, the fact that the owner accepted the finished work is conclusive upon the question of his knowledge of the construction.</p> <p>Id.—Interest on Contract Price—Inclusion in Judgment.—In such action, interest on the contract price is recoverable only from the time when the price was payable by the terms of the contract. Interest accruing prior to the judgment should be added to the principal, and the aggregate amount should thereafter draw interest.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Robert L. Hargrove, G. J. Hely, John N. Anderson, and Frank Kauke, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Tucker, Kenyon & Macfarland, J. Z. Tucker, and White, Miller, Needham & Harber, for Appellants.</p>

<p>Negligence—Action fob Death—Improper Installation of Electric Appliances—Pleading—Sufficiency of Complaint.—In an action against a power company engaged in furnishing electricity to patrons by means of wires carrying heavy currents, for damages for the death of a patron who was receiving electricity to operate a pumping plant, where plaintiff’s theory was that defendant in the installing of the plant had employed dangerous and unsafe connections and a deficient ground wire, with the result that a high, dangerous, and excessive current was permitted to pass from the primary side of the transformer into the secondary side and so through a drop-cord, from which the deceased received a charge which caused his death, the complaint, setting forth that defendant improperly and carelessly constructed and installed transformers and ground wires, negligently and carelessly failed to use due care in selecting the proper materials, safety devices, and appliances for reducing the current upon the primary wires, and by reason of the fact that defendant had permitted the transformers, ground wires, and appliances to remain in a defective condition, a high and dangerous current of electricity was permitted to pass from the primary wires into the secondary wires and into the drop-cord and electric light which hung in the well-pit, is not ambiguous because the words “appliances” and “appurtenances” are used in the attempted descriptions of both the primary and secondary systems.</p> <p>Id.—Distinct Acts op Negligence—Pleading and Proof.—The complaint in such a case is not open to the objection that it is ambiguous, in that it cannot be determined therefrom whether the alleged negligence consisted in improperly installing transformers, ground wires, and appliances; in lack of care in selecting proper materials ■and safety devices; in improper construction and maintenance of transformers, etc., or in failing properly to operate, inspect, keep, and use the transformers, as the statement in a pleading of several distinct acts of negligence, proof of any one of which would entitle a pleader to a recovery, is not properly subject to demurrer for uncertainty or ambiguity, because the plaintiff may recover “upon proof of enough, to make a cause of action.”</p> <p>Tn.—Pleading Negligent Acts.—The complaint in such a case is not vulnerable to the objection that the particular acts constituting the negligence of defendant were not specified, as it is well settled in California that negligence may be charged in general terms; and it is only necessary to plead what was done and allege what was negligently done without stating the particular omission which made the act negligent, but it must appear from the allegations that the negligence caused or contributed to the injury.</p> <p>Id.—Defective Pleading—Fair Trial.—Where a case is tried upon a well-defined theory, ambiguities in the complaint are not ground for reversal where the litigant was not misled and the controversy was fairly determined upon its merits.</p> <p>Id. — Defense — Theory of Accident — Ability of Human Body to Receive Electricity—Admissibility of Evidence.—In such a case, where the defendant’s theory was that deceased fell from a ladder while he was .going down into the well-pit where the pump was located, and that he was either killed by the fall or by the long-continuous passage of 110 volts of electricity from the drop-wire through his body, there was no error in allowing a witness to testify, over defendant’s objection, that he had received a shock of 110 volts of electricity, the basis of the objection being that there was no similarity between the physical conditions of the- two men, because the evidence showed that a few months before" his death the deceased had been struck on the head and thereafter had been subject to headaches, hut there being testimony that just prior to his death the deceased had been in good physical condition and that his heart had been strong and normal at that time.</p> <p>Id.—Evidence—Condition of Ground Wire—Examination of Ten Days After Accident.—Testimony of an expert electrician regarding the condition of the ground wire when he examined it about ten days after the accident is not inadmissible on the ground that the time of the examination was too remote, as the objection goes more to the weight than to the relevancy of the testimony.</p> <p>Id.—Unchanged Condition of Apparatus—Presumption not Retroactive.—The presumption of unchanged condition is not retroactive in such a case, and the mere production of the pipe and wire would not prove that they were in the same state ten days after the accident as they were on that day, but where there was some evidence tending to show that no change had taken place during that interval, the evidence was admissible.</p> <p>Ib.—Theory of Accident—Sufficiency of Evidence.—In this case, the testimony entirely sustained the theory of plaintiff as to the manner of deceased’s death, and that it was caused by reason of the faulty and negligent installation and operation of the system in use at the pumping plant.</p> <p>Id.—Evidence—By-laws of Defendant—Inadmissibility of.—In such a case, defendant’s liability being based upon its negligence in putting in the pumping plant originally, there was no error in excluding from evidence the by-laws of the defendant offered for the purpose of showing that it was the deceased’s duty to care for the electric plant after its installation.</p> <p>Id.—When Verdict not Excessive.—A verdict of twelve thousand five hundred dollars for the death of á man leaving a widow and minor children and having a life expectancy of sixteen years, earning about fifty dollars a month during one-half of his working time, and the other half of his time being spent in conducting his ranch, is not excessive. The jury in such a case is also justified in considering the loss to the widow and minors due to the deprivation of the comfort, society, protection, and support of the husband and father.</p> <p>Id.—Mortality Tables—Instructions.—An instruction in such a case relative to the use of mortality or expectancy tables is not objectionable on the ground that it is applicable to the ease of a man in good physical condition, while the deceased was a victim of a recent injury which had impaired his health, where the physician who treated him at the time of the prior accident described him as a “strong, hearty man” when the accident resulting in his death occurred.</p> <p>Id.—Care Required by Company.—An instruction that a company engaged in furnishing that dangerous .commodity, electricity, is not an insurer, but where it affords “the means for the service,” it is required to use “very great care,” is not objectionable in the use of the expression “very great care”; nor is the instruction open to the criticism that it would lead the jury to believe that defendant owned and controlled all of the instrumentalities for the application of electric power, including the machinery and wires of the pumping station itself, where there was no question that defendant had installed the instrumentalities owned and used by the deceased, and in that sense had afforded means for the service.</p> <p>Id.—Care to be Used by Customer.—An instruction is not open to the objection that it failed to apprise the jury of the deceased’s duty to exercise ordinary care, where it stated that if by reason of defendant’s installation of dangerous connections and defective ground wires an excessive voltage of electricity was permitted to enter the drop-cord in the pit, and if plaintiff’s intestate, “while using ordinary care,” came in contact with the cord and was killed, plaintiff was entitled to recover.</p> <p>Id.—Burden op Proop—Doctrine op Res Ipsa Loquitur.—An instruction that if plaintiff had established by a preponderance of evidence the death of her decedent while he was exercising ordinary care, by an excessive and dangerous current furnished by defendant through the electric light wire, it then devolved upon defendant to show that the excessive voltage was not due to its negligence, does not unduly extend the doctrine of res ipsa loquitwr. It is the rule in this state that where electricity is furnished to a system installed and operated exclusively by the owner of the premises, the doctrine of res ipsa loquitur has no application. But where the defendant in such a case had some control of the situation either by reason of its construction or its operation of plaintiff’s plant, a showing of the accident without plaintiff’s fault shifts the burden of proof.</p> <p>Id.—Instruction on Section 3281, 'Civil Code.—An instruction in its material part quoting section 3281 of the Civil Code, defining damages, has no tendency to impress the jury with the idea that the defendant corporation was a law-breaker.</p> <p>Id.—Repeated Instructions on Damaqes — Lack op Error. — The criticism of the instructions in such a case that they unduly emphasized the matter of damages because seven of them made mention of that subject, although no objection to the substance is made, but merely that devoting so much attention to the matter of damages might well have led the jurors to believe that plaintiff was entitled to compensation, has no substantial merit.</p>

<p>Estate op Deceased Person—Probate Homestead—Separate Property.—Under sections 1465 to 1468 of the Code of Civil Procedure, the separate property of a decedent may ordinarily be set apart as a homestead to the surviving spouse or the children for a limited time only, to be determined by the court. When so set apart, the property remains subject to administration.</p> <p>Id._Construction op Will—Provision Without Dispository Force.—</p> <p>A provision in a will reading as follows: “To my beloved wife Margaret Krieg, I bequeath and devise the sum of thirty thousand dollars. This in addition to the real property now occupied by us as our home . . . together with all the furniture and household utensils therein contained to which she shall be entitled and which I hereby request the court to set apart to her and our minor child Lawrence as a homestead,”—does not devise the fee of such real property to the wife, and where the same was the separate property of the testator, it was properly set apart as a homestead to the wife and minor child for a limited time only.</p>

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

<p>Corporation Law — Subscriptions for Stock — Receipt of Secret Profits by President and Director—Right of Corporation to Recover.—Where an insurance corporation entered into a contract with certain persons employing them to secure subscriptions to the full amount of the fixed capital of the corporation within one year, paying thirteen dollars per share on the first fifty thousand shares and fifteen dollars per share on the remaining fifty thousand shares, and receiving as their compensation all sums they could obtain in excess of said amounts, and while said contract was unexecuted the president and director of the corporation secretly became a partner of the agents in the net profits received and to be received by them under said contract, the consideration therefor being such aid, assistance, and co-operation as he might be able to give them in completing their undertaking, and under this arrangement, while still director and president of the corporation, he received the profits to his own use, all without notice to or knowledge of the corporation or any of its directors, the president and director having placed himself in a position antagonistic, so far as pecuniary interest was concerned, to the interest of those who were to subscribe for the stock, cannot retain the secret profits received by him, and they may be recovered by the corporation.</p> <p>Id.—Damage to Corporation Immaterial—Secret Profits Owned by Corporation.—It is immaterial that the corporation may not have been damaged by the transaction, as such secret profits belong to the corporation for the benefit of its stockholders.</p> <p>Ib.—Defense—Value of Services Immaterial.—In an action by the corporation to recover the secret profits from the estate of the deceased president and director, the allegation in the answer that the “work, labor, services and assistance” of the president and director in connection with the carrying out of the agreement “were fairly end reasonably worth the said sum of $40,500,” is immaterial and properly stricken out.</p> <p>Id.—Duty op Directors—Promoters op Corporation—Not Entitled to Compensation.—It was the duty of the directors, imposed by law, to assist in obtaining subscriptions for stock, which duty was not lessened by the contract with the agents, and in the matter of obtaining the subscriptions they were practically promoters of the corporation, forbidden to make any secret profit, and whatever work any of them did in that behalf must be held to have been done in execution of the trust as director.</p> <p>Id.—Violation op Obligation by Officer—Recovery op Value op Services—Inapplicability op Rule to Secret Profits.—Where a corporation is simply seeking to recover such secret profits as were made by one of its officers in a transaction wherein he was forbidden to make any secret profits, and which secret profits belonged to the corporation, the rule that even if there be a violation of the obligation resting on an officer of a corporation, nevertheless the corporation must pay for the value of the thing which it received, has no application.</p> <p>Id.—Value op Services op President to Agents—Expenditures— Immateriality.—The value to the agents, in carrying out their contract, of the co-operation of the president and director, the reasonable value of his time and service in performing his part of his agreement with them, or even the amount of money expended by him for traveling and other expenses, are not material.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Warren Olney, Jr., W. H. Carlin, John S. Partridge, and A. R. Baldwin, for Appellant.</p>

<p>Negligence—Death or Brakeman—Contributory Negligence—Matter op Law.—Where the tracks of a railway company, for convenience in the handling of lumber, were sunken below the surface of a lumber-yard in a trench or pit or open subway to such depth that flat-cars on them were. about level with the lumber-yard floor, boxcars standing many feet above it, and across the pit there being a drawbridge which, when the railroad operations were not under way, was lowered to facilitate the transportation of lumber from one part of the yard to the other, the pit extending in an easterly and westerly direction, and the drawbridge in a northerly and southerly direction, and being hinged upon the southerly side, and at times when lifted sagging over the pit so as to be dangerously near the sides of passing box-cars, but not flat-cars, an experienced brakeman and member of a switching crew, whose duty it was to go upon the premises of the lumber company, place empty cars at desired positions when loading for the lumber-yard, and carry away on the main line the loaded cars, was guilty of contributory negligence, as a matter of law, which defeats a recovery for his death, in leaving a position of perfect safety on the open platform, on the north side of the track, at which point he could have performed his duty, and, as the engine with two flat-cars and one box-ear passed him, in running across the flat-car and attempting to climb a ladder on the box-car, in which position he was struck and killed by the drawbridge, the danger of which he had been familiar with for a long time and he being under no duty to leave his first station.</p> <p>Id.—Nonliability of Lumber Company—Obvious Danger—Safe Premises.—In such a ease the lumber company was not guilty of negligence, for even if the raised drawbridge could be said to be a danger, it was an obvious danger well known to the deceased and dangerous only to one recklessly attempting to mount the top of the box-car; and the lumber company owed the deceased no duty other than an exercise of reasonable care and caution to see that the premises were in safe condition.</p> <p>Id.—Recklessness of Deceased — Contributory Negligence — Question of Law.—While the question whether or not one has been guilty of contributory negligence is usually a question of fact for the jury, where the material facts were absolutely without conflict and showed that the deceased’s conduct amounted to recklessness directly contributing to his death, the question was one of law.</p> <p>Id.—Momentary Forgetfulness of Danger.—Momentary forgetfulness by the deceased of the danger occasioned by the drawbridge is no excuse for his conduct; and whether he was negligent in this regard, or in taking the chance and risk that he was agile enough to reach the top of the car before its ladder passed under the drawbridge, were not questions to be resolved by the jury.</p> <p>Id.—Safe Place to Work—'Choice of Dangerous Way.—It is a universal principle that when a safe way has been provided for an employee for the performance of an act, and another dangerous way exists, if the employee chooses to take the dangerous way and is injured, he is guilty of contributory negligence as a matter of law.</p> <p>Id.—Duty of Employer—Care Required.—It is not a part of the duty of the employer to furnish his employee with an absolutely safe place to work. It is to be reasonably safe so far as reasonable care can make it in view of the nature of the employment.</p> <p>Id.—Roseberry Act—Comparative Negligence.—The provision of the Roseberry Act (Stats. 1911, p. 796), that “the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison,” has no application where, if the employer was guilty of negligence at all, it waj extremely slight as compared with the very gross negligence of the employee.</p> <p>Id.—Verdict Against Law—Violation on Instructions.—Where a verdict rendered by a jury does violence to the instructions which the court gave the jury, it is against law.</p>

<p>Railroad Commission—Free Transportation by Railroads to Commission and Its Employees—Action by Stockholder to Enjoin— State Courts Without Jurisdiction.—In view - of the restrictive provisions of section 67 of the Public Utilities Act (Stats. 1915, p. 161), the superior court has no power, at the'instance of a stockholder of a railroad company, to enjoin the company and its directors from issuing and honoring free transportation over its lines in the state, in compliance with the requirements of section 11 of the act, to the railroad commission, its officers and employees, when traveling in the performance of their official duties.</p> <p>Id.—Official Duties of Commission.—The words “official duties,” as used in the provision of section 67 of the act, depriving the state courts, with the exception of the supreme court, to the extent therein specified, of jurisdiction to enjoin, restrain, or interfere with the . commission in the performance of its official duties, mean any duties defined by the act.</p>

<p>Dedication—City or Long Beach—Public Use—Conclusiveness or Judgment Quieting Title Against City.—In this action involving the ownership of a parcel of land in the city of Long Beach situated on the sand beach above the line of ordinary high tide, and claimed by the city under an alleged dedication to public use by a former owner, it is held that a judgment in a prior action quieting the title of the plaintiff’s predecessor in interest against the city’s claims for public purposes or otherwise, which was rendered in pursuance of an agreement for the settlement of that action, is conclusive upon the city and upon the public that the land is free from public use.</p> <p>Id.—Consent or Attorney to Judgment—Presumption or Authority. In the absence of any evidence of fraud or of want of authority of'the city’s attorney, the authority of such attorney to consent to the rendition of such judgment against the city is presumed.</p> <p>Id.—Grant op Tide-lands to 'City op Long Beach—Line op Mean High Tide.—The act of May 1, 1911 (Stats. 1911, p. 1304), whereby the state granted to the city of Long Beach, “all the tide-lands and submerged lands, whether filled or unfilled, within the present boundaries of said city, and situated below the line of mean high tide of the Pacific Ocean,” in trust for purposes of navigation, is a present grant and refers to conditions then existing, and does not convey to the city any land then situated above the mean high-tide line.</p> <p>Id.—Land Abutting upon Ocean—Accretions Belong to Owner.— The right of an upland owner to additions to his land by alluvion or accretions exists in this state where the land abuts upon the ocean. Section 1014 of the Civil Code has no application to alter the common-law rule in that respect.</p>

<p>Workmen’s Compensation Act—Laundry 'Corporation — Carpenter Employed to Repair Private House of Stockholder — Nonliability of Employer.—A corporation engaged in the principal business of running a laundry, but which was accustomed, as an accommodation to its stockholders, to send a carpenter, regularly employed by it, to make necessary repairs upon their private properties, is not liable, under the Workmen’s Compensation Act, for the death of a person whom it had employed as an assistant to such carpenter in doing a particular piece of repair work on the house of a stockholder, and who was killed while engaged in such work. Id.—Employment Casual and not in Usual Course of Employer’s Business.—The employment of such assistant was both casual and not in the usual course of the employer’s business, within the meaning of section 14 of the Workmen’s Compensation Act.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. B. Bosley, Thos. J. Straub, and L. T. Hatfield, for Appellant.</p>

<p>Lighting Districts — Unincorporated Towns and Villages — Agricultural Lands cannot be Included.—The act of March 20, 1909 (Stats. 1909, p. 551), authorizing unincorporated towns and villages to establish and maintain systems of street lights on public highways and providing for the formation of highway lighting districts, authorizes the formation of such districts only within the limits of an unincorporated town or village, and excludes from the territory of such districts large areas of land devoted exclusively to agricultural purposes and not coming within any definition applicable to towns or villages.</p> <p>Ib.—"Town” and “Village” Defined.—The word "town” means, in general, any large collection of houses and buildings, public and private, constituting a distinct place with a name and not incorporated as a city. There is no substantial difference between an unincorporated town and a village except that perhaps the latter is usually understood to be smaller than a town.</p> <p>' Id.—Agricultural Land Attempted to be Included in District—Corporation Void Pro Tanto.—A lighting district organized under such act, which attempts to include within its territory large areas of land devoted exclusively to agricultural purposes, is a void corporation so far as such land is concerned, and its managing board is without authority to exercise any of the powers given by that act and the amendments of 1913 thereto, over or upon such land.</p> <p>Id.—Effect of Curative Act—Jurisdictional Defects.—A curative act or a conclusive evidence clause in a statute is effective to cure all defects resulting from a failure to comply with provisions which are merely directory of the mode of the exercise of the power. But defects and omissions which go to the jurisdiction of the hoard to act at all, and which make their action absolutely void, cannot be cured in this manner.</p> <p>Id.—Local Taxing District—Fixing Boundaries—Hearing on Question of Benefits.—When the power to form a local taxing district is delegated to a local board or tribunal, it acts judicially in fixing the boundaries, and the parties whose lands are proposed to be included are entitled to a hearing upon the question of benefits, before the formation of the district, and to have their lands excluded if it appears that they are not benefited.</p> <p>Id. — Void Attempt to Form Lighting District — Prior Proceedings not Validated by Curative Act op 1915.—An attempt to form a lighting district under the act of 1909 is illegal and void, for the reason that the act gives to a designated number of taxpayers and residents of any unincorporated town or village the power to determine what land should be included in the district, without making any provision for inquiry as to benefits or change of the boundaries fixed by them in their petition, or for any hearing upon the subject; and the Curative Act of May 29, 1915 (Stats. 1915, p. 939), is ineffective to revive or validate the previous proceedings of a district so attempted to be formed.</p> <p>Id.—Validation op Illegal Tax—Due Process op Law.—The legislative attempt to validate a tax levied by a pretended corporation having no legal authority over the property taxed would, if given effect, be equivalent to the imposition of an obligation by statute without due process of law.</p>

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

<p>APPLICATION for a Writ of Mandate directed to the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>William M. Abbott, William M. Cannon, Clarence M. Oddie, and Morrison, Dunne & Brobeck, for Petitioners.</p>