(84 Cal. 61)

ASTON V. DASHAWAY ASS'N et al. (No. 12,069.)

(Supreme Court of California. May 3, 1890.) CORPORATIONS-MISAPPROPRIATION OF PROPERTY— ACTIONS BY MEMBERS.

1. A temperance society, owning improved land, was incorporated, without capital stock, "for the purpose of promoting the cause of temperance. under Hitt. Gen. Laws Cal. § 1024 et seq., provid. ing for the incorporation of "religious, social, benevolent, and learned associations." Some years afterwards, the membership having greatly decreased, a resolution was passed that the trustees sell the property, pay off some outstanding indebtedness, and "purchase other cheaper property suitable for the uses and purposes of the associa tion. " A petition asking for leave to sell, and stating, among other things, that the corporation was "purely and solely for the benevolent and laudable purpose of aiding and promoting the cause of temperance, and not pecuniary profit," was accordingly filed in the superior court, which granted the prayer of the petition, reciting the resolution in its order of sale. The property was sold, and a portion of the proceeds divided among a part of the members, including the trustees, pursuant to a motion "that the association donate to each member in good standing the sum of $1,500 for past services, on signing a receipt for the same;" but it was admitted on the trial that no services had been rendered other than being good and efficient members of the organization. Held, a misappropriation of corporate funds, and that any member not a party thereto could maintain a suit to compel a restoration.

2. Where trustees misappropriate corporate funds, claiming the right so to do, a member may institute proceedings for their restoration without demand on the trustees to take action in the matter.

In bank. Appeal from superior court, city and county of San Francisco; T. H. REARDON, Judge.

S. Heydenfeldt, Jr., and Joseph P. Kelly, for appellant. Tilden & Tilden, for respondent.

SHARPSTEIN, J. This appeal was heard in department 2, which reversed the judgment and order of the court below. An opinion was filed November 22, 1889. 22 Pac. Rep. 660. Afterwards a petition that the cause be heard in bank was filed and granted, and the case has been argued in bank, but the argument has failed to convince us that the decision of the department was erroneous; and, for the reasons stated in the opinion of the department, the judgment and order appealed from are reversed.

We concur: WORKS, J.; THORNTON, J.; PATERSON, J.

(84 Cal. 12)

SPANGLER v. CITY AND COUNTY OF SAN

FRANCISCO. (No. 11,958.) (Supreme Court of California. March 3, 1890.) MUNICIPAL CORPORATIONS-DEFECTIVE SEWERSNEGLIGENCE.

1. In an action against a city for injuries to adjacent property caused by the overflow of a sew. er which it has knowingly permitted to become obstructed and out of repair, it is no defense that the flow was unusual where it appears that the sewer would have carried off all the water if it had been kept in repair.

2. Where the overflow of a sewer is caused by a dam which the superintendent of streets know

ingly permits to be placed therein, the city will be liable for injuries caused by the flooding of adjacent property. Nor is it material that the property injured is below the grade of the street.

3. It is not necessary to present a claim for damages resulting from defective sewers to the board of supervisors of the city and county before instituting suit upon it.

In bank. Appeal from superior court, city and county of San Francisco; M. A. EDMONDS, Judge.

George Flournoy, Jr., City and Co. Atty., for appellant. Wm. H. Bodfish and W. C. & I. G. Burnett, for respondent.

THORNTON, J. This is an action to recover of the city and county of San Francisco damages for neglect in keeping a sewer in repair, whereby the plaintiff was injured. At the time that the injury occurred, and for some years before, the plaintiff was the owner of a lot of land situate at the southwesterly corner of Eighteenth and Fair Oaks streets,-27 feet on Eighteenth street, and 101 feet on Fair Oaks street; the lot lying east of Fair Oaks, and constituting a parallelogram of 27x101 feet, on which he had, in 1877, built a house.

The material facts are found by the court as follows: "That prior to October 19, 1883, defendant had authorized and caused a public street in said city and county of San Francisco, called Eighteenth Street,' along and near the line of which a natural stream of water had been accustomed to flow and run, and many other streets crossing Eighteenth street, to be graded greatly above the natural level of the ground there, from Folsom street westerly as far as Douglass street; and thereby the waters of said natural stream were prevented from flowing in the bed of said stream, and said bed filled with earth in many places, and the waters flowing from a large water-shed to the westerly of Church street intercepted and prevented from reaching said bed as they had been accustomed to do; and had authorized and caused a sewer to be constructed and laid down along Eighteenth street, from Folsom to Douglass streets, and other sewers along the streets crossing Eighteenth street, and that by means thereof the waters that formerly flowed in said natural stream and from said water-shed were, until the time of the acts of negligence hereinafter referred to, received into and conducted in said sewer in Eighteenth street, and conveyed therein to a point at Folsom street, and from thence said waters found their way into Mission bay and the bay of San Francisco, and that said waters would have continued to be so conveyed and to find their way until after the injuries herein mentioned but for the acts of the defendant, and of her servants and agents, as hereinafter mentioned. That plaintiff, after October 19, 1883, and before the time of the injuries hereinafter mentioned, erected upon said lot of land a dwelling-house and carpenter shop, and had improved said lot by grading it, and at the time of such injuries had

on said premises, and was the owner of, the lumber, tools, paints, oils, finishing lumber, mouldings, doors, windows, material, rails, and property hereinafter mentioned, which tools constituted a chest of carpenters' tools, and said material included casings, among other things; and, at the time of said injuries, plaintiff was conducting business at his trade as a carpenter in said shop, and was residing on said premises with his family. That the foundation and shop floor mentioned in the fourth paragraph of the first count of the complaint constituted part of the dwelling-house and shop aforesaid. That there were no outhouses on said land. That within two years before the commencement of this cause, and up to the time of the injuries hereinafter mentioned, said sewer in Eighteenth street to the westerly of Guerrero street, through the negligence of the defendant, and carelessness of the defendant, in omitting to clear or repair the same, became, and, until and including the times when such injuries occurred, continued to be obstructed, insecure, broken, and, with said sewers in said streets crossing Eighteenth street to the westerly of Guerrero street, incapable of conveying away the waters, drainage, and sewage received into the same; and thereby large volumes of water and sewage collected in said sewers westerly from Guerrero street were conducted to, and discharged with great and increased violence upon, the said land and premises of the plaintiff, between March 1, 1884, and at divers times between said dates, --that is to say, on the 7th, 8th, and 9th days of March, 1884, and on the 11th and 12th days of April, 1884. Whereby said water and sewage greatly devastated and injured the said land, dwelling-house, and shop during the period last aforesaid, and injured said building and shop, and caused said building to settle and become out of plumb, and saturated the soil of said lot, and partially filled the basement of said house and shop with water, and broke said house, and the other property hereinafter mentioned was wetted and injured and damaged. By means whereof the said dwelling-house and carpenter shop, and the foundations thereof, and said land, were damaged in the sum of $500, and other property then on said premises damaged,that is to say, 5,000 feet of lumber to the amount of $120; paints and oils to the amount of $50, finishing lumber, cases, and mouldings to the amount of $100; doors, windows, and blinds to the amount of $70; one ton of nails to the amount of $100; carpenter tools in carpenter shop to the amount of $150. That said injuries were in part caused by the washing of sewage and earth into and upon said lot, and into said house and shop, by and with said water. That the amounts above mentioned include the values of all the injuries to the plaintiff's said property by means of the facts herein stated. That defendant at all times, and during the whole period herein referred to, had notice of the then condition of said Eighteenth street, and the sew

er therein, and of the streets crossing said street, and of the sewers therein, as hereinbefore shown, and that such notice was also given to, and possessed by, and the knowledge of such condition had by, the defendant's board of supervisors and mayor, and her superintendent of public streets, highways, and squares, at all said times and during said period. That there was no necessity for causing said discharge of waters or of said sewage or of said earth upon the land of plaintiff; but, by a proper repair and claiming [cleaning] of said sewers, the whole thereof could easily have been conducted past the land of the plaintiff, and discharged into Mission bay and the bay of San Francisco, without doing any damage to plaintiff's said property. That the damage, loss, and injury herein before mentioned was not, nor any part thereof, caused by the negligence of the plaintiff, and that plaintiff was not negligent in any particular in the premises."

It is urged that there was no proof that there was such a water-course as is alleged and found. The evidence is ample to bring it within the definition as given by all the cases. It is not necessary that the water shall run in the bed or channel of the stream all the year. There is evidence of bad breaks, and water flowing in the bed. But, whether the water that did the damage came from a water-course or from the surface, the liability would be the same. The liability here rests in the duty of the city to keep the sewers in repair, which duty, after ample knowledge of it, was grossly neglected. It is the duty of the city, when it does provide water-ways, to provide such as are sufficient to carry off the water that might reasonably be expected to accumulate. The rule is so laid down in Damour v. Lyons City, 44 Iowa, 282, approved and followed in Powers v. City of Council Bluffs, 50 Iowa, 201, 202. or, etc., v. Bailey, 2 Denio, 433. the rule above stated correct, and approve it.

See MayWe think

But it is said that the precipitation which caused the injury herein was extraordinary and unusual,-could not reasonably have been expected,—and therefore the defendant is not liable. This might be true if the sewers had not been of sufficient size to carry off all the water which was so extraordinarily and unusually precipitated, but the evidence is clear and direct that the sewers, if they had been kept in order, were of a capacity to carry off all the water which did fall. This shows that the agents and servants by whom the city acted in constructing the sewer anticipated that large sewers would be required to carry off the rain-falls which might be looked for, and it could not be allowed the defendant to invoke this defense when it had in advance made provision for the very event that did occur. It could not harmonize with reason and justice to allow such defense for negligence. The contention would amount to this: Though the sewers were made large enough to carry off all the water, though the extraordinary rain-falls were anticipitated,

yet, inasmuch as the fall of water was unusual and extraordinary, the defendant is not liable. Sufficient provision having been made in advance for anticipated events, it would be inconsistent with all just and sound reason, and the settled principles of law, to hold one excused when the provision has become insuflicient by reason of indifference to monitions and inexcusable neglect. The plaintiff had a right to assume that the agents of the city would attend to duty, and repair the broken and dilapidated sewer. He had a right to act on this assumption. Certainly there was no duty on him to remove the obstructions from the sewer, and repair it himself, or be chargeable with negligence if he did not do so. It would have cost a considerable sum of money to have put the sewer in a proper condititon, --may be more than his property was worth.

The

The evidence shows that the foundation of the house was below the grade of Eighteenth street. The floor of the basement was four feet six inches below the level of the sidewalk on Eighteenth street, on which the house fronted. The plaintiff moved into the house in January, 1884, though it was not completed until the month of March following. The lot was graded in October, 1883, about three feet higher than the former level. front of the house was set back about five feet from the edge of the sidewalk on Eighteenth street, and was reached by steps going up from the sidewalk to the front door. Though the lot was below grade, still the sewer, when in proper condition and unbroken, would have carried off the water which did the injury. Plaintiff was guilty of no negligence in building where he did, and his right to recover would not be impaired. When the plaintiff built his house, in 1883 and 1884, he had, as said above, a right to act on the assumption that the city authorities would keep the sewer in good repair. The sewer being sufficient in capacity to carry all the water, the plaintiff might well consider that he could remain securely on the land where he had built his house, and would not be guilty of negligence which would bar a recovery. On this subject see White Lead Co. v. Rochester, 3 N. Y. 463; Barton v. Syracuse, 37 Barb. 292, 36 N. Y. 54; Ashley v. Port Huron, 35 Mich. 299, and cases there cited. Dillon states that "there is a municipal liability where the property of private persons is flooded, either directly or by water or sewage being set back, when this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts, or sewers, or of the negligent failure to keep the same in repair and free from obstruction; and this whether the lots are below the grade of the streets or not. The cases support this proposition with great unanimity." 2 Dill. Mun. Corp. 1335. Counsel for defendant urges that, if the damages to plaintiff had resulted from the natural flow from the adjoining high ground, he cannot recover. He further says: "It does not

appear that this was not so." The evidence on the point urged was before the court below, and it held that the damage was caused by the water which flowed from the broken sewer, aud not from the adjoining higher ground. There is evidence to sustain the finding, and we do not feel at liberty to disturb it.

It is urged that the injury was caused by certain parties, who had been constructing a sewer, who built a dam which diverted the water, and caused it to flood plaintiff's land. Sewers are built under the direction of the city authorities; and, if the parties building it are so negligently conducting their work as to cause loss and injury to a third person, the city is liable. It is no excuse to the city that a dam thus built caused the damage. If there was such a dam, there is evidence which shows that the superintendent of streets had knowledge of it. There was a contractor building a sewer on Eighteenth street in February, 1884, and, if he constructed any dam there, the city authorities had an opportunity of seeing and knowing it; for the uncontradicted evidence shows that the superintendent or his deputy was there, when the sewer was being constructed, every morning. The only person building a sewer was a contractor, McDonald, who was a witness in the case, and, if any such dam was built, he or his employes built it; and he testifies that the superintendent of streets or his deputy was there every morning to inspect the work. The superintendent, thus knowing of the dam, must have known it would have diverted the water in the rainy season. Knowing it, he should have caused it to be removed. His failure to remove it was negligence of duty; and the city, under the circumstances, should not be relieved, in consequence of this dam, of its responsibil ity in this case. Further, the dam being on the east side of Eighteenth street, it does not appear with sufficient clearness that it caused the damage to authorize this court to regard its existence as impairing plaintiff's right to recover herein.

It was not requisite to present the claim sued on herein to the board of supervisors of the city and county before instituting suit upon it. Bloom v. City and County of San Francisco, 64 Cal. 503, 3 Pac. Rep. 129; Lehn v. City and County of San Francisco, 66 Cal. 76, 4 Pac. Rep. 965.

A stipulation appears in the record in this case to the effect that all the evidence and findings appearing in the statement of the case in the action of A. O. Cook v. the City and County of San Francisco, now here on appeal, that may be pertinent herein, shall be considered in this cause upon the appeal from the order denying defendant's new trial as though the same were embodied in the statement on motion for a new trial in this case. Under this mode of bringing a case here on appeal, the work of counsel is imposed on this court. This court is called on to read two transcripts in different cases,

by the court, and judgment given for plaintiff "for the sum of $441.92, and legal interest thereon from the 1st day of June, 1885, viz., for the sum of $524.34 and costs." From this judgment the defendant appealed, and has brought the case here on the judgment roll.

1. The first point made is that the complaint failed to state facts sufficient to constitute a cause of action, because there was no suflicient averment of non-payment; and, in support of this position, Seroufe v. Clay, 71 Cal. 123, 11 Pac. Rep. 882, is cited. In that case the action was upon a promissory note, and the complaint averred that the defendant "has refused, and still refuses, to pay" the principal or interest of the note, or any part thereof, and "that there is now due" the sum, etc. The complaint was demurred to on the ground that there was no allegation of nonpayment, and the demurrer was overruled. It was held in this court that the demurrer should have been sustained, the court saying: "The averments of the complaint are not equivalent to an averment of non-payment. The failure to pay constitutes the breach, and must be alleged." It has been held in numerous cases that a party suing upon a contract to pay money must show a breach of the contract, that is, must allege the nonpayment of the money which he seeks to recover,—or his complaint states no cause of action, and may be assailed by a general demurrer. In Richards v. Insurance Co., 80 Cal. 506, 22 Pac. Rep. 939, the last case in which this rule is declared, it is said: "The complaint was fatally defective in this respect. It contained no allegation of nonpayment, nor is there any allegation from which such non-payment can be implied." But there is a plain distinction between an entire failure to state essential facts, and a statement of such facts imperfectly or defectively. In the one case the defect can be reached by a general demurrer, while in the other it can only be reached by a special demurrer. The rule upon this subject is thus stated in Harnish v. Bramer, 71 Cal. 158, 11 Pac. Rep. 888: "If a complaint fails to state any fact or facts essential to a recovery, the defect may be reached by a general demurrer. If, however, it states all the essential facts, but states them improperly or defectively, the defect can only be reached by a special demurrer particularly designating the specific point at which it is aimed;" and see Tehama Co. v. Bryan, 68 Cal. 59, 8 Pac. Rep. 673. In Scroufe v. Clay, supra, there was not an entire failure to state in the complaint the fact of non-payment, but the averment was simply uncertain and defective; and the same is true of this case. But in the former case the demurrer was special, while here it was general. In our opinion, the complaint in this case stated a cause of action, and was sufficient when tested only by a general demurrer. Besides, the court found that no part of the money for which judgment was entered had been paid; and the Code provides

that "the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." Code Civil Proc. § 475.

2. It is next claimed that the findings do not meet all the issues raised by the answer, and for that reason that the judgment should be reversed. But, in answer to this objection, we think it enough to say that, while the findings may be open to some criticism, still they were, in our opinion, intended to, and in effect do, cover all the issues tendered, and should be held sufficient.

No other points are discussed by counsel, and we therefore advise that the judgment be affirmed.

In an action to quiet title to a strip of land 4.62 chains wide at the eastern end, and running to a point at the west end at the distance of 3% miles, it appeared that it lay immediately south of a certain survey, P.; and the question was whether the strip was included in a subsequent survey, J., south of P., or lay between the two. This depended upon the location of the north-east corner of J. The description in the survey of J., commencing at a point in the eastern line, was thence due north 458.50 chains to a certain post, V, "station at intersection of line" with the survey of P.; "thence along said line" N., 51 deg. 45 min. W., a certain distance to the "old corner" of P. The course of the southern boundary of P. was N., 51 deg. 45 min. W. The post, V, was destroyed, but a line drawn due north from the starting point in the east line of J., 458.50 chains, would not reach the southern boundary of P. by 4.62 chains. The post, V, was also described in the survey of J. as 2.25 chains north of a certain creek, while the southern line of P. was at this point nearly 7 chains north of the creek. Held, that the evident purpose was to make the two grants join, and that these facts make out a prima facie case, at least, that the strip was included in the survey, J.

Commissioners' decision. Department 1. Appeal from superior court, Alameda county; W. E. GREENE, Judge.

Jas. C. Martin and R. A. Redman, for appellant. J. W. Harding, for respondents.

BELCHER, C. C. This is an appeal from a judgment of nonsuit in an action to quiet title to 51.20 acres of land in Alameda county. The land in controversy is described as a strip three and one-half miles long, 4.62 chains wide at one end, and running to a point at the other end. The plaintiff alleged in his complaint that the strip was a part of a Mexican grant called the "Rancho El Valle de San José,' which was patented by the United States to Antonio Sunol and others on the 15th of March, 1865. The defendants