by him, and not included in the application of defendant. But there was no contest as to that eighty-acre tract, and the court had therefore no jurisdiction to determine the plaintiff's rights to it. The judgment was necessarily limited to the land in contest, and could determine nothing in regard to land not in contest." The court therefore erred in sustaining the demurrer to the first defense set forth in the answer.

It is claimed by respondent that an application for purchase under the act cited can be contested only by actual settlers, but we do not so construe the law. It is nowhere provided in the act that the land shall be sold only to actual settlers. It is provided in section 4 that during 90 days after filing the application it cannot be approved, and “meanwhile the land shall be subject to the adverse claim of any actual settler who resided thereon when the said application was filed." The above provision was only intended for the purpose of giving those who were actual settlers at the time the application was filed the preferred right to purchase. Section 1 of the act prescribes the conditions which entitle a party to purchase, and any applicant to purchase may show in a contest that he possesses the qualifications which entitle him to purchase, and that the party with whom he is contesting does not possess the requisite qualifications. The right to contest follows from the right of a qualified applicant to purchase. McFaul v. Pfankuch, 98 Cal. 400, 33 Pac. 397.

Respondent further claims that his application cannot be contested on the ground that his affidavit to purchase was false for the reason that section 3500 of the Political Code provides that "any false statement contained in the affidavit provided for in section 3495 defeats the right of the applicant to purchase the land, or to receive any evidence of title thereto." Section 3495 refers to school lands, and hence it is argued that the falsity of the affidavit as to the class of lands referred to in the act in question is not ground of contest. We do not so construe the statute. The provisions of section 1 as to what shall be stated in the affidavit certainly mean that the affidavit must be true; otherwise the mere making of an affidavit stating the matters enumerated in the statute would entitle the party to purchase, even if every statement therein were false. In such case there could be no contest, and every person making the requisite affidavit could purchase regardless of his qualifications. The quoted provision of section 3500 of the Political Code was placed there by amendment in March, 1885, and it was uniformly held prior to that time that the affidavit required by the statute as a prerequisite to purchase must be true. Gavitt v. Mohr, 68 Cal. 511, 10 Pac. 337; Mosely v. Torrence, 71 Cal. 319, 12 Pac. 430; Harbin v. Burghart. 76 Cal. 120, 18 Pac. 127; Plummer v. Woodruff, 72 Cal. 29, 11 Pac. 871, 13

Fac. 51; Taylor v. Weston, 77 Cal. 535, 20 Pac. 62.

We

The second defense states that in December, 1898, one Bunner filed his application in due form to purchase from the state a part of the lands described in plaintiff's application. It is not stated as to whether or not the lands described in the application of Bunner were described in the application of Flora M. Sherman, but, as the contest and judgment in the case of Sherman v. Wrinkle are referred to, we will presume that the lands described in Bunner's application were the lands, or a portion of the lands, in contest in the case of Sherman v. Wrinkle. cannot tell, without the aid of a surveyor, by the descriptions in the applications, whether they were or not; and, if they were not, it was incumbent upon defendant to so state. Bunner filed a protest in which he stated that the application of plaintiff was false, for the reason that plaintiff desired to purchase the lands for the benefit of a corporation, and not for his own use and benefit. It is further alleged, as to Bunner's application, that the sole ground of contest made by Flora M. Sherman, as against the application of plaintiff, was that the application of plaintiff was false, for the reason that the land applied for by plaintiff exceeded 640 acres. The defendant, as surveyor general, made and entered an order referring the contest, as between Bunner and plaintiff, to the superior court of Inyo county for adjudication. Within 60 days after the order of reference, Bunner commenced an action in the superior court of Inyo county against plaintiff for the purpose of having the said contest adjudicated, and the said action is still pending. The demurrer to this second defense was properly sustained. It is not the policy of the law to allow new parties to file upon the same land, in a contest between different applicants, after an order of reference has been made, and a contest is pending in court, by such new parties merely stating a different ground of contest. If this were the law, a contest might be kept in court indefinitely in regard to the same land. The first contest might be as to whether or not the applicant was a citizen, or had declared his intention to become such; the second, as to whether or not he desired to purchase for his own use and benefit; the third, as to whether or not he had made any contract or agreement to sell the land applied for; the fourth, as to whether or not the applicant was the owner of state land which, with that sought to be purchased, exceeds 640 acres; and so on through all the various grounds of contest that can be made. Section 3416 of the Political Code provides that, upon filing a copy of the final judgment in a contest, the surveyor general or register "must approve the survey or location, or issue the certificate of purchase or other evidence of title in accordance with such judgment." New parties cannot come in to pre

vent the enforcement of a judgment as to land in contest, and disposed of by the judgment. Laugenour v. Shanklin, 57 Cal. 70; Cunningham v. Same, 60 Cal. 118.

The defendant stated as a fourth defense that the whole of the land described in plaintiff's application has not been surveyed, and that a copy of the field notes and plat of a survey of all the lands described in the application have not been filed; that the eastern boundary of the lands described in plaintiff's application has never been surveyed. Section 2 of the act provides: "Upon the filing of said application, when the land has not been sectionized, the surveyor-general shall authorize the county surveyor of the county where the whole or the greater portion of the land lies to survey the same, who shall make an actual survey thereof, at the expense of the applicant, establishing four corners to each quarter-section, and connecting the same with a United States survey, and he must, within thirty days, file with the surveyor-general a copy, under oath, of his field notes and plat, and a statement, under oath, showing whether or not the land is occupied by an actual settler." The above section clearly contemplates a survey of the land, and that a copy of the field notes and plat shall be filed before an application shall be approved. The statement under oath as to whether or not the land is occupied by an actual settler contemplates that the surveyor general shall have this information from the county surveyor before approving an application. The question of whether or not the land was surveyed appears to have been disposed of in Sherman v. Wrinkle, but it could only have disposed of the question as to the land in contest in the suit. If the facts set forth in the fourth defense are true, they show sufficient reason for not approving plaintiff's application as to the lands described, other than those in contest in the case of Sherman v. Wrinkle. It is the duty of defendant to have the survey made, and, if he fails to do so, in proper proceedings he may be compelled to perform his statutory duty. But he cannot be compelled to approve an application or to issue a certificate of purchase for land that has not been surveyed.

The judgment is reversed, and the court below directed to overrule the demurrer to the first and fourth defenses contained in the answer.

(136 Cal. 486)

POWERS v. BANK OF OROVILLE. (Sac. 880.)

(Supreme Court of California. June 5, 1902.) BOUNDARIES-ADVERSE POSSESSION-EVI

DENCE-SUFFICIENCY-HARM-
LESS ERROR.

1. The owner of two lots, one of which was inclosed, sold the latter, the deed describing its north line as being 575/12 feet from a certain street: but it was understood between the parties that the description was of the inclosed

lot, which was never denied by the owner. Thereafter the other lot, lying north of the inclosed lot, was sold; the description reciting that it extended 57 5/12 feet south of the street, and to the other lot. Held, that the reference in the latter deed to the lot first sold was controlling, and the grantee could not claim a strip from the inclosed lot, though subsequent surveys might show that it was located less than 575/12 feet from the street.

2. An inclosed lot was sold in March, 1888; the parties understanding that the description included all ground within the inclosure, which was never denied by the grantor. The lot was occupied by the grantee and his successor in title, and taxes were paid thereon. The claim of the grantee was known to defendant, to whom a lot north of the inclosed lot was sold by the grantor of the inclosed lot, and there was nothing to show that the location of the boundary line between the lots was in doubt. Held, that the owner of the inclosed lot acquired title to the entire lot by adverse possession, though the boundary was doubtful, because the location of the street line which was the starting point in the description in the deed was uncertain.

3. Where the decision in an action to quiet title may be based entirely on adverse possession, the erroneous admission of evidence tending to show the location of the boundary of the premises in dispute is harmless.

Commissioners' decision. In banc. Appeal from superior court, Butte county; John C. Gray, Judge.

Action to quiet title by Minnie R. Powers against the Bank of Oroville. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

John Gall and R. E. Robinson, for appellant. J. M. McGee, for respondent.

CHIPMAN, C. Action to quiet title. Plaintiff had judgment, from which, and from the order denying its motion for a new trial, defendant appeals. The premises in controversy are part of lot 1, block 21, in the town of Oroville; being 43 feet 11 inches thereof, lying on the westerly side of Myers street. Defendant claims the northerly 57 feet and 5 inches of this lot, overlapping the land claimed by plaintiff 2 feet and 10 inches, which latter strip alone is in controversy. The court found the following facts: That "on March 1, 1888, one James C. Gray was the owner of all of lot one, except a strip thirteen and one-fourth feet wide on the south side thereof, and on said day sold to E. A. Halstead, and conveyed by deed, what was then known as the 'Brown House Property,' which included the land in dispute, and which was then inclosed by a substantial fence, which said fence has been maintained from the date of said sale to the present time"; that Halstead entered into possession of said lot, and cultivated and improved the same, from the date of his purchase to the date of his sale of the premises to plaintiff herein, and said plaintiff and her grantor have paid all taxes (state, county, and otherwise) levied and assessed upon said land since said 1st day of March, 1888, to the commencement of the action; "that the possession of plaintiff and her grantor since said March 1, 1888, to the commencement of the

action, has been open, notorious, peaceable, adverse to all the world, and under claim of right"; that Halstead conveyed by deed to plaintiff the land in controversy on June 3, 1897, who immediately took possession thereof with her family, and has maintained the same exclusively to the commencement of the action; that the land and premises sold by Gray, and conveyed by deed on March 1, 1888, to Halstead, "contained, among other lands, that which is the subject of dispute, and after said sale said Gray never made any claim to any of the lands contained in the description set out in said deed of conveyance, nor to any of the lands contained within the Brown House lot,-being the land inclosed,-of which the land in dispute is a part." The conclusion of law was that plaintiff is the owner of the land described in the complaint, and is entitled to have his title to the same quieted, and judgment was accordingly so entered.

1. Appellant contends that the evidence is insufficient to support the findings. The controversy arose out of the survey to establish the southerly line of Bird street which bounds lot 1, block 21, on the north. Plaintiff's deed has for a starting point of the description a point on the westerly line of Myers street 575/12 feet southerly from the southwest corner of Bird and Myers streets. Surveyor Jasper, taking as his initial point what he regarded as the correct one from which to establish the boundaries of plaintiff's lot, came to the conclusion that her lot lies within the inclosure as it has existed and been occupied for many years,-certainly since 1888. Surveyor McCoy, taking a different initial point, located the southerly line of Bird street so that the calls of plaintiff's deed and the calls of defendant's deed would apparently show a strip of land within plaintiff's inclosure, next to defendant's land, of the width now in controversy. In a written opinion of the court, printed in respondent's brief, the learned trial judge said: "I am of the opinion, under the testimony, that the southwesterly corner of Bird and Myers streets is a floating place, since, of four persons, Edmunds, Gray, Jasper, and McCoy, who have tried to locate it, no two fix it in the same place." We think, however, it is not necessary, for the support of sufficient findings to support the judgment, to express any opinion on this point. There is evidence that when Gray sold the premises in question to Halstead, in 1888, the land was inclosed by a substantial fence, and a dwelling house was erected on the land, which was occupied as a residence, and the property was familiarly known as the "Brown House Lot," by reason of the house and fence having been painted brown color. The inclosure was the same then as now, and between the fences the land not occupied by the house was highly cultivated, and beautified with ornamental shrubbery, flowers, and fruit trees, some of which were planted close to the north line of fence, next to defendant's lot. There

is evidence that when Gray conveyed to Halstead, and put the latter in possession, the parues understood that the land granted was the lot inclosed by these fences. Gray then owned the part lying north, now claimed by defendant, and continued to be the owner for about 41⁄2 years, during which time he made no claim to any portion of the Brown House lot, as taken possession of by Halstead under his deed. Gray conveyed the north part of lot 1 to one Lillis, defendant's grantor, in 1892, by a description commencing at the southwesterly corner of Bird and Myers streets, running thence southerly along the westerly line of Myers street 575/12 feet, "to the northerly line of the Halstead lot." The trial court held (we think rightly) that the reference to the Halstead lot must be taken as referring to a monument, and would govern as against the distance call. Gray must have had in his mind the lot as he had conveyed to Halstead, and to which he had given Halstead possession. The Halstead lot was the land inclosed and now claimed by plaintiff. Neither defendant's grantor, Lillis, nor defendant, ever questioned the right of plaintiff to the very land she occupied until about the time the action was commenced. It is admitted that all taxes on the Brown House lot, fronting on Myers street 43 feet 11 inches, were paid by plaintiff and her grantors from the time Gray conveyed to Halstead to the present time. There was evidence that plaintiff's claim to the land in question, and that of her predecessors in estate, was open, notorious, peaceable, and undisputed, and with the knowledge of defendant, for all these years. It would be difficult to show a stronger case of possession adverse to all the world. There is nothing in the evidence to warrant defendant's contention that the location of the north line of plaintiff's lot was a matter of mutual doubt and mistake, and hence plaintiff was not holding adversely to defendant. There was no mistake or doubt in the mind of Halstead or plaintiff-or Gray, for that matter-as to the boundaries of the lot, intended to be conveyed by Gray to Halstead. Regardless, therefore, of the true location of the southwest corner of Bird and Myers streets, which the lower court considered as still unsettled, the claim of adverse right is sufficiently shown, and the judgment may rest on the findings as to this adverse claim.

2. Appellant contends that the court erred in admitting certain testimony as to the location of certain buildings on the land adjoining the lot in question on the south; the ground of objection being that it was an attempt to explain the description in the deeds to lot 1, and that the location of these buildings was not in dispute. The court seemed to regard the evidence as irrelevant, but admitted it. We cannot see that it had much, if any, bearing on the case, one way or the other; and on the issue of adverse possession it had not the slightest weight. Conceding that it was incompetent on the issue as to the description given in the deeds, for the reason

1. Where an injury is occasioned by a col lision at a railroad crossing, the refusal of an instruction that the company can run its train over the track at regular periods or as special or extra trains, and the obligation to look and listen is one from which the traveler is at no time excused on preparing to cross a railroad at grade, is not erroneous when the court not only gave the substance of such request, and charged that plaintiff was bound to use his sight and hearing and reasonable care, and give way to the train if in sight, but further instructed that, notwithstanding any omissions of the company, plaintiff could not recover if he could have discovered the approach of the train in time to avoid the accident.1

а

2. Where a track in the direction from which the train came which struck plaintiff on crossing was obstructed by trees and a house, except that about 20 feet from the crossing an approaching train might have been seen at one place through the trees, and plaintiff slackened his speed to a slow walk, and looked and listened for trains, but did not stop, it was not erroneous to refuse an instruction that if plaintiff could not see the train, and the noise of his wagon lessened his opportunity to determine the approach by his hearing, it was his duty, before going on the track, to stop and listen to ascertain whether or not a train was approaching.

3. The question whether plaintiff, under all the circumstances, was guilty of contributory negligence for failure to stop before crossing a car track, is a question for the jury.

Appeal from district court, Utah county; J. E. Booth, Judge.

Action by Elisha Peck, Jr., against the Oregon Short Line Railroad Company. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

P. L. Williams, Geo. H. Smith, and J. W. N. Whitecotton, for appellant. King, Burton & King, for respondent.

BARTCH, J. This action was brought to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant in the operation of its railroad. It was alleged in the complaint, among other things, that the accident which resulted in this suit occurred in the city of Lehi, where the defendant's railroad track crosses one of the public streets; that there was an ordinance prohibiting the 'Leak v. Railway Co., 33 Pac. 1045, 9 Utah, 346.

running of trains at a greater rate of speed than eight miles an hour within the inhabited portions of the city; that on the occasion of the accident the train was running at a rate of speed greater than that allowed by the ordinance, and was run carelessly in approaching the crossing; and that neither its whistle was sounded nor its bell rung. From the evidence it appears that the accident happened on the morning of December 4, 1899, in the inhabited portion of the city of Lehi, at a point where the defendant's railroad track crosses Peck streef; that in approaching the crossing along Peck street the plaintiff's view of the railroad to the south-the direction from which the train in question came-was obstructed by a grove of trees, underbrush, and a small house, except that before reaching the house, which is about 25 feet from the railroad track, an approaching train might have been seen at one place by looking through the grove of trees; that on the morning of the accident the plaintiff was driving his team, consisting of two horses and a wagon, along Peck street toward the railroad on a trot, but before reaching the crossing he reduced the speed to a slow walk; that in approaching the crossing he looked and listened for trains, but did not stop: that as he had passed the obstructions, which interfered with his view, and saw the train, his horses were stepping upon the track, and before he could back them off the engine struck them, and caused the injuries complained of; that it was a passenger train, running at the rate of at least 15-some witnesses say 35 to 40miles an hour, the ordinance providing for a rate of speed at that place not to exceed 8 miles an hour; and that this train was 15 minutes late, and the plaintiff thought it had passed. As to whether the whistle was sounded either for the crossing or station, and aš to whether the bell was rung, there is a conflict in the evidence, but the proof seems to preponderate against the defendant on these points. Upon the submission of the case to the jury a verdict in the sum of $4,650 was returned in favor of the plaintiff, and judgment was entered accordingly.

On this appeal various assignments of error are based upon the admission and rejection of evidence, but upon careful examination and consideration we are of the opinion that none of them are fatal to the judgment. It is, however, further contended that the court erred in refusing to submit to the jury appellant's request which reads as follows: "The duty of a traveler upon a highway at a railroad crossing to look and listen and to use care for the purpose of discovering the approach of the train before undertaking to pass over the railroad exists upon every occasion of his approaching such crossing. He is not relieved or excused from exercising the care required of him for the reason that he approaches such crossing shortly after a regular train is due, or supposed by him to have passed, or in fact has passed. The railroad track itself is an

admonition of danger, and the railroad company has a right to run its train over the track at regular periods, or as special or extra trains, or in the event of their being behin time, the same as upon the regular schedule; and the obligation to look and listen is one from which the traveler is at no time excused upon approaching and preparing to cross a railroad at grade." Instead of giving the above request verbatim, the court charged the jury in language following: "Negligence of the defendant in the omission to sound its whistle or ring its bell, or in running its locomotive and cars at an unusual or unlawful rate of speed, if you find such was the case, did not relieve the plaintiff from the exercise of care on his part to avoid the accident complained of. It was his duty, on approaching the railroad track, to use his senses of sight and hearing to ascertain whether or not a tiain was approaching upon the railroad track from either direction; and if there was a grove of trees or obstructions or other objects that intercepted his vision, and prevented him from seeing the approaching train, in the direction in which it came, then the law imposed upon him greater care to discover whether or not the train was approaching, by the exercise of the sense of hearing. Therefore the court instructs you that if you find that the defendant was guilty of either or any of the negligent acts of commission or omission charged in the complaint, and you further find that the plaintiff, as he approached the track at the point where the accident occurred, could have discovered the approach of the train by looking and listening, but that he omitted to exercise such care, and was careless and negligent, and thereby, and as a consequence thereof, because of his negligence, omitted and failed to discover the approach of the train until it was too late to avoid the accident, then the injury of which he complains was the result, not of the sole negligence of the defendant, but was a result of his own negligence co-operating with that of the defendant, if you find that the defendant was so negligent, then in that event the plaintiff would not be entitled to recover in this case." The court further charged that "the rights of a traveler on a highway at a point where it is crossed on a level by a railroad are so far subordinate to the railroad company as to require the traveler to give way to any train which is in sight or hearing and approaching said crossing, and so near said crossing as to make it doubtful whether he can cross in perfect safety." From a comparison of appellant's request with these instructions, it is obvious that the refusal to charge in the exact language requested was not error. In its instructions the court gave not only the substance of the request, and charged the jury that the plaintiff was bound to make use of his senses of sight and hearing, and to use reasonable care to discover the approach of the train, and that his rights at the crossing were so far subordinate to those of the ran

way company that he was required to give way to the train if in sight or hearing, but further instructed them, in effect, that, notwithstanding any negligent acts of commission or omission charged in the complaint, still, if the plaintiff "could have discovered the approach of the train" in time to avoid the accident, by the use of his sense of sight or hearing, he could not recover. This was stronger and more favorable to the appellant than it had a right to request, for we apprehend the question was not whether the plaintiff could, by any possibility, as the instruction would seem to imply, have discovered the train, but whether, by the exercise of reasonable care, such care as a reasonably prudent man, under all the circumstances, would have exercised, the plaintiff could have discovered the approaching train, and avoided the accident, notwithstanding the negligence of the defendant. If, therefore, the court committed error in its action on this point, the error was in favor of the railway company, and hence it has no cause to complain because thereof. All material propositions contained in the defendant's request were embraced in the charge of the court, and therefore it was not necessary to repeat them in a special request. Leak v. Railway Co., 9 Utah, 246, 33 Pac. 1045; Railway Co. v. Leak, 163 U. S. 280, 16 Sup. Ct. 1020, 41 L. Ed. 160; Railroad Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.

It is next assigned for error that the court refused to charge the jury, as requested by the defendant, that if the plaintiff "could not see the train approach, and his wagon and team caused any noise that would interfere with or lessen his opportunity to determine the approach of the train by the exercise of his sense of hearing, then it was his duty, before going upon the track, to stop and listen to ascertain whether or not a train might be approaching." It must be conceded that this request was in harmony with the rule adopted in a few of the American states, notably in Pennsylvania, where the rule of "stop, look, and listen," before attempting to cross a steam railway track is so inflexible that a nonobservance of it under any circumstances, it seems, is held to be negligence per se. If, therefore, in that jurisdiction, a person attempts to drive across a steam railroad track, without first stopping to look and listen, and is struck and injured by a train, he is deemed, as matter of law, guilty of such negligence that he cannot recover, regardless of whether or not the railway company was also negligent. In Railroad Co. v. Beale, 73 Pa. 504, 13 Am. Rep. 753, it was said: "There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se, and a question for the court." Omslaer v. Traction Co., 168 Pa. 519, 32 Atl. 50, 47 Am. St. Rep. 901. This rule has been applied in some other jurisdic