As

ine, but that it was from six to ten feet west thereof, and at the place where his employés were engaged in building the fence when they were arrested. In view of this condition of the testimony, it is insisted that the instruction as given was erroneous, because it did not confine plaintiff's right to build the fence on the true line, or on his own side thereof, and, although plaintiff may actually have been engaged in constructing a fence on the defendants' land, and therefore a trespasser, the defendants would be liable if the jury found that the fence was approximately on the line. This criticism is, in our opinion, well taken. Plaintiff had no right or authority to construct a fence on the premises of the defendants, and it is a matter of no consequence whether he was ten feet or only one foot over on their land. a matter of fact, there was a distance of only from six to ten feet between the lines contended for by the respective parties, and under this instruction it was practically left to the jury to determine whether a fence constructed on the line contended for by the plaintiff, if not the true line, would be approximately so; in other words, the jury could have found that as a matter of fact the line was as contended for by the defendants, and that plaintiff's employés were engaged in building a fence six feet over on their land, and yet have found a verdict in favor of the plaintiff, if, in its opinion, the proposed fence was "approximately" on the true line. "Approximately" simply means "nearly" or "closely"; so the jury could properly have found that the proposed fence was on the defendants' land, and yet, under the rule of law as given, they would be liable. The true location of the boundary line was evidently an important feature in the case, and it would have been no proof of the cause of action alleged in the complaint if the plaintiff was arrested or prevented from building the fence any distance whatever from the line and on the defendants' land. The instruction as given was not a definite and certain guide to the jury, but left it to determine what would satisfy the requirement that the fence must be approximately on the true line.

Because of the error in the instruction given the judgment must be reversed, and a new trial ordered.

(136 Cal. 481)

HAGGIN et al. v. KELLY et al. (Sac. 889-923.) (Supreme Court of California. June 5, 1902.) EJECTMENT-PLEADINGS-NATURE OF ACTION -RIGHT TO JURY TRIAL.

tiffs' title, and asserted an abandonment by plaintiffs and relocation by themselves. Held, that the action was at law, the equitable relief of the restraining order not changing its nature, and the prayer for a permanent injunction being unnecessary, so that plaintiffs were entitled to a jury, and to judgment in accordance with their verdict.

2. By the direct provisions of Code Civ. Proc. 738, either party to an action to determine adverse claims to realty is entitled to a jury trial as a matter of right.

Department 2. Appeal from superior court, Mono county; W. H. Virden, Judge.

Action by J. B. Haggin and others against J. A. Kelly and others. From a judgment for Reversed. defendants, plaintiffs appeal.

Deal, Tauszky & Wells and Richard S. Miner, for appellants. Wm. O. Parker, for respondents.

HENSHAW, J. Plaintiffs averred ownership and right of possession in a certain min-` ing claim; that defendants are in possession of the property, and wrongfully and unlawfully withhold the same; that they have taken and are taking large quantities of gold and silver ore therefrom; that plaintiffs have demanded of defendants that they desist from mining the claim and from taking and removing the ore, but they refuse to do so, and threaten to continue their mining operations. Plaintiffs are unable to determine how much gold and silver defendants are taking or will take from the mine. Defendants are insolyent, and plaintiffs will suffer great and irreparable damage. The prayer was for an inJunction enjoining and restraining defendants during the pendency of the action from mining on said claim, and from taking and removing ore therefrom, and that on the final hearing the injunction be made permanent; for restitution of lands and mining claim, and for costs of suit. The answer of defendants consisted of a denial of the ownership of plaintiffs; an admission that they are in possession, coupled with a denial that they are wrongfully or illegally in possession, and a denial that they have taken any gold or silver bearing ore from the claim. For a separate defense they aver that the annual work required by the mining laws of the United States and of the state of California for the year 1898 was not done and performed upon the mining claim by the plaintiffs, and that on the 1st day of January, 1899, the mining claim and premises were open public land of the United States, subject to location under the mining laws of the United States; that on the 3d day of January, 1899, the defendants relocated the claim. For still another defense the defendants pleaded that plaintiffs had abandoned their claim. Tria! was had upon the issues thus joined. A jury was impaneled, and the court, at the suggestion of defendants' counsel, ruled that the case was a case in equity, and not one in law, and that the jury was impaneled only for the purpose of advising the court upon the issues of fact. To this ruling plaintiffs,

this is an action at law. The court further directed the attorneys for the respective partles to present special issues based upon the pleadings in the case for the jury to determine. At the conclusion of the trial special issues were submitted to the jury, which issues covered all the material and disputed matters. The findings of the jury upon these special issues were wholly favorable to plaintiffs, and were sufficient, had they been accepted by the court, to have entitled plaintiffs to the judgment which they sought. The court, however, still treating the action as one in equity, disregarded these special issues, and in lieu of them prepared its findings and conclusions of law favorable to defendants, and entered judgment for them accordingly. From this judgment, and from the order of the court refusing plaintiffs a new trial, they have appealed.

The action is one at law, and is in form ejectment. The essential allegations necessary to such an action are the estate of plaintiffs, possession by defendants at the commencement of the action, and their wrongful withholding of the same. Payne v. Treadwell, 16 Cal. 220, 244, 245. Even if regarded as an action under section 738 of the Code of Civil Procedure, still plaintiffs were entitled to a jury. Gillespie v. Gouly, 120 Cal. 515, 52 Pac. 816. The equitable relief of a restraining order against waste during the pendency of the litigation did not change the nature of the action, but was ancillary merely, and permissible under the pleading. Water Co. v. Clarkin, 14 Cal. 544; Curtis v. Sutter, 15 Cal. 259; Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 642. The added prayer of the complaint that upon the conclusion of the trial the temporary injunction be made permanent was unnecessary and superfluous. If plaintiffs established their claim, defendants would be ousted, and they would be restored to possession and there would be no occasion for a permanent injunction. Upon the complaint, therefore, the action was simply one in ejectment, with the request for a restraining order against waste pending the litigation. Turning to the answer, the special defenses are purely legal in character. They admit the earlier right and title in plaintiffs, but seek to show that that title was lost, first by forfeiture, and second by abandonment. No equitable issues are presented. No equitable relief is sought. The prayer of the answer is simply that the plaintiffs take nothing, and that defendants have judgment for their costs. The court was in error, therefore, in treating the action as equitable. Plaintiffs were entitled to the verdict of the jury, unless set aside under the provisions of section 662 or 657 of the Code of Civil Procedure.

The judgment and order are therefore reversed, and the cause remanded for a new trial.

INGS-PRIMA FACIE CASE-IRREGULARI

TIES-PETITION-APPEAL.

1. In an action by a county to condemn land for a road, the introduction of a petition to the supervisors for the laying out of the road, with a bond for the costs and expenses of viewing and surveying, accompanying the same; the record of the appointment of, viewers; their report, and its approval by the board, and the assessment of damages; the order of the board that the damages assessed and awarded be set apart in the treasury out of the proper fund; and proof that the same was set apart more than 10 days prior to the commencement of the action, but had not been accepted, made a prima facie case for plaintiff.

2. Under Pol. Code, § 2690, declaring that in an action to condemn land for a public road no informality in the proceedings of the board of supervisors shall vitiate the suit, but the order of the board directing the district attor ney to bring suit shall be conclusive proof of the regularity thereof, failure of the viewers to report as to the cost of the road upon the route proposed in the petition, as required by Pol. Code, § 2686, and defects in the form of the bond presented with the petition, the form of the clerk's notice to landowners, the form of the viewers' report, or the manner in which they performed their duty, are not defenses to an action to condemn land for a public road; the decision of the supervisors as to the sufficiency and regularity of the preliminary proceedings being a final judgment, not subject to collateral attack.

3. Approval by the supervisors of a bond accompanying a petition for the laying out of a road is equivalent to a declaration that the sum named in the bond is double the amount of probable cost as required by statute.

4. The sufficiency of a petition for the laying out of a road was not impaired by its asking the abandonment of an old road as well as the laying out of the new one.

5. Objections to the sufficiency of the complaint could not be considered on appeal from an order denying a new trial.

Department 1. Appeal from superior court, Sutter county; E. A. Davis, Judge.

Action by Sutter county against J. B. Tisdale and others. Judgment for plaintiff, and from an order denying defendants' motion for a new trial they appeal. Affirmed.

Forbes & Dinsmore, for appellants. A. C. McLaughlin, Dist. Atty. (M. E. Sanborn and Lawrence Schillig, of counsel), for respondent.

HARRISON, J. The district attorney of Sutter county brought the present action under the direction of the board of supervisors of that county to procure by condemnation the right of way for a public road that the board of supervisors had determined should be laid out over the lands of the defendants. The action was tried by the court without a jury, and upon its findings of fact judgment was rendered in favor of plaintiff, The present appeal is from an order denying defendants' motion for a new trial.

At the trial the plaintiff introduced in evi

dence a petition to the board of supervisors to lay out the road, together with a bond accompanying the same for the payment of the costs and expenses of viewing and surveying the route; the record of the board showing the appointment of viewers; the report of the viewers, and its approval by the board, and the assessment of damages; the order of the board that the amount of damages assessed and awarded be set apart in the treasury of the county out of the proper fund, to be paid to the respective owners; that the same was set apart for that purpose more than 10 days prior to the commencement of this action, and that the appellants had not accepted the same. This evidence, in the absence of any evidence countervailing or impeaching the same, made out a prima facie case, under which the plaintiff was entitled to a judgment of condemnation. Siskiyou Co. v. Gamlich, 110 Cal. 94, 42 Pac. 468; Sonoma Co. v. Crozier, 118 Cal. 680, 50 Pac. 845; Sutter Co. v. McGriff, 130 Cal. 124, 62 Pac. 412. In their statement of the case the appellants do not claim that the evidence is insufficient to sustain the findings, but specify certain errors of law as the ground of their motion, and urge the same upon the present appeal. In their report to the board of supervisors the viewers stated that upon a survey and examination of the route proposed for the road they found the general route to be good, but that some parts were impracticable, and that they had located a route for the road near the one proposed, which they recommended for adoption. They reported upon the feasibility and cost of the route proposed by them, but did not report upon the cost of the road over the proposed route. The appellants urge that the provision in section 2686 of the Political Code, requiring the viewers to report to the board of supervisors "the course, termini, length, and probable cost of construction of the proposed road," is mandatory, and that their failure to report these facts is fatal to the proceedings. Section 2685 of the Political Code provides that the viewers "must view and lay out the proposed alterations or new road, over the most practicable route, and in the performance of this duty they shall be required to make the proposed alterations, or new road, over the same lands mentioned in the petition, but shall not be confined to any particular route indicated therein." And subdivision 6 of section 2686 declares that "they may also, in their discretion, report upon the feasibility and cost of any other route than the one petitioned for, which 'would subserve the same purposes." The authority to lay out and open a new road has been intrusted by the legislature to the board of supervisors of each county, and the determination by that body that the public necessity requires a road to be laid out between two designated points, as well as the particular route of such road, is legislative

in its character, and not open to review in an action like the present. The provision in the Code for the appointment of viewers, and for their report, as well as the direction that notice shall be given to the landowners of the hearing upon this report, are for the purpose of giving information to the supervisors upon the subject of the petition, and to aid them in reaching an intelligent determination upon the subject of laying out the road; but their determination thereof is final, and cannot be questioned upon the ground that it was not authorized by the evidence before them. Certain preliminary steps are to be taken before an action for condemnation can be maintained against nonconsenting landowners, but in such action this determination of the board of supervisors is to be regarded as a final judgment in another proceeding before a competent tribunal, and is not subject to a collateral attack. Humboldt Co. v. Dinsmore, 75 Cal. 604, 17 Pac. 710; Siskiyou Co. v. Gamlich, 110 Cal. 94, 42 Pac. 468; Levee Dist. No. 9 v. Farmer, 101 Cal. 178, 35 Pac. 569, 23 L. R. A. 388. This rule is incorporated in section 2690 of the Political Code, which declares that in the action for condemnation "no informality in the proceedings of the board shall vitiate said suit, but the said order of the board directing the district attorney to bring suit shall be conclusive proof of the regularity thereof." Under this rule the failure of the viewers to report upon the cost of the road upon the route proposed in the petition, the form of the bond which was presented with the petition, the form of the clerk's notice to the landowners, the form of the report by the viewers, the manner in which the viewers performed their duty, became immaterial, and evidence in reference thereto, as well as the evidence offered by the defendants for the purpose of showing how far the route reported varied from the route proposed in the petition, was properly excluded by the court.

The bond accompanying the petition was for the sum of $100, and is conditioned for the payment of "all the costs of viewing and surveying the proposed road prayed for." Its approval by the board of supervisors was equivalent to a declaration by that body that the sum named therein was double the amount of such probable cost. The petition to the board of supervisors was admissible under the allegations of the complaint. Its sufficiency, as well as its admissibility, was not impaired by the fact that, in addition to asking that a new road be laid out, it also asked that the old road be abandoned.

The question asked of the witness Ashley with reference to the levee, under some conjectured action that the county might thereafter take, was irrelevant to any question before the court, and the answer thereto was properly excluded.

The objections to the sufficiency of the

PASSENGER ON STREET

FOR

RAILROAD-ACTION

INJURIES-INSTRUCTIONS-NEW TRIAL

-REVIEW-CONFLICTING EVIDENCE.

1. Where, in an action by a passenger against a street railroad company for personal injuries alleged to be due to defendant's negligence, it was conceded that plaintiff was not at fault, and there was substantial evidence, though conflicting, to show that the injury was incurred through the negligence of a motorman, an instruction that, under the case and proofs, no presumption of negligence arose against defendant from the mere fact that an accident had occurred, violated the constitutional provision forbidding a charge "with respect to matters of fact."

2. Where the action of the trial court in granting a new trial is based on a substantial conflict in the evidence, it will not be disturbed.

Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Kate Sullivan against the Market Street Railway Company for personal injuries. There was a judgment for defendant, and from an order granting a new trial it appeals. Affirmed.

P. F. Dunne, for appellant. Walter H. Linforth, for respondent.

VAN DYKE, J. This is an appeal from an order granting a new trial. The order reads as follows: "In this action, the plaintiff's motion for a new trial herein having been argued and submitted, now, by the court, it is ordered that said motion be, and the same is, hereby granted, for the reason only that the court erred in giving, as modified, defendant's instruction relative to the presumption of negligence, being the instruction to which plaintiff's exception No. 7 was reserved in the statement on motion for new tria! herein." The modified instruction referred to reads: "In an action against a railroad company for an injury under the case and proofs as here made, no presumption of negligence arises against the defendant from the mere fact that an accident has occurred."

The plaintiff was a passenger on a Valencla street car, going west, and was sitting on the right hand side of the dummy in the last seat towards the closed portion of the car. A dump cart with two men in it was traveling along the road in the same direction as the car, partly on or near the track, and on the right hand side thereof. The gripman saw the cart and sounded his gong, 'Rehearing denied July 5, 1902.

"pinioned" her almost instantaneously. It seems to have been conceded that there was no fault or negligence, on the part of the plaintiff, and the real question was whether it was through the negligence of the driver of the cart or of the motorman on the car that the injury occurred; and the testimony seems to have been substantially conflicting upon this point.

By the above instruction, the judge in effect said to the jury that, in his opinion, there was not sufficient evidence to establish the charge of negligence against the defendant, and thus violated the provision of the constitution forbidding him to charge the jury "with respect to matters of fact." Upon his attention being called thereto, upon the motion for a new trial, he very properly set the verdict aside.

Moreover, the instruction is practically the equivalent of a direction to the jury to find for the defendant, and evidently they so understood it; and unless the testimony in favor of the contention, on the part of the plaintiff, that it was the fault of the motorman that the accident occurred, was SO slight as not to justify the case being submitted to the jury, the instruction should not have been given. The judge of the court below, therefore, in granting a new trial must have been of the opinion that there was sufficient testimony in favor of the plaintiff to justify the case being submitted to the jury. To reverse the order of that court, under the circumstances, this court would have to hold, against the opinion of the trial judge, that the testimony was insufficient to warrant the case going to the jury. This brings the case within the general rule that the appellate court will not disturb the action of the trial court based upon a substantial conflict in the evidence. Order appealed from affirmed.

We concur: HARRISON, J.; ROUTTE, J.

GA

(136 Cal. 484)

FREE GOLD MINING CO. v. SPIERS et al. (L. A. 963, 964.) (Supreme Court of California. June 5, 1902.) RECEIVER OF MINING COMPANY-PURCHASE OF MACHINERY-EX PARTE ORDER-JURISDICTION-TIME FOR APPEAL.

1. By virtue of its jurisdiction over the parties to an action brought by a mining company

and its previous appointment of a receiver for | the plaintiff, the court had jurisdiction to direct the receiver to purchase machinery on his ex parte application therefor, and without notice to the parties to the action.

2. Any error committed in directing a receiver of plaintiff, a mining company, to purchase machinery, as well as in any preliminary or subsidiary order leading thereto, including the sufficiency or character of the notice or of hearing on the receiver's application, can be reviewed only after the settlement of the receiver's account and the entry of final judgment.

Department 1. Appeal from superior court, San Diego county; E. S. Torrence, Judge.

Action by the Free Gold Mining Company against James Spiers and others. A petition filed by Frank A. Gibson, intervener, against an application by a receiver of plaintiff corporation for an order directing him to purchase machinery, was struck out on motion of plaintiff, and the order allowing it to be filed was set aside, and the court refused to hear his answer to the receiver's application, which was thereupon granted. Intervener thereupon appeals from the orders thus made. Dismissed.

jurisdiction over the parties, and the previous appointment of the receiver, the court had jurisdiction to give the direction to the receiver upon his ex parte application therefor, and without notice to the parties to the action (see Beach, Rec. § 272); and any error that it may have committed in giving such direction, as well as in any preliminary or subsidiary order leading thereto, including the sufficiency or character of the notice, or of the hearing upon the receiver's application, can be reviewed only after the settlement of the receiver's account and the entry of final judgment. Upon the settlement of his account the parties interested therein will be at liberty to contest its correctness. They may acquiesce in his report or account, or they may be satisfied with the action of the court upon their objections thereto, but until that court has made some order thereon it cannot be determined whether any party interested is aggrieved thereby, and entitled to an appeal.

The appeals are dismissed.

We concur:

HARRISON, J. At the commencement of the present action a receiver was appointed to take possession of, and, under the direction of the court, to manage, the property described in the complaint. The receiver afterward applied to the court for an order directing him to purchase and install a cyanide plant upon the property. Prior thereto, apparently in anticipation of such application, the appellant herein, who is not named as a party to the action, having obtained from the court an ex parte order therefor, filed a petition styled by him a complaint in intervention, against permitting the receiver to incur any indebtedness for this purpose. When the receiver's application came on for hearing, the court, upon the motion of the plaintiff, struck out the appellant's petition, and set aside its order permitting the same to be filed. The appellant thereupon filed an auswer to the receiver's application, and upon the motion of the plaintiff the court refused to hear his opposition thereto. Upon hearing the application of the receiver the court granted the same, the plaintiff consenting thereto. and the defendants making no objection. The present appeals are from these orders of the court.

In the case of Mining Co. v. Spiers (L. A. 939) 67 Pac. 61, which involved an appeal from the same order to the receiver, it was held that the order could not be reviewed until after a final judgment in the action. Under the principles of the opinion in that case the orders are not appealable, and the present appeals are premature. By virtue of its

VAN DYKE, J.; GA

(136 Cal. 499) BURNELL v. SAN FRANCISCO SAV. UNION. (S. F. 1,992.) (Supreme Court of California. June 7, 1902.) BANK OFFICER-RECEIPT OF DEPOSIT-AUTHORITY-EVIDENCE-BANK'S LIABILITY. 1. Whether an officer of a bank had power to bind it by the acceptance of a deposit, with instructions as to its distribution, is to be determined by a consideration of his relation to the bank, and the principles governing the same, and not by the mere opinion of a witness, such as the cashier and secretary, as to the legal effect of that relation.

2. A debt to a bank was secured by a deed of trust which named an officer thereof as trustee. The latter generally attended to its loans, and in the course of such business received a check from an intending purchaser of the property for more than the amount of the debt, and signed a reconveyance of the property to the parties. The transaction was had and the check delivered to him across the counter and at the desk or window where such transactions were ordinarily had; and he was instructed to deduct the amount of the debt, and hold the balance on deposit for the debtor. He handed the check to a teller, and the money therefor was received by the bank. He was authorized to sign and indorse checks and sign certificates of deposit in the absence of the cashier, and in this case issued a certificate to the debtor's husband for the balance due her, and afterwards paid the same to the husband's order. Held, that he was authorized to receive the deposit, and the bank was accordingly liable for the money received for the debtor, and which it had never paid to her.

Department 1. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.

Action by Charles S. Burnell against the San Francisco Savings Union, a corporation. From a judgment for plaintiff, and from an