Measure of

damages to be

fixed at value

of property at

sum

mons issues.

Plaintiff may

institute a second action

to perfect his

title.

Plaintiff must

ed time pay

for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards where fences may cross the line of such railroad.

Fifth. As far as practicable, compensation must be assessed for each source of damage separately.

SEC. 591. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed as provided in section 590.

If an order be made letting the plaintiff into possession, as provided in section 596, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property subsequent to the date of the service of summons shall be included in the assessment of compensation or damages.

SEC. 592. If the title attempted to be acquired is found to be defective from any cause, the plaintiff may again institute proceedings to acquire the same, as in this title prescribed.

SEC. 593. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed ; but may, at the time of or before payment, elect to build the fences and cattle guards, and if he so elect, shall execute to the defendant a bond, with sureties to be apassessment of proved by the court, in double the assessed costs of the make the same, to build such fences and cattle guards within eighteen months from the time the railroad is built on the land taken, and if such bond be given, need not pay the costs of such fences and cattle guards. In an action on such bond the plaintiff may recover reasonable attorney's fees.

damages or

necessary improvements.

Of payment to defendants

SEC. 594. Payment may be made to the defendants entitled thereto, or the money may be deposited in

court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited the defendants may have execution, as in civil cases, and if the money cannot be made on execution, the court, upon a showing to that effect, must set aside and annul the entire proceedings and restore possession of the property to the defendant, if possession has been taken by the plaintiff.

condem nation.

SEC. 595. When payments have been made and the bond given, if the plaintiff elects to give one, as required by the last two sections, the court must make a final order of condemnation, which must describe the prop- Final order of erty condemned and the of such condemnation. purpose A copy of the order must be filed in the office of the recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified.

SEC. 596. At any time after service of summons the court may authorize the plaintiff, if already in possession, to continue therein; and if not, then to take possession of and use the property during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against the plaintiff on account thereof; but the plaintiff must give security, to be approved by such court or judge, to pay as well the compensation in that behalf, when ascertained, as all damages which may be sustained by the defendant, if for any cause the property shall not be finally taken for public use.

of the posses

sion by plain

tiff.

Allowance of

SEC. 597. Costs may be allowed or not, and if allowed, may be apportioned between the parties on the costs under same or adverse sides, in the discretion of the court.

TITLE XV.

CHAPTER I.-General Principles of Evidence.

SEC. 598. The direct evidence of one witness, who is

this chapter.

Sufficiency of

entitled to full credit, is sufficient for proof of any fact, evidence." except perjury and treason.

Facts which wit

SEC. 599. A witness can testify of those facts only to which he knows of his own knowledge-that is, which are derived from his own perceptions-except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible.

ness can tes

tify.

Witness ex

SEC. 600. A witness can be heard only upon oath or amined un affirmation, and upon a trial he can be heard only in the in presence of presence, and subject to the examination, of all the parties, if they choose to attend and examine.

der oath and

all parties.

Presumptions in favor of witness.

SEC. 601. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence, and the jury are the exclusive judges of his credibility. SEC. 602. The rights of a party cannot be prejudiced by the declaration, act, or omission of another, except by another virtue of a particular relation between them; therefore, proceedings against one cannot affect another.

Rights of party not preju

diced by de

clarations of

party.

Admissions of person

holding title to real property evidence

against his successor in interest.

Res gestæ as evidence.

In dispute between parties

over obliga party, such

tion of third

obligation is prima facie

evidence be

tween parties in dispute.

Evidence of

SEC. 603. Where, however, one derives title to real property from another, the declaration, act, or omission of the latter while holding the title in relation to the property, is evidence against the former.

SEC. 604. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence as part of the transaction.

SEC. 605. And where the question in dispute between the parties is the obligation or duty of a third person, whatever would be the evidence for or against such person, is prima facie evidence between the parties.

SEC. 606. The declaration, act, or omission of a member of a family, who is a decedent, or out of the jurisdeclaration diction, is also admissible as evidence of common repuof member of tation, in cases where, on questions of pedigree, such reputation is admissible.

a family.

Evidence of a decedent against his interest.

SEC. 607. The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against

his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.

SEC. 608. When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence.

SEC. 609. There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases:

First. When the original has been lost or destroyed, in which case proof of the loss or destruction must first be made.

When part

evidence of en in evi

subject is giv

dence the

whole may be inquired into.

Evidence

of

Second. When the original is in the possession of the party against whom the evidence is offered, and he fails contents of to produce it after a reasonable notice.

Third. When the original is a record or other docu

ment in the custody of a public officer.

Fourth. When the original has been recorded and a certified copy of the record is made evidence by this code or other statute.

Fifth. When the original consists of numerous accounts or other documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

In the cases mentioned in sub-divisions three and four, a copy of the original, or of the record, must be produced; in those mentioned in sub-divisions one and two, either a copy or oral evidence of the contents.

SEC. 610. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and, therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:

writing.

Construction agreement.

of a written

tion of a writ

First.

Where a mistake or imperfection of the writing is put in issue by the pleadings.

Second. Where the validity of the agreement is the fact in dispute.

But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 614; or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties.

SEC. 611. The language of a writing is to be interInterpreta preted according to the meaning it bears in the place of its execution, unless the parties have reference to a different place.

ing.

Office of the

judge in construing a statute or instrument.

The intention

SEC. 612. In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein. -not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

SEC. 613. In the construction of a statute, the intention of the legislature, and, in the construction of the instrument, the intention of the parties, is to be pursued, of the legisla if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.

ture and of

parties to be pursued, if possible.

Circumstan

SEC. 614. For the proper construction of an instrument, the circumstances under which it was made, inwhich an including the situation of the subject of the instrument executed and of the parties to it, may also be shown, so that the

ces under

strument was

may

be

shown. judge be placed in the position of those whose language he is to interpret.

tions in con

SEC. 615. The terms of a writing are presumed to Presump have been used in their primary and general acceptation, struction of a but evidence is, nevertheless, admissible that they have a local, technical, or otherwise peculiar signification, and

writing.