Action by surviving husband of defendant's testatrix against him and her sole surviving child to quiet the alleged title of plaintiff to a certain lot of land in the city of Oakland. Judgment and decree in favor of defendants. The plaintiffs moved for a new trial, on the grounds: 1. Insufficiency of the evidence to justify the judgment, decree, and findings, and that it is against law; 2. Errors in law occurring at the trial, and excepted to by plaintiff.

The motion was made upon a statement of the case, a bill of exceptions, and the minutes of the court.

The record before us contains a statement on motion for new trial. There is no copy of a bill of exceptions or of the minutes of the court.

The particulars in which the evidence was insufficient to justify the judgment and findings are specified as follows:

"1. The evidence shows that the property was conveyed to Mrs. Maguire during coverture, for money consideration, which raised the presumption that it was common property, and no evidence whatsover was introduced to show that any of the moneys paid for said property was not the common property of the parties to the marriage.

"2. No evidence was offered to show that the property was acquired by said Rosa Barker as her separate property, or that it was acquired by any money other than

common money.

"3. The evidence shows that the estate was common property.

"Errors in law occurring at the trial, excepted to by the plaintiff.

"The court erred in holding that the property was not the common property of Maguire and wife."

The error of law specified is, that "the court erred in holding that the property was not the common property of Maguire and wife.”

The evidence contained in the statement is as follows:

"Plaintiff took the stand and testified:

"I married the mother of the defendant, Peter Maguire, on the 21st of September, 1868, in Oakland. Her maiden name was Rose Barker. Defendant Peter Maguire is my only child, and is the issue of said marriage.'

"Plaintiff introduced in evidence a deed in writing of the premises in suit, dated the 10th of November, 1869, from James De Fremery to Rose Maguire, wife of (plaintiff) John Maguire, whereby said James de Fremery, in consideration of the sum of five dollars ($5), gold coin, to James De Fremery in hand then paid by the said Rose Maguire, granted, bargained, sold, remised, conveyed, and quitclaimed to her, said Rose Maguire, the premises in suit, and which deed was recorded at the request of A. G. Lawrie, November 15, 1869, at 8:32 A. M., in Liber 48 of Deeds, pp. 313 and 314, in Alameda County recorder's office.

"Plaintiff rests.

"Defendant offers in evidence a deed from the same James De Fremery to the same woman, Rose Barker, dated 19th of September, 1868, of the premises in suit, whereby said James De Fremery, for and in consideration of the sum of five hundred dollars, gold coin of the United States, to him in hand then paid by said Rose Barker, granted, bargained, sold, conveyed, and confirmed to her, said Rose Barker, the premises in suit, and which deed was recorded at the request of A. G. Lawrie, November 15, 1869, at 8:30 A. M., in Liber 48 of Deeds, pp. 310, 311, in same recorder's office."

The evidence shows beyond a doubt that the lot in controversy was the separate property of Rose Maguire at the time of her death. The conveyance of De Fremery to her before her marriage with the plaintiff is conclusive upon that point. The subsequent conveyance to her by the same grantor did not affect the title conveyed

in the former deed. It certainly did not change the character of the property from separate to community property.

Being unable to discover any sufficient ground for granting a new trial, the order granting it must be reversed.

Order reversed.

MCFARLAND, J., and THORNTON, J., concurred.

[No. 12574. In Bank.-June 6, 1888.]

CALIFORNIA CENTRAL RAILWAY COMPANY, RESPONDENT, v. GEORGE F. HOOPER ET AL., DAVID L. GARDNER ET AL., APPELLANTS.

EMINENT DOMAIN-CONDEMNATION OF RIGHT OF WAY FOR RAILROADCONSOLIDATION OF RAILROADS-SUBSTITUTION OF NEW COMPANY.Where a railroad corporation, pending a proceeding instituted by it for the condemnation of land for the use of its road, becomes consolidated with other similar corporations, the new corporation thus created may be substituted in place of the original plaintiff, and thereafter the proceeding may be prosecuted in its name and for its benefit.

ID. SPECIAL ISSUE-RECALLING JURY-DISCRETION.-In such a proceeding, it is not an abuse of discretion for the court to refuse to recall the jury, after they had retired for deliberation, for the purpose of submitting to them a special issue which is embraced within another issue already submitted to them. ID.—INSTRUCTION-REVIEW OF ABSENCE OF EVIDENCE.—In the absence of the evidence, the relevancy and propriety of an instruction which the court refused to give cannot be reviewed on appeal. Id.—StatemenT BY COURT AS TO EFFECT OF EVIDENCE.-Where the court in its instructions states that evidence has been offered tending to prove a particular fact, it will be presumed, in the absence of the evidence, that its effect was as stated by the court.

ID. NECESSITY AS TO PARTICULAR ROUTE-OTHER ROUTE EQUALLY GOOD.-A particular route, sought to be condemned by a railroad company for the use of its road, is not rendered unnecessary by reason of the existence of another route equally good and convenient both .for the property owner and the company. ID.--DESCRIPTION OF ROUTE-SUFFICIENCY OF.-The complaint in a proceeding to condemn a right of way for a railroad company must contain a description of each piece of land sought to be taken, and

whether the same includes the whole or only part of an entire tract; and the judgment must be so far certain as that the parties, and any ministerial officer who may be called on to enforce it, may know what land is to be taken and paid for. Tested by these rules, the description in the present case, held, insufficient.

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

The action was brought to condemn a right of way for a railroad. Judgment was entered in favor of the plaintiff, from which, and from an order refusing them a new trial, the defendants David L. Gardner and John R. Bleeker appealed. The further facts are stated in the opinion of the court.

A. B. Hotchkiss, for Appellants.

A. Brunson, and John D. Works, for Respondent.

MCKINSTRY, J.-The action was originally brought by the San Diego Central Railroad Company, a corporation, to condemn for a public use certain real property. After the commencement of the action, it was made to appear to the satisfaction of the superior court that the San Diego Central Railroad Company had consolidated all its franchises, properties, rights, and privileges with several other railroad corporations, and that the consolidation had by articles of agreement incorporated under the name and style of the California Central Railway Company; and thereupon the court ordered that the California Central Railway be substituted as plaintiff in the action, in the place of the San Diego Central Railroad Company. (Civ. Code, sec. 473.)

Of course an order ex parte, substituting one person for another as plaintiff, is not conclusive upon the defendant. But here the regularity of the consolidation, as a consolidation, is not denied. It is, however, disputed that, as a matter of law, the new plaintiff acquired

any right to prosecute the action by virtue of the consolidation and order of the court.

The articles of consolidation constituted the new articles of incorporation to be filed. (Cal. S. R. R. Co. v. S. P. R. R. Co., 67 Cal. 59.)

It is contended by appellant that when the San Diego Central Railroad Company was amalgamated with other companies, the San Diego Central "died," and the proceedings died with it,-that the cause of action did not survive the existence of the corporation which began it.

The constitution of Ohio of 1851 prohibited special acts of incorporation, and provided, "corporations may be formed under general laws, which [general laws] are subject to alteration or repeal by the legislature."

In Shields v. Ohio, 95 U. S. 319, it was held: Where a railroad corporation, created by special act, prior to the taking of effect of the constitution of 1851, voluntarily consolidated with another company, under a general law, after the adoption of that constitution, the new corporation created by the consolidation was subject to the provisions of the constitution above referred to, and derived its powers and franchises from the general laws; and accordingly that the new corporation could not charge more than a limited freightage, fixed by an amendment of the general laws, although the consolidated company, created prior to the constitution of 1851, was originally authorized by its charter to charge "reasonable" rates. In that case it was said it was a condition precedent to the existence of the new corporation that the old ones should first surrender their vitality, and submit to dissolution. Shields v. Ohio is cited by counsel for appellantas bearing upon the present controversy.

Since the organization of the state government of California, corporations have been formed, and legally can only have been formed, under general laws. None of the corporations merged in the California Central had any other powers or franchises than are enjoyed by it.