improve the land. What right had plaintiff to make any objection to such acts of Alemany and defendant? And of what avail would such objection have been? The parties were only exercising each his own rights, which rights, so acted on and exercised, plaintiff also knew did not in the least affect or impair his rights.

The failure of plaintiff to object did not affect defendant's rights. Defendant was not deceived in any way. He was permitted to exercise his rights without molestation by plaintiff. How anything like estoppel can be predicated of plaintiff's conduct does not appear.

We think it clearly follows that the plaintiff and defendant became tenants in common of the land in suit (Stark v. Barrett, 15 Cal. 363), the plaintiff's interest being two fifths and the defendant's three fifths thereof; and that plaintiff is entitled to recover his property (Carpentier v. Webster, 27 Cal. 524), unless a further contention of defendant can be maintained. This contention we proceed to consider.

Bishop Amat became a corporation sole in 1870. He filed his articles of incorporation in the office of the county clerk of Monterey County, in the year just named, and filed a certified copy of those articles, so filed in Monterey County, in the office of the county clerk of the county of Santa Barbara, before this action was commenced. The original articles of incorporation were never filed in the county of Santa Barbara, nor has a copy of the copy of the articles of incorporation filed in the office of the secretary of state, certified by said secretary, ever been filed in the office of the county clerk of Santa Barbara County.

The contention of defendant is, that as a certified copy of the copy of the articles of incorporation filed in the office of the secretary of state has never been filed in the county clerk's office for Santa Barbara County, plaintiff cannot maintain this action.

As the legislation of this state stood in 1870, when the

corporation plaintiff was formed, the filing of the articles of incorporation was only required to be made with the county clerk of the county where the church or other religious society or association was situated. (See Stats. 1850, p. 374; Act of 1850, sec. 177; Stats. 1854, p. 53, sec. 2, amending sec. 184 of Act of 1850.)

In 1853 an act was passed providing for the formation of manufacturing, mining, and trading corporations, and by this act it was provided that the certificate of incorporation (articles of incorporation) should be filed in the office of the county clerk, etc., and a duplicate of the same filed in the office of the secretary of state. (Stats. 1853, p. 37, sec. 2.) Religious corporations were not referred to in this act, and it had no application to them. Such corporations were not affected by this act. The law as to them remained unchanged.

Has the law as to such corporations ever been changed? It is said that it has, by the provisions of the Civil Code, and we are referred to section 299 of that code.

It is clear on a perusal of the section referred to (Civ. Code, sec. 299) that it refers only to corporations whose articles had been required by the statute to be filed with the secretary of state. This is so evident from reading needless to further elaborate the

the section that it is question.

The law at no time required such corporation as is involved in this case, formed previous to the code, to file its articles of incorporation, or a copy or duplicate thereof, in the secretary of state's office. As to such a corporation formed since the code went into effect, we say nothing.

We are fully convinced that the contention of defendant under discussion cannot be maintained, and that the court below erred in rendering judgment for defendant on its finding of facts.

We remark, further, in relation to the partition of the rancho by Amat and Alemany, that, conceding the de

LXXXIII. CAL.-2

fendant had an equity to have the tract conveyed to him by Alemany set apart to him on a partition of the rancho, such equity may still exist and be enforced in an action for a partition. This equity, if it exists, entitles the defendant to have his interest set apart out of the share of Alemany. The partition made certainly does not affect defendant, as he was no party to it. As the facts appear in this case, defendant can have no right to have his interest taken from the share of Mora.

The judgment is reversed and cause remanded, with directions to the court below to enter judgment for plaintiff for his undivided two fifths interest in the tract in controversy.

So ordered.

SHARPSTEIN, J., and MCFARLAND, J., concurred.

Hearing in Bank denied.

[No. 13183. Department Two.-February 1, 1890.] EDWARD F. VAUGHN ET AL., RESPONDENTS, v. THE CALIFORNIA CENTRAL RAILWAY COMPANY, APPELLANT.

NEGLIGENCE-MASTER AND SERVANT-ASSUMPTION OF RISK-CONSTRUCTION TRAIN-REPAIRING WASHOUTS.-When an employee of a railroad company accepts employment upon a construction train for the purpose of finding and repairing washouts caused by a severe storm, with a knowledge of all the facts, and of the purpose for which the train started, he assumes the extra hazardous risks of such employment; and there can be no recovery for injuries or death occasioned in the course of such employment, if no negligence appears on the part of the railroad company in the selection of employees in charge of the train, or in the careless running of such train. ID. CONFLICT OF SPECIAL WITH GENERAL VERDICT.-In such case, special findings by the jury that the railroad company exercised ordinary care and prudence in selecting the servants in charge of the train, and that the accident was not proximately caused by the negligence of any of its servants, are in conflict with a general verdict

for the plaintiff, which cannot stand, though the complaint charges negligence in constructing and maintaining the road, as well as in the running of the train and in the selection of employees, since there is nothing left of the complaint and evidence to warrant the general verdict, in view of the circumstances.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

A. Brunson, Charles R. Redick, and Brousseau & Hatch, for Appellant.

Stephenson & Harris, and Byron Waters, for Respond

ents.

MCFARLAND, J.-Pierce B. Vaughn, a young man about twenty-seven years old, was killed by an accident on the railroad of the corporation defendant; and this action was brought by his father and mother (as heirs) to recover damages for his death under section 377 of the Code of Civil Procedure. The verdict and judgment went for plaintiffs. Defendant appeals from the judg ment, and from an order denying a new trial.

The jury, in addition to a general verdict, returned answers to a large number of special issues submitted to them; and appellant contends (among numerous other points) that the general verdict is in conflict with the findings on the special issues, and therefore cannot stand. We think appellant right in this contention.

Paragraph 4 of the complaint is as follows:

"That on January 4, 1888, said Pierce B. Vaughn, while so engaged in such service of the defendant, was being carried upon a work train of defendant upon such railway in this county, when, owing to the negligent and defective manner in which the track and road-bed of such railway had been originally constructed and subsequently maintained by said defendant, and at a point about one mile west of North Cucamonga station,

the said road-bed was, and had been for many hours before, for a distance of thirty feet along the track, washed out, and by the negligence of the defendant, the same was so allowed to remain in an unsafe condition till the accident complained of occurred."

Paragraph 5 is as follows:

"That notwithstanding said unsafe condition of said track, the defendant, without exercising any care in the running of said train, and without exercising any care to discover the unsafe condition of its track, and by its negligence in the running of said train at a reckless and fast rate of speed along and over said defective track, caused said train to be wrecked and ditched at such washout, thereby, without any fault on the part of said Vaughn, causing said Vaughn to be instantly killed."

An amendment to the complaint contains the following averments:

"8. That at the time of said wreck and of the killing of said Vaughn, and continuously for more than ten days prior thereto, James McKenna was the section foreman of the defendant, and in that capacity had charge of the defendant's railroad track and road-bed where said washout and wreck occurred, and for several miles along the track on each side thereof, but that he was neither properly qualified nor competent, nor was sufficiently skillful, to perform his duties as such section foreman; and the defendant neglected to use ordinary care in selecting him as such section foreman.

the conductor of said train But he was neither prop

"9. That Edson Long was at the time it was wrecked. erly qualified or competent, nor of sufficient skill, to perform his duties as such conductor, and the defendant neglected to use ordinary care in selecting him as such conductor.

"10. That, at the time aforesaid, A. Jones was the engineer of the said work train, but he was neither properly qualified or competent, nor of sufficient skill,