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order for an extension of the time within which to prepare and serve a statement was signed at his home county within the 10 days by the judge who tried the case, and who resided in another county, at a considerable distance from that in which the action was tried, but through inadvertence on his part was not forwarded by him to the clerk of the court until after the expiration of 10 days, it was not an abuse of discretion to thereafter settle and allow the statement.
[Ed. Note.-For cases in point. see Cent. Dig. vol. 3, Appeal and Error, §§ 2503-2505.] 4. EVIDENCE-BEST EVIDENCE-DESTRUCTION.
Plaintiff, a part of whose land was overflowed by water from defendant's canal, thereafter in gathering the potatoes grown on the land mingled those gathered from the unflooded portion with those from the flooded portion, so that it was impossible to state which part of the entire crop was from the portion not flooded and which was from the flooded portion. There was testimony that the portion not flooded was not as well adapted to raising potatoes as the flooded portion, and that a comparison of the potatoes gathered on the two portions of the land showed that those from the unflooded portion were larger in size and more extensive in yield. Held, that the fact that plaintiff did not keep the potatoes separate did not prevent him from showing the yield on adjoining lands, on the ground that by mingling the potatoes he destroyed the best and most accurate evidence on the questions of quantity and quality.
5. SAME-SIMILAR FACTS-SHOWING VALUE.
In an action for the destruction of a crop of potatoes caused by the overflow of the land where same were raised, other potato raisers in the neighborhod, whose lands were similarly situated and of the same character of soil, and who were raising their potatoes under the same conditions, were properly permitted to testify as to the yield from their lands.
[Ed. Note. For cases in point, see Cent. Dig. vol. 20. Evidence, § 401.]
6. DAMAGES-GROWING CROPS-DESTRUCTION. The measure of damages for the destruction of a growing crop is the value of the crop in the condition it was at the time and place of destruction.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 2702.1
7. EVIDENCE COMPETENCY WATERS
In an action for the destruction of a crop of potatoes caused by the overflow of land wher they were planted, a witness was properly permitted to testify as to the crop gathered by him from the same land several years before the flood.
[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 434.]
Appeal from Superior Court, Merced County; Geo. E. Church, Judge.
Action by Howard Dennis against the Crocker-Huffman Land & Water Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Frank H. Farrar and James F. Peck, for appellant. J. K. Law and H. S. Shaffer, for respondent.
HART, J. This is an action for damages claimed to have been sustained by plaintiff by the destruction, through the alleged negligence of the defendant, of certain crops of sweet potatoes and beans while the same were under cultivation and growing on the
land of the respondent, and also for alleged injury to said land. It is alleged that the plaintiff, after all the necessary preparations therefor, in the year 1903, planted 10 acres of his land, situated in Merced county, in sweet potatoes and 3 acres thereof in beans; that "said crops grew well, and were cultivated, tilled, irrigated, and cared for by plaintiff at great expense, and were in fine growing condition and in high state of cultivation, and of great value until the damage thereto and destruction thereof caused by defendants as herein alleged, and would but for said damage and destruction have produced large and valuable crops of beans and sweet potatoes." The defendant is a corporation created, organized, and existing and operating its business under the laws of the state of California, and it is averred that it is and was, at and before the time at which this action was brought. the owner of and maintained, operated, and controlled, in the said county of Merced, in close proximity to the said land of plaintiff, a "canal or ditch into which and through and by means of which water has been conducted, collected, flowed, and carried and furnished to farmers and others by defendants, and in conjunction and connection with said canal cr ditch defendant has during all of said times owned, operated, maintained, and controlled, at a place thereon near plaintiff's said land, a headgate constructed and used to control and regulate the flow of water in and through said canal or ditch." It is alleged that in the month of July, 1963, and while the crops of potatoes and beans mentioned were growing on said land of plaintiff, the water in said canal washed out said headgate and portions of the banks of the canal, and flowed therefrom upon and over the said land and through and over the said crops of plaintiff, washing out and carrying away a large quantity of said land and the soil thereof, and damaging and destroying the said crops growing thereon. It is alleged that the damage to and destruction of plaintiff's said property in the manner and by the means thus charged was through "the gross and willful negligence of the defendant in failing to properly construct said canal or ditch and said headgate, and its gross and willful negligence in failing to properly maintain, care for, and control said headgate, and to care for, manage and control the water in said canal." The specific damages alleged to have been thereby suffered by the plaintiff are: (1) Because of the washing out and carrying away of a certain part of the land and soil thereof, $350. (2) For the damage to and destruction of the growing crop, $1,200, the total amount being $1,550, for which sum plaintiff prayed for judgment. A general and special demurrer to the complaint was overruled by the court. The answer makes general and specific denial (the complaint was verified) of all the material averments of the com
plaint. The cause was tried by a jury, and a verdict returned for the plaintiff for the sum of $500, and thereupon judgment entered in his favor for that amount. The appeal is fron the judgment, accompanied by a statement of the case.
1. It is insisted that the court should have sustained the demurrer to the complaint on the ground of uncertainty. The particular objection to the complaint in this particular is that the allegations charging the defendant with the negligence in the management, control and operation of its ditch and the headgate thereto, and through which it is claimed the destruction of plaintiff's crops and damage to his freehold was caused, are not sufficiently direct and specific. The rationale of the rule requiring certainty in pleading is that the opposing party may be made fully cognizant of the facts upon which the plaintiff relies and which the defendant must meet by denial or in avoidance. The complaint might perhaps have been more particular and direct in its averments as to the manner in which the defendant was guilty of the negligence charged against it, yet we think its allegations are sufficient, and that by them the defendant was fully notified of the facts it was required to answer or otherwise combat, as the exigencies of its defense might demand. Moreover, the answer specifically denies al the material averments, and thus the issues involving all the important questions which could arise were fairly made and squarely presented. Therefore, even if it were conceded that the court erred in its ruling on the demurrer, the same was cured by the full and complete denials of the answer. Besides, it is not every erroneous ruling of the trial court in this regard that demands a reversal of the judgment. Substantial injury to defendant must have resulted from the action of the court. Holland v. McDade, 125 Cal. 353. 58 Pac. 9; Jager v. Cal. Bridge Co., 104 Cal. 542, 38 Pac. 413; Stephenson v. Deuel, 125 Cal. 656, 58 Pac. 258; Williams v. Casebeer, 126 Cal. 77, 58 Pac. 380; Rooney v. Gray Bros., 145 Cal. 753, 79 Pac. 523; Code Civ. Proc. 475. The issuable facts having been tendered in such manner by the pleadings as to present for trial a clear-cut issue upon the two important questions of damage and negligence, the defendant could have suffered no injury, and, as the answer and the trial clearly attest, did not suffer any injury.
2. The defendant made a motion for a new trial upon the minutes of the court, and the same was denied. No appeal was taken from the order refusing a new trial. Objection is made by counsel for the respondent to the consideration upon this appeal of the statement of the case for the alleged reason "that the same was not served within the time allowed by law, and was received too late." It appears from the transcript that the motion for a new trial was denied by the court on the 28th day of December, 1905. On the 4th
day of January, 1906, the defendart prepared and forwarded to Hon. George E. Church, a judge of the superior court of the county of Fresno, who presided at the trial of this cause, a blank order and application for an extension of the time within which to prepare and serve his statement to and including the 29th day of January, 1906. Said blank order was received by Judge Church on the st 5th day of January, 1906, and on that day signed by him; but through inadvertence on the part of the judge the order was not forwarded to the clerk of the court in which the cause was tried until the 9th day of January, 1906, on which day the order was received by said clerk, and thereupon filed with the other papers as a part of the record of the case. It will thus be observed that while the order extending the time was signed by the judge before the expiration of the time within which, under the statute, the statement may be proposed and served, it did not become a matter of record until two days after the lapse of that time. It is contended by the respondent that, because the statement was not served within the ten days allowed by the express mandate of the statute, the judge lost jurisdiction to settle and allow the same, and that appellant should, in order to have been relieved of the default, have made application for such relief under section 473 of the Code of Civil Procedure, upon the ground of "mistake, inadvertence, surprise or excusable neglect." Several cases are called to our attention which, it is claimed, support the contention of respondent. But the cases cited, upon the facts, are not precisely in point, nor have we been directed to any cases where exactly the same state of facts marks the proceedings involving the proposal, service, settlement and allowance of the statement. In Vinson v. L. A. Pac. R. R. Co., 147 Cal. 483, 82 Pac. 53, where the defendant failed altogether to propose and serve the statement within the statutory time, and the court upon a showing of excusable neglect relieved him of his default by granting him further time within which to propose and serve such statement, the Supreme Court, speaking through Mr. Justice Angellotti, inter alia, says: "Whether or not the circumstances of a particular case are such that the mistake or inadvertence should be excused is a question thẹ determination of which must of necessity be left largely to the court to which application is made, and it is well settled that this court will not interfere with the exercise of the discretion of that tribunal, except in a case where a clear abuse of discretion is apparent. Particularly is this so where the discretion is exercised in favor of the granting of the relief sought, as such action tends to bring about a conclusion on the merits, which is always to be desired" -citing O'Brien v. Leach, 139 Cal. 220, 72 Pac. 1004, 96 Am. St. Rep. 105. In the case at bar it is patent that the failure to file the order
extending the time with the clerk of the court before the expiration of the time for the proposal and service of the statement expressly prescribed by the statute (section 661, Code Civ. Proc.) was not due to negligence on the part of the appellant or his counsel. Application for the extension was made and the order signed by the judge in ample time for the filing of the same before the lapse of the statutory period of 10 days. The fact, of which we are authorized to take judicial notice, that the judge who tried the case and to whom application was made for the extension of time resides in another and different county and a considerable distance from that in which the action was tried, and the further fact appearing in the record that he was at the time of such application at his own home, should also be considered in determining whether there was an abuse of discretion in the settlement and allowance of the statement. The statute in terms does not require an order extending the time within which to propose and serve a statement of the case to be filed, and, while we do not hold that the filing of such an order should not be made, we feel justified in declaring that, under all the circumstances shown by the record upon this point, there was no abuse of discretion by the judge in the settlement and allowance of the statement, but that under the principles announced in Vinson v. L. A. Pac. R. R. Co., supra, it was properly settled and allowed. Besides, we cannot see how the appellant could have based an application for "relief," if the circumstances with reference to the proposal and service of the statement show that "relief" of any kind was necessary, upon "accident, surprise, inadvertence or excusable neglect" upon his part, in view of the fact that the delay in filing the order was imputable to the oversight or inadvertence of the judge himself. Without attempting to decide what would be the proper legal course in such a case, it may be suggested that it would, indeed, be rather a severe rule which would prevent a litigant from exhausting every means made available to him by the law for a full and final determination of questions involving what are at least claimed to be his rights through a circumstance over which it is impossible for him to exercise the least control. There are some other technical objections to the consideration of the statement which we think need not be noticed.
3. According to the evidence, the banks of the defendant's ditch broke opposite the land of plaintiff and flooded all said land, except a small piece in the southwest corner of the lot, and embracing about one-half of an acre planted in sweet potatoes. The land had been irrigated twice, and cultivated the same number of times. The plaintiff testified that "there was a good average stand of potatoes" growing on the land at the time it was flooded. The plaintiff harvested the potatoes growing on the small portion untouched and
uninjured by the water, and also gathered a few potatoes from that part of the land inundated. After gathering the potatoes he mingled them together; that is, he placed the potatoes from the unflooded land with those gathered from the flooded portion, so that it was impossible for him when testifying to definitely state which part of the 44 crates he succeeded in harvesting was from the land not injured by the water and which part was gathered from the land thus injured. Plaintiff testified, however, that there were about three times as many potatoes to the hill grown upon and harvested from the land not flooded than were taken from the flooded land, and that they were much larger than those taken from the flooded portion. It is contended by the appellant that it was the duty of respondent to have kept the potatoes harvested from the flooded and unflooded portions, respectively, in separate and distinct lots, because approximately the exact quantity and quality of the damaged potatoes could then have been determined by the quantity and quality of the potatoes not damaged. It is argued that in thus mingling the potatoes respondent destroyed the best and most accurate evidence which could have been offered upon the questions of quantity and quality, and therefore should not have been permitted by the court to introduce evidence as to the quantity or extent of the harvest upon adjoining lands for the purpose of establishing the probable yield upon his land had the same been unimpaired or uninjured by the overflow water from the ditch. The contention is without substantial merit. The fractional portion of the land undisturbed by the overflow waters from the ditch is not, according to the testimony, as well adapted to sweet potato culture as the other or flooded portions, because the latter is lower in altitude and possesses a sandy soil peculiarly suitable for the growing of such crops. Therefore, to take the crop gathered from the higher land, not so productive as the other, as the criterion, would, of course, have been unfair and unjust. Besides, the testimony shows that the plaintiff, after the water had receded and disappeared from the land, harvested about 22 acres of the potatoes, the least damaged by the water, on the flooded land, and that a comparison in quantity and quality of the potatoes harvested on the two portions of the land-the part flooded and the part not flooded-showed that those from the latter portion were, as before stated, larger in size and more extensive in quantity. Other witnesses-farmers growing sweet potatoes on land in the neighborhood of the plaintiff's land, and which land is similarly situated and of the same character of soil and cultivated under the same conditions-were permitted to give testimony. without objection, as to the number of sacks of potatoes grown on their lands the year in which the damage here complained of was sustained, and also as to the average weight
of the sacks. This testimony was competent | time too remote from that at which the alleg. and relevant, because it tended to show what, under ordinary circumstances, would have been, in all probability, the yield of the crop but for the damage sustained by the overflow of the water from the ditch.
4. It is claimed that the court erred in admitting testimony as to the market value of sweet potatoes raised in the neighborhood of the plaintiff's land in the year in which the alleged damage was suffered. This testimony was, of course, directed to the question of the ascertainment of the value of the growing crop at the time of its alleged destruction. In the recent case of Teller v. Bay & River Dredging Company (Cal. Sup.) 90 Pac. 942, the Supreme Court declares that the true rule upon the point under consideration, as well as upon the character of the evidence generally which is admissible for the purpose of determining the amount of compensation which should be awarded in cases like the one at bar, is stated in the case of Lester et al. v. Highland Boy Gold Mining Company et al. (a Utah case), reported in 76 Pac. 341, 27 Utah, 470, 101 Am. St. Rep. 988, as follows: "In cases of destruction of growing crops, it is proper and important to introduce and admit evidence showing the kind of crops the land is capable of producing, the kind of crops destroyed, the average yield per acre of each kind on the land not destroyed and other similar lands in the immediate neighborhood, cultivated in like manner, the stage of the growth of the crops at the time of injury or destruction, the expense of cultivating, harvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or destruction of the crops, and, while all such evidence may be considered by the jury in determining the amount of damages, if any, still the true measure of compensation is the value of the crops in the condition they were in at the time of their injury or destruction." And the rule is so declared in Teller v. Bay & River Dredging Company, 2 Cal. App. Dec. 224; Shoemaker v. Acker, 116 Cal. 239, 48 Pac. 62, and Ellis v. Tone, 58 Cal. 289. The rule as thus enunciated answers many other objections urged by the appellant against the record in the case at bar, both as to evidence admitted and instructions given and refused by the court.
5. Evidence was offered and received for the purpose of showing that the land of respondent was peculiarly adapted to the cultivation of sweet potatoes. The appellant, in his answer, denies that the land in question ever produced at any time "any crops or crop of beans or sweet potatoes of any value whatever." The witness James was allowed to testify that several years previously to the year in which the alleged damage occurred he had planted a portion of said land in sweet potatoes, and had harvested therefrom seventy or eighty sacks to the acre. It is objected that this testimony related to a
ed injury was inflicted to render it admis sible in any view. The objection goes rather to the weight than to the competency and relevancy of the evidence. We think it was clearly proper as showing or tending to show that the soil of the land was of a nature which rendered it peculiarly suitable for the cultivation of potatoes, and for that purpose the land had special value. The fact that the land was profitably used for potato growing five or six or eight years previously to the year in which the damage was done bore directly upon its value for such purpose at the time of the injury or destruction.
Errors are assigned in the giving and the rejection of certain instructions by the court. We have examined with solicitous care the instructions presented to the jury by the court, and are of the opinion that the law upon all the vital points involved was fully and clearly declared.
We do not regard it necessary to notice all the points urged here involving criticism of the rulings of the court in the admission and rejection of evidence. It is sufficient to say that we have given the record careful consideration, and are convinced that it discloses no errors prejudicial to the defendant. The case seems to have been carefully and fairly tried, and the judgment is, in our opinion, just, and should not be disturbed.
The judgment is, therefore, affirmed.
We concur: CHIPMAN, P. J.; BURNETT, J.
(6 Cal. A. 5)
Ex parte ACKERMAN. (Cr. 48.) (Court of Appeal, Third District, California. June 20, 1907. On Rehearing, July 18, 1907.)
1. ANIMALS - LICENSES - ORDINANCES DOGS-REPEAL.
An ordinance imposing a license tax on the keeping of dogs is not repealed by implication. or a subsequent ordinance imposing a license tax on every kind of business authorized by law, all shows, etc.; no reference being made to the keeping of dogs.
2. MUNICIPAL CORPORATIONS-ORDINANCESREPEAL-How ACCOMPLISHED.
To accomplish the repeal of an ordinance, there must either be language employed expressly declaring such intention, or there must exist in the subsequent ordinance language so inconsistent with the provisions of the former as to necessarily effect a repeal by implication.
[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 268.] 3. STATUTES-REPEAL-How ACCOMPLISHED. To accomplish the repeal of a statute, there must either be language employed expressly declaring such intention, or there must exist in the subsequent statute language so inconsistent with the provisions of the former as to necessarily effect a repeal by implication.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 229.]
4. MUNICIPAL CORPORATIONS-ORDINANCESLICENSES-DOGS.
An ordinance imposing a license tax on and regulating the keeping of dogs is not incon
sistent with Pol. Code, § 3366, as amended in 1901, authorizing cities to license any kind of business not prohibited by law; the ordinance being one of police regulation, and the evident object of the Code being to restrict the power exercisable by municipalities to impose license taxes to the purpose of regulation only.
5. SAME POLICE POWER-NECESSITY FOR LEGISLATIVE AUTHORITY.
Municipalities need not look to the Legislature as the source of their power to enforce local, police, sanitary, and other regulations deemed needful for their welfare and that of their inhabitants, since Const. art. 11, § 11, expressly vests in them plenary power to enforce such police, sanitary, and other regulations as they may determine shall be necessary for health, peace, comfort, and happiness of the inhabitants, provided such regulations do not conflict with general laws; and the Legislature may not limit the exercise of such power.
[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1308.] 6. ANIMALS-LICENSES-ORDINANCES-DOGS.
An ordinance imposing a license tax on the keeping of dogs is not invalid for unreasonableness or uncertainty in not fixing any particular time at which the tax must be paid, and in not defining the term "current year.' 7. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-LICENSES.
An ordinance imposing a license tax on the keepers of dogs is not invalid for unreasonableness and as providing for the taking of property without due process of law, because providing for the destruction of a dog upon which no license tax has been paid two days after the dog had been impounded unless it has been redeemed, without notifying the owner.
[Ed. Note. For cases in point. see Cent. Dig. vol. 10, Constitutional Law, § 831.]
An ordinance requires keepers of dogs to pay the town marshal an annual license tax, and to attach a seal or device to the dog's collar. provides that the marshal shall seize and impound any dog upon which a license shall have not been paid, and that at the end of two days no person claiming such dog and paying the license therefor, the marshal shall destroy such dog, and provides that every person violating the ordinance shall be guilty of a misdemeanor, etc. Held, that the ordinance is not objectionable as uncertainly stating what specific acts shall constitute a violation thereof, as not certainly showing whether one accused must violate all or only a part of the provision of the ordinance before he can be adjudged guilty, as authorizing the marshal to commit a trespass by going on the premises of a citizen without a warrant or other process.
9. MUNICIPAL CORPORATIONS-POWER TO IMPOSE LICENSE TAX ON DOGS.
A municipality may impose a license tax upon dogs as an incident of the regulation of their management or control.
10. SAME ORDINANCE-CONSTRUCTION.
An ordinance providing that the owner of a dog upon the payment of a required license tax shall attach to a collar to be worn by the dog a seal or device as evidence of the dog's ownership and of the payment of the tax, providing for destruction of dogs upon which the tax has not been paid, and providing a penalty for noncompliance with its terms, is an exercise of the police, and not the taxing power. 11. ANIMALS-DOGS-REGULATION-POWER OF STATE.
The power of the state to regulate the control or use of dogs is not dependent upon the question whether they are property.
Application of Walter Ackerman for a writ of habeas corpus. Petitioner remanded. J. W. Preston, for petitioner. A. J. Thatcher, for respondent.
HART, J. The petitioner was arrested and is detained in custody by the city marshal of the town of Ukiah, under a warrant of arrest issued upon a complaint filed in the recorder's court of said town, charging him with a misdemeanor under the provisions of an ordinance designated and known as "Ordinance No. 15" of said city of Ukiah, passed by the board of trustees thereof on the 14th day of November, 1887. It is alleged in the petition for the release of petitioner upon habeas corpus that the complaint upon which the warrant of arrest was issued against the prisoner "does not state a public offense or any offense whatever either against the laws of the state of California or against any or either of the ordinances of the town of Ukiah City." Among the particular objections urged against the ordinance, the provisions of which petitioner is charged with having violated is the contention that said ordinance "is invalid and void for the reason that the same has been repealed by section 3366 of the Political Code and also by the provisions of Ordinance No. 119 of said Ukiah City," and, furthermore, that said ordinance "is illegal and void for the reason that the same is ambiguous and uncertain upon its face and is also uncertain in its terms." The ordinance reads as follows, after the title and enacting clause:
"Section 1. Every person who owns or harbors a dog within the limits of the town of Ukiah City, shall pay to the marshal of said town an annual license therefor of two dollars.
"Sec. 2. It shall be the duty of the marshal to collect the same, and to deliver to the person paying the same a license, which shall describe said dog, together with a seal or device impressed thereon, which the owner shall attach to a collar to be worn by said dog.
"Sec. 3. It shall be the duty of the marshal to seize and impound any dog owned or harbored within the corporate limits of such town on which such license shall not have been paid.
"Sec. 4. At the end of two days, no person claiming said dog, and paying the license therefor, or producing a license showing previous payment for the then current year, the marshal shall destroy and bury such dog.
"Sec. 5. Every person who shall wilfully and knowingly violate this ordinance shall be guilty of a misdemeanor, and upon convic tion thereof shall be punished by a fine of not less than ten, nor more than fifty dollars, or by imprisonment not exceeding fifty days, or by both such fine and imprisonment."
The sixth and last section of the ordinance provides that certain fees shall be paid to the