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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, $$ 2.503–2505.] 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. Diy. vol. 15, Damages, $ 27012.] 7. EVIDENCE COMPETENCY WATERS OVERFLOW-INJURIES-DAMAGES.

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. Yote. For cases in point, see Cent. Dig. vol. 20, Evidence, $ 431.]

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.

land of the respondent, and also for alleged injury to suid 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 tine 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 a verred 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 bas 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, 1903, 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 cual, and flowed therefroin 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 mauner and by the means thus charged was through “the gross and willful negligence of the defendant in failing to pri perly 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, $330. (2) For the damage to and destruetion of the growing crop, $1,200, the tutal amount being $1,-1.71), for which sum plaintiff prayed for judgment. A general and special demurrer to the complaint was overruled by the court. The answer makes general ml specific denial (the complaint was veritied) of all the material averments of the com

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IIART, 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 beins while the same were under cultivation and growing on the

plaint. The cause was tried by a jury, and day of January, 1906, the defendart prepared a verdict returned for the plaintiff for the and forwarded to Ilon. George E. Church, a sum of $300, and thereupon judgment enter- judge of the superior court of the county of ed in his faror for that amount. The ap- Fresno, who presided at the trial of this peal is fro:n the judgment, accompanied by cause, a blank order and application for an a statement of the case.

extension of the time within which to pre1. It is insisted that the court should have pare and serve his statement to and including sustained the demurrer to the complaint on the 29th day of January, 1906. Said blank the ground of uncertainty. The particular order was received by Judge Church on the objection to the complaint in this particular 5th day of January, 1906, and on that day is that the allegations charging the defend- signed by him; but through inadvertence on ant with the negligence in the management, the part of the judge the order was not forcontrol and operation of its ditch and the warded to the clerk of the court in which headgate thereto, and through which it is the cause was tried until the 9th day of claimed the destruction of plaintiff's crops January, 1906, on which day the order was and damage to his freehold was caused, are received by said clerk, and thereupon filed not sufficiently direct and specific. The with the other papers as a part of the record rationale of the rule requiring certainty in of the case. It will thus be observed that pleading is that the opposing party may be while the order extending the time was made fully cognizant of the facts upon which signed by the judge before the expiration the plaintiff relies and which the defendant of the time within which, under the statute, must ineet by denial or in avoidance. The the statement may be proposed and served, complaint might perhaps have been more it did not become a matter of record until particular and direct in its averments as to two days after the lapse of that time. It is the manner in which the defendant was contended by the respondent that, because guilty of the negligence charged against it, the statement was not served within the ten yet we think its allegations are sufficient, days allowed by the express mandate of the and that ly them the defendant was fully | statute, the judge lost jurisdiction to settle notified of the facts it was required to an- and allow the same, and that appellant swer or otherwise combat, as the exigencies should, in order to have been relieved of the of its defense might demand. Moreover, the default, have made application for such reanswer sprucifically denies al the material lief under section 173 of the Code of Civil averments, and thus the issues involving all Procedure, upon the ground of "mistake, inthe important questions which could arise advertence, surprise or excusable neglect." were fairly made and squarely presented. Several cases are called to our attention Therefore, even if it were conceded that the which, it is claimed, support the contention court erred in its ruling on the demurrer, of respondent. But the cases cited, upon the the same was cured by the full and com- facts, are not precisely in point, nor have we plete denials of the answer. Besides, it is been directed to any cases where exactly the not every erroneous ruling of the trial court same state of facts marks the proceedings inin this regard that demands a reversal of volving the proposal, service, settlement and the judgment. Substantial injury to defend- allowance of the statement. In Vinson v. L. ant must have resulted from the action of A. Pac. R. R. Co., 147 Cal. 483, 82 Pac. 53, the court. Holland v. McDade, 125 Cal. 353, where the defendant failed altogether to pro59 Pac. 9; Jager v. Cal. Bridge Co., 104 Cal. pose and serve the statement within the 542, 38 Pac. 413; Stephenson v. Deuel, 125 statutory time, and the court upon a showing Cal. 656, 58 Pac. 258; Williams v. Casebeer, of excusable neglect relieved him of his de126 Cal. 77, 58 Pac. 380; Rooney v. Gray fault by granting him further time within Bros., 145 Cal. 753, 79 Pac. 523; Code Civ. which to propose and serve such statement, Proc. $ 475. The issuable facts having been the Supreme Court, speaking through Mr. tendered in such manner by the pleadings Justice Angellotti, inter alia, says: “Whethas to present for trial a clear-cut issue upon er or not the circumstances of a particular the two important questions of damage and case are such that the mistake or inadvertnegligence, the defendant could have suffered ence should be excused is a question the no injury, and, as the answer and the trial determination of which must of necessity clearly attest, did not suffer any injury. be left largely to the court to which ap

2. The defendant made a motion for a new plication is made, and it is well settled that trial upon the minutes of the court, and the this court will not interfere with the exsame was denied. No appeal was taken from ercise of the discretion of that tribunal, the order refusing a new trial. Objection is except in a case where a clear abuse of dismade by counsel for the respondent to the cretion is apparent. Particularly is this so consideration upon this appeal of the state- where the discretion is exercised in favor of ment of the case for the alleged reason that the granting of the relief sought, as such the same was not served within the time action tends to bring about a conclusion on allowed by law, and was received too late." the merits, which is always to be desired" It appears from the transcript that the mo- -citing O'Bried v. Leach, 139 Cal. 220, 72 Pac. tion for a new trial was denied by the court on 1004, 90 Am. St. Rep. 103. In the case at bar the 28th day of December, 1905. On the 4th it is patent that the failure to file the order extending the time with the clerk of the uninjured by the water, and also gathered a court before the expiration of the time for few potatoes from that part of the land che proposal and service of the statement ex- inundated. After gathering the potatoes he pressly prescribed by the statute (section 661, iningled them together; that is, he placed the Code Civ. Proc.) was not due to negligence potatoes from the unflooded land with those on the part of the appellant or his counsel. gathered from the fiooded portion, so that it Application for the extension was made and was impossible for him when testifying to the order signed by the judge in ample time definitely state which part of the 4+ crates for the filing of the same before the lapse of he succeeded in harvesting was from the land the statutory period of 10 days. The fact, of not injured by the water and which part was which we are authorized to take judicial no- gathered from the land thus injured. Plaintice, that the judge who tried the case and to tiff testified, however, that there were about whom application was made for the exten- three times as many potatoes to the hill sion of time resides in another and different grown upon and harvested from the land county and a considerable distance from that not flooded thau were taken from the flooded in which the action was tried, and the fur- land, and that they were much larger than ther fact appearing in the record that he was those taken from the flooded portion. It is at the time of such application at his own contended by the appellant that it was the home, should also be considered in determin- duty of respondent to have kept the potatoes ing whether there was an abuse of discretion harvested from the flooded and unflooded porin the settlement and allowance of the state

tions, respectively, in separate and distinct ment. The statute in terms does not require lots, because approximately the exact quanan order extending the time within which to tity and quality of the damaged potatoes propose and serve a statement of the case could then have been determined by the quanto be filed, and, while we do not hold that tity and quality of the potatoes not damaged. the filing of such an order should not be It is argued that in thus mingling the potamade, we feel justified in declaring that, un- toes respondent destroyed the best and most der all the circumstances shown by the rec- accurate evidence which could have been ord upon this point, there was no abuse of offered upon the questions of quantity and discretion by the judge in the settlement and quality, and therefore should not have been allowance of the statement, but that under permitted by the court to introduce evidence the principles announced in Vinson v. L. A. as to the quantity or extent of the harvest Pac. R. R. Co., supra, it was properly settled upon adjoining lands for the purpose of estaband allowed. Besides, we cannot see how lishing the probable yield upon his land had tbe appellant could have based an application the same been unimpaired or uninjured by for "relier," if the circumstances with refer- the overflow water from the ditch. The conence to the proposal and service of the state- tention is without substantial merit. The ment show that "relief" of any kind was fractional portion of the land uudisturbed by necessary, upon "accident, surprise, inad- the overflow waters from the ditch is not, vertence or excusable neglect" upon his part, according to the testimony, as well adaptel in view of the fact that the delay in filing to sweet potato culture as the other or floodthe order was imputable to the oversight or ed portions, because the latter is lower in inadvertence of the judge himself. Without altitude and possesses a sandy soil peculiarly atteinpting to decide what would be the prop- suitable for the growing of such crops. er legal course in such a case, it may be sug- Therefore, to take the crop 'gathered from gested that it would, indeed, be rather a the higher land, not so productive as the severe rule which would prevent a litigant other, as the criterion, would, of course, have from exhausting every means made available been unfair and unjust. Besides, the testito him by the law for a full and final de- mony shows that the plaintiff, after the termination of questions involving what are water had receded and disappeared from the at least claimed to be his rights through a land, harvested about 21,2 acres of the potacircumstance over which it is impossible for toes, the least damaged by the water, on the him to exercise the least control. There are flooded land, and that a comparison in quan: some other technical objections to the con- tity and quality of the potatoes harvested on sideration of the statement which we think the two portions of the land-the part flooded need not be noticed.

and the part not flooded-showed that those 3. According to the evidence, the banks of from the latter portion were, as before stat. the defendant's ditch broke opposite the land ed, larger in size and more extensive in of plaintiff and flooded all said land, except quantity. Other witnesses-farmers growing a small piece in the southwest corner of the sweet potatoes on land in the neighborhood lot, and embracing about one-half of an acre of the plaintiff's land, and which land is planted in sweet potatoes. The land had similarly situated and of the same character been irrigated twice, and cultivated the same of soil and cultivated under the same connumber ef times. The plaintiff testified that ditions-were permitted to give testimony. "there was a good average stand of potatoes" without objection, as to the number of sacks growing on the land at the time it was flood- of potatoes grown on their lands the year ed. The plaintiff harvested the potatoes in which the damage here complained of was growing on the small portion untouched and 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, ed injury was inflicted to render it admis. under ordinary circumstances, would have sible in any view. The objection goes rather been, in all probability, the yield of the crop to the weight than to the competency and but for the damage sustained by the over- relevancy of the evidence. We think it was flow of the water from the ditch.

clearly proper as showing or tending to show 4. It is claimed that the court erred in ad- that the soil of the land was of a nature mitting testimony as to the market value of which rendered it peculiarly suitable for the sweet potatoes raised in the neighborhood of cultivation of potatoes, and for that purpose the plaintiff's land in the year in which the the land had special value. The fact that the alleged damage was suffered. This testimony land was profitably used for potato growing was, of course, directed to the question of five or six or eight years previously to the the ascertainment of the value of the grow- year in which the damage was done bore ing crop at the time of its alleged destruc- directly upon its value for such purpose at tion. In the recent case of Teller v. Bay & the time of the injury or destruction. River Dredging Company (Cal. Sup.) 90 Pac. Errors are assigned in the giving and the 912, the Supreme Court declares that the true rejection of certain instructions by the court. rule upon the point under consideration, as We have examined with solicitous care the well as upon the character of the evidence

instructions presented to the jury by the generally which is admissible for the purpose court, and are of the opinion that the law upof determining the amount of compensation on all the vital points involved was fully which should be awarded in cases like the and clearly declared. one at bar, is stated in the case of Lester et We do not regard it necessary to notice all al. v. Highland Boy Gold Mining Company et the points urged here involving criticism of al. (a Utah case), reported in 76 Pac. 341, the rulings of the court in the admission and 27 Utah, 470, 101 Am. St. Rep. 988, as fol- rejection of evidence. It is sufficient to say lows: "In cases of destruction of growing that we have given the record careful concrops, it is proper and important to introduce sideration, and are convinced that it discloses and admit evidence showing the kind of crops no errors prejudicial to the defendant. The the land is capable of producing, the kind of case seems to have been carefully and fairly crops destroyed, the average yield per acre tried, and the judgment is, in our opinion, of each kind on the land not destroyed and just, and should not be disturbed. otber similar lands in the immediate neigh- The judgment is, therefore, affirmed. borhood, cultivated in like manner, the stage of the growth of the crops at the time of

concur: CHIPMAN, P. J.; BURinjury or destruction, the expense of cultivat- NETT, J. ing, barvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or

(6 Cal. A, 5) destruction of the crops, and, while all such

Ex parte ACKERMAN. (Cr. 48.) evidence may be considered by the jury in de

(Court of Appeal, Third District, California.

June 20, 1907. On Rehearing, July termining the amount of damages, if any,

18, 1907.) still the true measure of compensation is the

1. ANIMALS - LICENSES ORDINANCES value of the crops in the condition they were Dogs-REPEAL. in at the time of their injury or destruction." An ordinance imposing a license tax on the And the rule is so declared in Teller v. Bay

keeping of dogs is not repealed by implication, & River Dredging Company, 2 Cal. App. Dec.

or a subsequent ordinance imposing a license

tax on every kind of business authorized by 224 ; Shoemaker v. Acker, 116 Cal. 239, 48 law, all shows, etc.; no reference being made: Pac. 62, and Ellis v. Tone, 58 Cal. 289. The

to the keeping of dogs. rule as thus enunciated answers many other

2. MUNICIPAL CORPORATIONS-ORDINANCESobjections urged by the appellant against the

REPEAL-How AOCOMPLISIIED.

To accomplish the repeal of an ordinance, record in the case at bar, both as to evidence there must either be language employed expressadmitted and instructions given and refused ly declaring such intention, or there must exist by the court.

in the subsequent ordinance language so incon5. Evidence was offered and received for

sistent with the provisions of the former as to

necessarily effect a repeal by implication. the purpose of showing that the land of

(Ed. Note.--For cases in point, see Cent. Dig. respondent was peculiarly adapted to the vol. 36, Municipal Corporattons, $ 268.] cultivation of sweet potatoes. The appellant, 3. STATUTES-REPEAL-How ACCOMPLISHED. in his answer, denies that the land in ques- To accomplish the repeal of a statute, thern tion ever produced at any time "any crops or

must either be language employed expressly decrop of beans or sweet potatoes of any value

claring such intention, or there must exist in

the subsequent statute language so inconsistent whatever.” The witness James was allowed with the provisions of the former as to necesto testify that several years previously to sarily effect a repeal by implication. the year in which the alleged damage oc- [Ed. Note.-For cases in point, see Cent. Dig. curred he had planted a portion of said land

vol. 44, Statutes, $ 229.] in sweet potatoes, and had harvested there

4. MUNICIPAL CORPORATIONS-ORDINANCES

LICENSES-Dogs. from seventy or eighty sacks to the acre. It

An ordinance imposing a license tax on is objected that this testimony related to a and regulating the keeping of dogs is not incon

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Application of Walter Ackerman for a writ of habeas corpus. Petitioner remanded.

J. W. Preston, for petitioner. A. J. Thatcher, for respondent.

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. 3. 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 conAlict 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 ('orporations, § 1308.] 6. ANIMALS-LICEXSES-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.) 8. ANIMALS-LICENSES-Dogs.

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.

On Rehearing. 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.

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

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, wbich 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 convie 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

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