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were dissipated and wasted by evaporation. As affirmative defenses the defendant then pleaded its expenditures, the nature of its works, the use to which it had been putting the water, the knowledge and acquiescence of the plaintiffs, and other matters from which it asked the court to decree that plaintiffs' cause of action was barred by their laches and by estoppel. After a protracted trial the court found in favor of the defendant upon substantially all the disputed matters. The findings of the court are attacked, and some 96 specifications are set forth and argued. Plaintiffs' opening brief366 pages in length-is largely devoted to an analysis of, and an argument upon, the evidence, in their endeavor to show that it does not support the findings of the court. The transcript contains about 1.000 pages of the evidence. To follow and answer plaintiffs' argument would amount to no more than a setting forth of the evidence which does sustain the findings, and to do this fairly would fill a volume of our Reports. It must suffice, therefore, to say that a critical examination satisfies us that the findings, one and all, are amply supported.

But briefly to illustrate the difficulty of discussing the findings within the broadest limits of a judicial opinion, the finding touching Menefee Valley may be instanced. The court found "that percolating waters in said Menefee tract do not connect with percolating waters in Perris Valley so that the water level in said Menefee Valley has been or can be affected by pumping water from lands in said Perris Valley." Upon this question a vast deal of evidence was introduced. Upon the part of the plaintiff, as has been said, it was contended that the subterranean connection between the two tracts of land was perfect, that the percolation and filtration was free, and that the direct effect of the pumping of defendant was to lower the water level in Perris Valley and to cause a corresponding lowering of the level in Menefee. Upon the part of the defendant it was shown that there was a decided ridge and elevation of ground between the two tracts so that certainly the surface drainage of the two were separate and distinct. Government topographical maps were introduced to show that the drainage of the basin of Perris Valley was down the San Jacinto river westerly to Lake Elsinore, while the drainage of the basin of Menefee Valley was distinctly separate and trended southwesterly through Salt creek. Expert witnesses were likewise called to testify to their belief that there was no subterranean connection between Menefee and Perris Valleys, and that their subterranean drainage outlets were likewise distinct. Certain of defendant's experts declared their belief in the existence of a more compact earth formation between Menefee and Perris Valleys which would effectually prevent and forbid anything like a free seepage or percolation of waters. Defendant, in support of

this, urges the existence of dry wells upon this divide; that is to say, that wells dug upon either side of it in Perris or Menefee Valleys carried abundant water, while wells upon this divide yielded very little, and for practical purposes none at all. This, in turn, was disputed by plaintiffs, who showed that they had sunk wells along the pretended divide, and these wells went into free waterbearing gravels. Defendant again answered this by saying that, conceding this to be so, the wells merely tapped the gravels; that the quantity of water which the wells would produce was not established by this, and still less that it did not establish a water communication between the two valleys; that the nonexistence of this water communication was demonstrated by the fact that the water level in the wells of Menefee Valley was about 62 feet higher than the water level of the wells in Perris Valley before any pumping had taken place; and, finally, that it was untenable to argue that Salt creek, into which Menefee Valley drained, with a grade of 48 feet and at a distance of 3 miles, would not lower the water level in the Menefee wells, which remained standing 48 feet above, while lowering the water level in Perris Valley 10 feet at a distance of five or six miles,

would cause the water level in the Menefee tract to lower 10 feet. This naked statement

of the conflicting evidence has been given to illustrate the technical nature of the testimony. When it is considered what astute arguments may be, and have been, raised upon either side in the analysis of it, it demonstrates the impossibility of attempting to discuss these arguments in all their varied pha

ses.

As we have said, it must suffice to say that the findings of the court are well sustained. Those findings were, first, as has been said. that there was no subterranean connection between the waters of Perris and Menefee

Valleys. This finding disposes of the alleged injury to plaintiff Newport's land in Menefee Valley. The court, in turn, found the existence of the layer of hard pan under Perris Valley, the alkaline nature of the soil, and the natural tendency of surface irrigation to draw this alkali to the top of the ground and thus destroy vegetation. Specifically it found "that about one-fourth of the lands of the plaintiff Newport plaintiff Newport in Perris Valley, ninetenths of the land of the plaintiff Hoffman, and about one-third of the land of the plaintiff Pierce, are so impregnated with alkali, or mountainous, as to be rendered thereby practically unfit for agricultural purposes. and the remainder of the lands of said plaintiffs in Perris Valley are adapted to growing grain in seasons of abundant and seasonable rain, but, during average years, such land cannot be profitable farmed, and, on account of hard pan, subsoil, and climatic conditions, said lands are of little value for agricultural purposes, and, when irrigated, do not

produce profitable crops with reasonable regularity and abundance." This finding is attacked as being unsupported by the evidence. It is further said that it is too indefinite in its declaration that the lands have "little value for agricultural purposes," and that when irrigated do not produce profitable crops with "reasonable regularity and abundance." The evidence showed that, of all the lands in Perris Valley owned by the plaintiffs, which lands aggregate some 5,590 acres, and which lands for the most part had been owned for 20, 15, or 10 years, less than 58 acres were being irrigated by these plaintiffs. The plaintiff Elisha H. Pierce so irrigated "35 acres, more or less," of alfalfa and 1 acre of trees and vines and vegetables, which could not be grown without artificial irrigation. The plaintiff William Hoffman, in 1902, irrigated less than one-eighth of an acre, upon which were growing a few vegetables and fruit trees. The plaintiff Waters for more than 5 years had been irrigating about 2 acres planted to trees, vines, and shrubbery. Plaintiffs Paggi, who purchased their land after the defendant's pumping plant was in operation, irrigated one-eighth of an acre of alfalfa and "20 acres more or less" of grape vines, while the plaintiff Newport never used any of the water in Perris Valley at all. We do not set forth the small quantity of the land so irrigated out of the tract of 40 or 50 square miles with any idea that, because the use was little, and the value small, the defendant and the inhabitants of Corona which it supplied should in any way receive any preference, or should for such reason be thought to have any superior right. Such an argument has no standing in a court of law and is distinctly repudiated. But it does serve to support the finding of the court that the land is arid and unprofitable. For it is not to be supposed that, with an abundance of water under the soil, if the soil itself was fit for cultivation, those waters would not long since have been used to transform the desert of Perris Valley into a fruitful garden. The court further found that, in the 3 years during which the defendant had pumped water from the valley, the plane of saturation had lowered some 10 feet. But it distinctly declared against the post hoc propter hoc argument that this lowering was caused by the pumping, and found that for several years prior to 1901, when the defendant commenced pumping, the long period of drouth that had existed for the previous 10 years, with the pumping of others than the defendant, had resulted in lowering the plane of saturation; that defendant's pumping has only contributed, with these other causes, to the lowering, and that there was no reason to believe that its continued pumping would in time exhaust the saturation or the water, but "with normal rainfalls and such as has been usual in the past 40 years in Perris Valley and surrounding country, said water plane will return to its former level, such as it was

before any water was pumped therefrom, and will continue to furnish sufficient water for the reasonable use of plaintiffs and defendant without being greatly or permanently lowered." Since the time when defendant commenced to pump in 1901, the finding is that the water plane has been temporarily reduced an average of about 10 feet-"part of which reduction has been caused by defendant, the remainder by plaintiffs, by third parties and by natural causes."

These findings so completely dispose of this controversy upon its merits that little is left to be said. It becomes wholly unnecessary to consider the court's finding of laches. Important as the consideration of this question must prove to be, where an absolute injunction is sought against work of public or quasi public benefit, such discussion must be postponed until the time when it necessarily arises. It is to be observed, however, in this case, that the plaintiffs do not ask for damages and an ancillary injunction until such damages are paid, but ask for an injunction absolute, without seeking monetary compensation. But, on the question of monetary loss, the showing is that the additional cost of pumping caused by the lowering of the water plane 10 feet would be, for alfalfa, the crop requiring the most water, not more than $1 per acre. So that $58 per year would fairly represent the monetary loss of these plaintiffs for all the land which they irrigated, even if the lowering of the plane were wholly attributable to defendant. But, as has been said, the finding of the court establishes that the lowering was due to the use of water by plaintiffs themselves, and by others, as well as to the natural cause of drouth, quite as much as to the operations of defendant. And, finally, upon this proposition it may be said that, where the interests of the public are involved and the court can arrive in terms of money at the loss which plaintiff has sustained, an absolute injunction should not be granted, but an injunction conditional merely upon the failure of the defendant to make good the damage which results from its work. Such an action, if successful, should be regarded in its nature as the reverse of an action in condemnation. The defendant in effect would be held to be damaging private property without just compensation first made to the owner, and, failing to make such compensation, should be enjoined from further damage. For, as was said by this court in Montecito Valley v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113, in a case similar to this, "a prohibitory injunction should only be granted if any and all other forms of relief should be found inadequate." In this case, however, the plaintiffs sought an absolute injunction. This they conceived to be their right under Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35, which had been decided but two months before the commencement of their ac

tion. The decision of Katz v. Walkinshaw is adhered to, but as plaintiffs, on the facts, failed to establish any ground for relief under the principles there laid down, no amplification of those principles becomes necessary.

The objections and exceptions to the admission and rejection of evidence taken at the trial do not call for detailed consideration. No one of the rulings adverse to appellants had any bearing upon the findings which we have considered so as in any way to have affected the result, and, for the foregoing reasons, the judgment and order appealed from are affirmed.

We concur: MCFARLAND, J.; SHAW, J.; ANGELLOTTI, J.; LORIGAN, J.; SLOSS, J.

On Rehearing.

PER CURIAM. Rehearing denied.

BEATTY, C. J. (dissenting). In their petition for a rehearing counsel for appellants make a point which I think should have received further consideration before any final disposition of the case. They contend that, if they are denied the injunction for which they prayed only because their injury may be fully compensated by money damages, such damages should have been allowed in this suit under their prayer for general relief, and that it was error, in view of the admitted fact that their lands are permanently damaged by the same unlawful acts which were enjoined in Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35, to turn them out of a court of equity without any relief and with a judgment against them for all the costs of a protracted litigation. The argument advanced in support of this proposition seems to me very cogent, and deserving of the further and serious consideration of the court; and for this reason I dissent from the order denying a rehearing.

(149 Cal. 704)

SNEED v. MARYSVILLE GAS & ELECTRIC CO. (Sac. 1,221.)

(Supreme Court of California. Sept. 20, 1906.) 1. EVIDENCE-OPINION EVIDENCE.

In an action for the negligent killing of plaintiff's intestate by touching or coming in close proximity to an electric wire there was evidence that decedent had knowledge at least of the danger of touching a charged electric wire. Held, that the admission of testimony of decedent's mother that he did not know the dangers of electricity was prejudicial error.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2242.]

2. WITNESSES-COMPETENCY-KNOWLEDGE OF

FACTS.

Under Code Civ. Proc. § 1845, requiring a witness to have knowledge of facts testified to, except in express cases, the testimony of a mother that her son had no knowledge of the danger of electricity is inadmissible, particularly where it is shown that her statement was based solely

on the fact that he had always lived with her and had never told her of such knowledge.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 80-85.]

3. TRIAL-OBJECTION TO EVIDENCE.

Where the court rules on the merits of an objection to the competency of evidence, made immediately after the answer, and directs the objector to ascertain the competency on crossexamination, and no point is made at the time as to the timeliness of the objection, such point is barred.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 183-190.]

4. SAME OBJECTIONS STATEMENT GROUNDS.

OF

An objection to a question as to whether the witness' son had a knowledge of the dangers of electricity, on the ground that it had not been shown that the witness knew anything about such knowledge, sufficiently presents the question as to the competency of such evidence. 5. DEATH-DAMAGES-AMOUNT.

Under the statute the damages to be recovered by an administrator for an injury causing the death are limited to the pecuniary loss suffered by the heirs of decedent by reason of his death, including both the deprivation of that to which the heirs would have been legally entitled had the decedent lived, and that which it might be reasonably expected they would have received from him, although only a moral obligation rested on him in relation thereto.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Death, § 112.]

McLaughlin, J., dissenting in part.

In Bank. Appeal from Superior Court, Yuba County; K. S. Mahon, Judge.

Action by Elizabeth M. Sneed, administratrix of James L. Sneed, deceased, against the Marysville Gas & Electric Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Garret W. McEnerney, William B. Besley, Forbes & Dinsmore, and F. P. Deering, for appellant. W. H. Carlin, for respondent.

SHAW, J. This is an action to recover damages for the death of the deceased, James L. Sneed, alleged to have been caused by the negligence of the defendant. Plaintiff recovered judgment, defendant moved for a new trial, and its motion was denied. The defendant appealed from the judgment, and also from the order denying its motion for a new trial. The action was begun by James A. Sneed, the father of the deceased, as the administrator of the estate. After judgment, James A. Sneed died and the present plaintiff was substituted in his place, as administratrix and as plaintiff. The deceased, at the time of his death, was in the service of the defendant in the capacity of a plumber or plumber's assistant. and was engaged in the work of joining two pieces of pipe at the top of a water tank house owned by defendant. At an elevation about five feet higher than the platform on which he was at work there were eight wires stretched, each carrying a high potential electric current of 16,000 volts, the wires and electric current being owned, controlled,. and managed by the defendant. The nearest

of these wires was about five inches away from a vertical line extended upward from the edge of the tank house platform, so that, if the deceased attempted to stand erect with his head projecting over the edge of the platform, he would inevitably come in contact with or near to this wire. His death was caused by the electric current from this wire entering his head as he made the attempt to stand erect, while at the same time having his head bent over forward looking down at a fellow workman on the ground below.

The particular charge of negligence against the defendant was that the place, as above described, where deceased was at work was, by reason of the proximity of the wires and the powerful electric current carried by then, a place of danger; that the deceased did not know the nature or properties of electricity, nor the dangers incident to coming in close proximity to the said wires carrying said electric current; that defendant, with full knowledge of the dangers arising from the proximity of said wires and electric current to said platform, and of the ignorance of the deceased concerning the same, put him to work thereon. without instructing him, or warning him of the said dangers. Under the issues it became material and important to ascertain on the trial whether or not the deceased, prior to his death. had any knowledge of electricity and the dangers arising from its use on the said wires. Evidence was given on this issue by both parties, and the jury specially found that the deceased did not have such knowledge. It is earnestly claimed by the defendant that the competent evidence is not sufficient to sustain this finding. There was evidence tending to show, and defendant insists that it was sufficient to prove, that he did possess that knowledge. It is necessary to mention this only for the purpose of demonstrating the importance of excluding from the jury any incompetent evidence on the subject, and to show that injury was likely to be caused by the admission of improper evidence tending to prove such lack of knowledge. The present plaintiff, the mother of the deceased, was a witness for the plaintiff. She testified that at the time of his death the deceased was 22 years of age and had lived with her all his life, that he had been working out for himself ever since he was 19. and was working for defendant in its gas department on September 17, 1901, the day of his death. Thereupon the following question and answer was asked and given in her examination in chief: "Q. Did he, up to that time, have any knowledge of electricity or its dangers? A. IIe had no knowledge." Objection was made to this on the ground that it had not been shown that the witness knew anything about the knowledge of the deceased regarding electricity or its dangers. The court overruled the objection, remarking to defendant's counsel, "You

On

can find out on cross-examination." cross-examination on the subject she testified that he had for three or four months before his death, worked for defendant as a plumber, and had previously worked in the same occupation at the woolen mills; that she had been at the woolen mills and had seen him working there six or seven times, about half an hour each time; that she did not think they had any electric motors or wires at the woolen mills; that she did not know that he had run a motor there, and did not think he did; that he did not learn of electricity or its dangers either in his work at the woolen mills or in his work for the defendant; that she knew he knew nothing about it; and that the only reason she had for saying this was that he always told her everything he was doing anywhere, and that if he had learned of electricity and its dangers he would have told her something of it, and that he had not told her anything about it. Thereupon the defendant moved the court to strike out the testimony of the witness as to the lack of knowledge of deceased, on the ground that it was hearsay, and the motion was denied.

In these rulings we think the court erred. There was evidence on behalf of the defendant to the effect that electric motors were installed and used in the woolen mills while Mr. Sneed was working there; that he was there instructed how to run the motor and informed of the danger from contact with wires carrying electricity. While it may be that there is no evidence that he was ever informed that one might receive what is called a "brush discharge" from coming in close proximity to highly charged wires, without actual contact therewith, there clearly is evidence that he knew the danger arising from such contact. The evidence leaves it doubtful whether the death was caused by a "brush discharge" or by a discharge from actual contact with the wire. In view of this condition of the evidence, the action of the court in practically informing the jury that they could consider, as evidence on the question, the positive declaration of the mother that he had no knowledge of any such danger, would probably be taken by the jury as highly significant, and, if this declaration was incompetent, its admission must be presumed to have been injurious to the defendant. That it was incompetent, under the circumstances shown, is clear. Ordinarily one person cannot know what is in the mind of another, and direct testimony by a witness that another knows or does not know a particular fact is, for that reason, in most cases improper. Such knowledge can only be shown by his declarations, or inferred from circumstances, and proof of it can only be made by proof of his declarations or of .circumstances from which it can be inferred, as that he was, or was not informed, or that he was in a position from which he could, or could not, see, and such like conditions. "A

witness can testify of these facts only 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." Code Civ. Proc. § 1845. This section is inaccurate, so far as it refers to the admission of the declarations of others as an exception. In such case the witness testifies merely to the making of the declaration, which he must have heard in order to be a competent witness to testify to it, and hence, the fact to which he testifies Ys a fact within his own knowledge, derived from his own perceptions. With respect to opinions and inferences, the only exceptions to this general rule at all similar to the case at bar bar are the opinions of subscribing witnesses to a writing, and of intimate acquaintances of a person as to the sanity of such signer or person (Code Civ. Proc. § 1870, subd. 10), and those cases where, from the nature of the case and the difficulty of accurately describing in words the facts on which the inference or opinion is based, a witness is allowed to testify directly to the conclusion or inference that another person was, on a particular occasion, angry, calm, agitated, excited, intoxicated, rational, or irrational, and the like. Holland v. Zollner, 102 Cal. 638, 36 Pac. 930, 37 Pac. 231; People v. Manoogian, 141 Cal. 592, 595, 75 Pac. 177; People v. Lavelle, 71 Cal. 351, 12 Pac. 226; People v. Sanford, 43 Cal. 29. We, of course, are not speaking here of expert opinions in matters of science or special knowledge. None of the cases go so far as to hold it competent for a witness to testify directly that another person was, or was not, possessed of knowledge or learning of, or concerning, a particular fact. We can see no reason for extending the exceptions to the general rule so far as would be necessary to sustain the admission of the testimony in question. And this is especially true of the denial of the motion to strike out the testimony after the cross-examination, which the court suggested, had disclosed that the witness had no means of knowing the knowledge possessed by her son, other than his silence on a subject as to which there was no especial reason for him to speak to her.

The respondent makes some technical objections to the consideration in this court of the question of the competency of this evidence. The first one is that the objection to the question came too late, being apparently made after the question was answered. In the bill of exceptions the objection seems to have been made immediately after the answer, and there is nothing to indicate that there was not time to make it sooner, except the fact that the answer is very brief. We think, however, that the conduct of the court in apparently making the ruling on the merits of the objection, instead of on the point that the objection was not timely, and in directing defendant's attorney to ascertain the

facts bearing upon the objection on the crossexamination, should be considered as a bar, to the point that the objection came too late. The attorney might well have inferred therefrom that the court was ruling on the objection on its merits, waiving the point that it was untimely, and consequently may have been led to refrain from claiming that the answer was given before he had time to object. There is nothing to indicate that the court did not so consider the matter, or that counsel for plaintiff was then relying on the point that the objection was too late, or was in any respect misled or injured by the lateness of the objection. The ground of the objection substantially presented to the court the question of the competency of the evidence sought to be elicited. The testimony of a witness as to the knowledge possessed by another is incompetent evidence, because the witness can have no knowledge of the fact to which he is asked to testify. Hence the objection that it had not been shown that the witness knew of the knowledge possessed by the deceased was, in substance, an objection that the evidence proposed is incompetent. It was merely a specific statement of the particulars which rendered the evidence incompetent. We do not think it necessary to consider the sufficiency of the evidence to sustain the allegations that the deceased was uninformed of the dangers arising from the use of electricity and its transmission through wires, that the defendant was aware of his ignorance in these particulars, and that it failed to instruct him concerning the same, or inform him of the danger incident to the place of his employment and the proximity thereto of a high potential electric current. The evidence upon another trial may be different, as also may be the verdict.

It is further contended by the appellant that the damages allowed by the jury were excessive, and a considerable part of the argument on both sides is devoted to this subject. Inasmuch as a new trial will be necessary because of the error in the admission of evidence, as heretofore stated, we do not consider it proper to discuss the question of excessive damages. With regard to the measure of damages, in view of the argument made, and of the probability of another trial, it is proper to that say that it is definitely settled that, under our statute, the damages to be recovered for an injury causing death are always limited to the pecuniary loss suffered by the heirs of the person killed. by reason of his death. Munro v. Dredging Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Morgan v. S. P. Co., 95 Cal. 516, 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143, Pepper v. S. P. Co., 105 Cal. 401, 38 Pac. 974; Green v. S. P. Co., 122 Cal. 566, 55 Pac. 577; Wales v. Pacific E. M. Co., 130 Cal. 523, 62 Pac. 932, 1120; Keast v. Santa Ysabel, etc., Co., 136 Cal. 266, 68 Pac. 771; Dyas v. S. P. Co., 140 Cal. 308, 73 Pac. 972; Hillebrand v. Standard B. Co., 139 Cal. 236, 73

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