aries and knows that there are settlers thereon other than himself, but the whole of said lands have been segregated for more than six months prior to making this application and filing this affidavit;" that said lands are suitable for cultivation and that affiant is an actual settler thereon. The court found the substantial averments of the affidavit to be true. The reference to the court was made July 11, 1901, and the complaint was filed September 7, 1901. The court found that the land was, on December 1, 1870, segregated by the United States, and that the plats showing the line of segregation were filed in the Marysville land office on that day and the land was listed to the state as swamp and overflowed land on April 11, 1871, and on August 30, 1871, was patented to the state and that said land was sectionized and the plats filed in the said land office prior to October 10, 1870. It was alleged in the complaint and found by the court that the Johnson affidavit was defective and void, in this, that the statement therein as follows: "He does not know of 'any legal or equitable claim other than his own to the said land' was, is and at all times has been wholly false"; that plaintiff was at the filing of said affidavit in possession and occupancy as his home of a certain portion of the land known as "The Island," situated in the southwesterly portion of the N. W. 4 of said section and that plaintiff occupied and had cultivated about seven acres and had his dwelling on the southerly portion of "The Island" and had an equitable claim to said island under the act of April 4, 1870, supplemental, to the act of March 28, 1868 (St. 1869-70, pp. 878-879, c. 575); and that said Johnson knew at the time he filed his said affidavits, of plaintiff's said possession and claim and knew that plaintiff had a preferred right to purchase said tract known as "The Island", on which plaintiff now resides and ever since 1856 has resided, using the same for farming purposes. It appeared that the island was at that date formed by the river surrounding it. Johnson died in 1880, after having conveyed his claim to an interest in said land and his certificate of purchase, and one Griggs and one Hawk as tenants in common succeeded to Johnson's rights through whom defendants claim by mesne conveyances. The evidence was that Johnson lived on the portion across the river east of the island and was farming the land, as did his successors also, and the relations of plaintiff to these people and the situation of the land leaves no doubt that plaintiff knew of the occupancy by Johnson, and defendants after him, of the lands not in his own possession. The court found that plaintiff was not a trespasser upon any part of the lands and that, at the time of his application in 1901, he "was an actual settler upon and claimed the whole of the land applied for and since

said application has resided upon and claimed the whole of said lands applied for, and that plaintiff in good faith sought to purchase the lands described in his said affidavit, that he had substantial improvements upon said lands * * * and made said application to said lands in good faith.” The court did not find directly on the issues as to the alleged knowledge of plaintiff, when he filed his application, that he, plaintiff, knew of Johnson's prior application and knew that defendants were in good faith claiming the lands as successors of Johnson. The evidence showed that plaintiff must have known that defendants as successors of Johnson were claiming the lands now occupied by the plaintiff, namely, the lands not embraced in the island tract and plaintiff's application states that there were other occupants of the land beside himself.

The court found that the land had been segregated at the time alleged in the answer, to wit, December 1, 1870, and that the approval of Johnson's said application by the surveyor general and the issuance of said certificate of purchase to Johnson were in fact not done, given or made within six months after the lands were so segregated. But the court found "that it is not true that plaintiff has lost his right to purchase said lands by any laches or by reason of not having made application to purchase the same from the state within 90 days of the filing of the said plats in the Marysville land office, showing the said line of segregation." conclusions of law the court found that the Johnson application and the approval thereof were void, and that the certificate issued to Johnson be annulled, and that plaintiff's application be approved and he be permitted to purchase the lands described therein, and judgment passed for plaintiff in accordance therewith.

As

The statutes in force when Johnson made his application were the act of March 28, 1868 (St. 1867-68, p. 507, c. 415, pt. 2, §§ 28, 29, p. 514) and the act of April 4, 1870, supplementary thereto (St. 1869–70, p. 878, c. 575). The act of 1868 required the person making application to purchase swamp and overflowed land to state in an affidavit among other things, "that he does not know of any legal or equitable claim to said lands other than his own; *** which application and affdavit shall be filed in the office of the surveyor of the country in which said lands *** are situate, who shall make survey of the land as required by section 18 of the act." The act of 1870 provides that "all settlers upon swamp and overflowed lands belonging to the state, whose settlement is evidenced by actual inclosure, or by ditches, plow furrows, or monuments, showing clearly the metes and bounds of their possessory claim, and the same are occupied for purposes of tillage or grazing, are hereby recognized as possessing an equitable claim to

the land so inclosed or occupied by them, within the true intent and meaning of the act to which this is supplementary; and are declared preferred purchasers for such lands to the extent of such inclosure or occupancy." It is made the duty of the county surveyor to return surveys of such settlers to connect with the United States surveys. The act also provides that "the Surveyor General of the state shall not approve, nor the register of the state land office issue, title for any swamp and overflowed land, until six months after the same shall have been segregated by authority of the United States or of the state by legislative enactment; and for ninety days after the filing of plats showing said line of segregation in the United States Land Office for the district in which the land is situate, the settlers possessing equitable claims under section one of this act shall be deemed preferred purchasers and shall file their applications for surveys of their possessory claim with the county surveyor * days."

* within ninety

It is well settled that in the purchase of state lands the requisites of the statute must be stated in the affidavit and must be true, and that the hearing of a contest as to such lands must be shown to be true, or no right to the land can be awarded by the court. McKenzie v. Brandon, 71 Cal. 209, 12 Pac. 428; Harbin v. Burghart, 76 Cal. 119, 18 Pac. 127: Davidson v. Cucamonga Fruit Co., 78 Cal. 4, 20 Pac. 152, and many other cases. At no time have defendants been entitled to patent, not having paid the purchase money and interest. The legal title to the land has at all times been and now is in the state. If Johnson acquired no right to any part of the land under his certificate of purchase the land was open to location in 1901, when plaintiff made application to purchase. Johnson's successors in interest stood in his shoes and occupied no better or different relation to the land or to the state than did Johnson. When this cause was submitted for decision to the appellate court of the third appellate district Justice McLaughlin delivered the following opinion: "On October 10, 1870, nearly two months prior to the segregation of the land in controversy by the United States government, the predecessor in interest of the defendants made an affidavit stating his desire to purchase lands lying on the left bank of the Sacramento river, and being the fractional N. W. 4 of section 19. This affidavit also contained the statement that he did not know of any legal or equitable claim to the land other than his own. The land was segregated from the public domain of the United States on December 1, 1870, and at that time the plaintiff was occupying an island which was entirely surrounded by the waters of the Sacramento river. The island was originally a peninsula connected with the main land by a narrow strip or neck of land, but the river

cut through this neck a few years prior to. plaintiff's entry upon the land. The exact date of this severance does not definitely appear, but I regard this as unimportant, in view of the uncontradicted testimony of the plaintiff to the effect that "The old river channel is deep and has always run all the way around the island.' Transcript, fol. 167. This testimony was designed to show that the land was so surrounded that an actual inclosure was unnecessary, but to my mind it convincingly demonstrates that Johnson, the mesne grantor of defendants not only intended to but that he did actually state the truth when he expressed his desire to purchase land on the left bank of the river, and stated that he knew of no legal or equitable claim thereto other than his own. The main, central, controlling description of the land affiant had in mind when making his application and oath, and which he expressed a desire to purchase, was 'a certain tract of swamp and overflowed land on the left bank of the Sacramento river.' The subsidiary description it being the fractional N. W. 4 of section 19' should not be given undue weight. Testing the truth of the statements made by the affiant 36 years ago, by the then existing conditions, it may reasonably be assumed that he knew little, if anything about government subdivisions or the line of public surveys, but he did know of that island in the river which could not be said to be on either bank thereof. In order to convict this affiant -long since dead-of an untruth, we must not only disregard the general description in the affidavit, but must also place a technical meaning on the word 'fractional' as used in the subsidiary description. Thirty-six years have elapsed since the affidavit was made; the affiant's lips cannot speak his defense or explanation of the statements made; the land has passed through mesne conveyances to others; the plaintiff has slept for many years on rights he now asserts, and if there ever could be a case where rules of construction should be invoked in favor of innocence of untruth or crime, or wrong, it is this.

And

it seems to me that the affidavit is reasonably susceptible of an interpretation which would acquit the affiant of perjury and relieve his successors from the results flowing from a contrary construction.

"But conceding that the statements in the affidavit were false, when it was made, there are cogent reasons for measuring their truth or falsity by conditions existing when it was used as the basis for the claim of title upon which appellants rely. Admitting that the plaintiff had a legal or equitable claim as a preferred purchaser to the land occupied by him, when the affidavit was made and the land was segregated, such claim was forfeited before any action was had upon the false affidavit. The land was segregated on December 1, 1870, and the plaintiff was by law given 90 days from that date to make his

application. After March 1, 1871, he could assert no lawful or superior right to this land as against any applicant having the necessary qualifications. On June 1st, 1871, the Surveyor General could approve any survey and issue evidence of title thereto to any person applying to purchase the same. It results, that when the survey was made at Johnson's instance, on July 18, 1871, the plaintiff had, by lack of diligence in the assertion of rights reserved to him for a limited period, lost his claim or right to preference, and any person could then assert that he had no preferred legal or equitable claim to the land he occupied. On that date it might be said that he had no legal or equitable claim to such land. On July 21, 1871. when the survey made at Johnson's request was received at the state land office, the affidavit to which such survey was attached was in its essence true. But at that time, the survey was found to conflict with another survey made by the same official, and approval was refused and the papers were returned. This was, to all intents and purposes, the end of the matter, and the finale. of all proceedings initiated by the affidavit. Strictly speaking, and the plaintiff invokes and relies upon strict construction of rules. and papers. Johnson's application had failed, and proven abortive, and he, too, had lost his preferential rights. In strictness, a new application and survey were necessary. Matters were allowed to rest as they were when the papers were returned, for more than two years. The approval of a new survey on September 9, 1873, shows that during this time no application for purchase or survey of this land was made by any person. On that date a new survey attached to the old affidavit was filed by Johnson, and approved. Payment was made and a certificate was issued. Had Johnson made another affidavit as of any date subsequent to July 21, 1871, and attached it to the new survey, there could hardly be a question touching the validity of the title evidenced by the certificate of purchase. But, unfortunately, the old affidavit was used in making the second application, and the question arises whether the mere use of the old instead of a new certificate, will destroy the effect of the certificate. In my opinion, the truth of the statements in the affidavit accompanying the record survey, upon which the certificate rests, must be tested by the conditions existing after the rejection of the first application and survey. In other words, the affidavit which was used on both applications, must be treated as a new application made subsequent to the time of such rejection. It should be measured by the same standard, and tested in the same crucible as if it was an entirely new affidavit bearing date subsequent to July 21, 1871. In fact it must be viewed as having been made on September 9, 1873, when the Surveyor General sealed it with his approval, notwithstanding

his knowledge of the original conflict with the McGriff survey and application. It was so treated and tested by the Surveyor General, and I cannot see why this or any court should adopt another rule of interpretation, harsh in its rigidity, and unjust and inequitable in its effect on the rights of persons who were lulled into fancied security by the muniment of title granted by an agent of the state. I am aware that equitable considerations cannot be invoked to avoid the consequences of willful perjury committed by an applicant to purchase state lands. I am fully cognizant of rules which place subsequent purchasers in the shoes of the applicant with no greater modicum of equitable or legal rights than he possessed. But the law respects form less than substance.' and, in my opinion, it is only by a rigid adherence to form, and by making all subsequent proceedings relate back to the time the affidavit was made, that the plaintiff, who slept the sleep of indifference, carelessness, and negligence for 30 years, can now be permitted to take not only what he then claimed, but also that which Johnson admittedly possessed and which others have innocently acquired. The conduct of Johnson in failing to make any claim to the island or any effort to oust Waters from his island home may have induced the latter's slumbers, but such conduct most eloquently attests that Johnson meant to tell the truth in 1870 and in 1873 and his constant belief that he had done so. The penalties of perjury are entailed only by those who intentionally swear to an untruth, and the circumstances of this case would certainly acquit Johnson of intentional wrong. The earmarks of fraud are evidenced by acts indicating a willful intent to profit by its perpetration. Looking at the substance of things, and brushing aside all films and cobwebs of technical construction, the conduct of the affiant clearly demonstrates that he neither intended to defraud the state or deprive the plaintiff of his land. If he ever entertained such intention his conduct was incomprehensible, for, during the subsequent years of his life he made. no attempt to profit by his fraud or reap the reward of his perjury. Under these conditions it is indeed a harsh construction which results in reproach to his memory and spoliation to his successors. In my opinion such construction is unnecessary, and the more charitable and equitable interpretation is most reasonable, and hence I am firmly convinced that rules of law as well as considerations of justice demand the reversal of the judgment."

We are of opinion that the construction which is thus placed upon the Johnson certificate is as reasonable as it certainly is equitable. It leaves to plaintiffs and defendants their possessory rights to the lands which they were actually occupying. For which reason the foregoing opinion is adopted and approved as the opinion of this court, and the judgment appealed from is reversed.

(149 Cal. 772)

BUNDY v. SIERRA LUMBER CO.
(Sac. 1,274.)

(Supreme Court of California. Oct. 1, 1906.) 1. APPEAL-VERDICT-CONCLUSIVENESS.

A verdict on conflicting evidence is conclusive on appeal.

2. SAME ADMISSION OF EVIDENCE - OBJECTIONS-CHANGING GROUND.

A party objecting to the testimony of a witness on the ground that it was immaterial, incompetent, and irrelevant, cannot on appeal urge that the subject to which the testimony related was not a subject for expert testimony, and that the witness had not qualified as an expert.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1430.]

3. MASTER AND SERVANT INJURIES TO SERVANT-NEGLIGENCE-EVIDENCE.

An employé suing for injuries received, while operating a train over a trestle, in consequence of the fall of the trestle, who alleges as a ground of recovery that the employer negligently permitted the trestle to become defective, must show that the employer had knowledge of the defective condition, or could, by reasonable inspection, have discovered it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 243-251.] 4. EVIDENCE-DECLARATIONS OF EMPLOYÉ—

ADMISSIBILITY.

Where, in an action for injuries received by an employé in consequence of the fall of a trestle while running a train over it, a right of recovery was based on the employer's negligence in permitting the trestle to become defective, it was shown that it was the duty of the section foreman to look after the trestle and require a trestleman to repair it, evidence that the foreman, a short time before the accident, requested a third person to tell the trestleman to go to work on the trestle and repair it, that the trestle was going down and that it was in bad shape, was admissible as showing knowledge on the part of the employer that the trestle was defective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 887, 898.]

5. SAME RES GESTE-DECLARATIONS OF EMPLOYÉ.

The declaration of the foreman, being illustrative of his act in sending notice to the trestleman to repair the trestle, was admissible as a part of the res gestæ.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 297, 308, 331.]

6. MASTER AND SERVANT-INJURY TO SERVANT NEGLIGENCE EVIDENCE-ADMISSIBILITY.

In an action for injuries to an employé in consequence of the fall of a trestle while running a train over it, evidence that an expert trestle builder had, prior to the accident, called the attention of the manager of the road to defects in the trestles on the road, and to the trestle that fell, was admissible as bearing on the question of the negligence of the employer In failing to obviate the defect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 923.]

7. EVIDENCE - SUBJECTS OF EXPERT TESTIMONY-CONSTRUCTION OF RAILROAD TRES

TLES.

An expert trestle and bridge builder is competent to testify as to how a trestle in a logging railroad should be constructed, considering the purposes for which it was intended to be used.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2349-2352.]

8. MASTER AND SERVANT-INJURY TO SERVANT-NEGLIGENCE-EVIDENCE-ADMISSIBILI

TY.

That an employé, injured by the fall of a trestle while operating a train over it, sought to recover on the theory, either that the trestle was not properly constructed originally, or that it had been suffered to go to decay, did not preclude proof as to how the trestle in its entirety, including guard rails, should have been properly constructed, it appearing that the guard rails, though primarily intended to prevent derailment, strengthened the trestle.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34. Master and Servant, §§ 920, 921.] 9. EVIDENCE-EXPERT TESTIMONY.

An expert railroad trestle and bridge builder may testify that trains running over a trestle have a tendency, in consequence of the vibration caused thereby, to loosen spikes driven in the bracing, and thus shake loose the bracing itself.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 2356.]

10. SAME.

An expert railroad trestle and bridge builder may testify that a trestle is more securely constructed by the use of bolts through the bracing rather than by the use of spikes.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20. Evidence, §§ 2349-2352.]

11. MASTER AND SERVANT-INJURY TO SERVANT-NEGLIGENCE-EVIDENCE-ADMISSIBILI

TY.

In an action for injuries to an employé while running a logging train over a trestle in a logging road in consequence of the fall of the trestle, the court properly sustained obpections to questions on cross-examination asked an expert trestle builder as to whether the trestle, as he had testified it should have been constructed, would bring absolute safety to the employés of the road, and whether it would be sufficiently safe for a passenger train to run over, the question being simply whether the trestle as constructed or maintained by the employer was a reasonably safe one for the uses to which it was subjected.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 172, 865, 872.] 12. APPEAL-EXCLUSION OF EVIDENCE-HARMLESS ERROR.

The error, if any, in sustaining objections to questions asked a witness is harmless where the witness has fully testified on the subject.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4194-4199.] 13. MASTER AND SERVANT-INJURY TO SERVANT CARE REQUIRED OF EMPLOYER-IN

STRUCTIONS.

Where, in an action for injuries to an employé while operating a logging train over a logging road in consequence of the fall of the trestle therein, the court gave as requested a part of an instruction correctly stating the rule as to the degree of care necessary to be exercised by the employer in constructing and maintaining the trestle, it was not error to refuse the other part of the instruction asserting that the employer was not required to use the degree of care in the construction of a trestle that would be required of a railroad company in the performance of its duty toward passengers. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1148-1161.]

Department 2. Appeal from Superior Court, Tehama County; John F. Ellison, Judge.

Action by George Bundy against the Sierra Lumber Company. From From a judgment for plaintiff, defendant appeals. Affirmed.

LORIGAN, J. This action is brought by plaintiff to recover damages for personal injuries sustained in the discharge of his duty while in in the employment of defendant. Plaintiff on September 23, 1901, was an engineer engaged in operating a "logging train" over the railroad of defendant in hauling logs from Beale Camp to its mill at Lyonsville, a distance of about 15 miles. The railroad of defendant between these points crossed a high trestle known as the "Big Wible Trestle," which, while the plaintiff was passing over it, on the date mentioned, with a logging train, went down with the engine and cars, and plaintiff was severely injured. The complaint alleged that the fall of the trestle was occasioned through defects in the construction, care, and preservation of said trestle, and through the negligence of defendant in allowing the timbers of which said trestle was constructed to become worn, rotten, and decayed, and, without any fault of plaintiff, the said trestle gave way and the said track, locomotive, and train were precipitated to the ground below and demolished. The case was tried by a jury, which returned a verdict in favor of plaintiff for $2,500. fendant moved for a new trial, which was denied, and this appeal is taken from such order of denial.

De

As grounds for a reversal, it is urged that the evidence is insufficient to justify the verdict, and that certain errors were committed by the court during the trial.

The claim that the evidence was insufficient is untenable. The evidence in the case was mainly directed on both sides to showing the character of the trestle as originally constructed, and the condition it was in at the time it fell. The evidence upon the subject, it may be said, was conflicting, but in this conflict there certainly was sufficient evidence produced by plaintiff to warrant the jury in finding, not only that the trestle was defectively constructed originally, but also to warrant a finding that at the time it fellsome 12 years after its construction-its timbers had become rotten, loose, and insecure to such an extent as to render the trestle unfited for the purpose for which it was constructed and was being used. And, the evidence being so conflicting, the finding of the jury under the conflict is conclusive, and not subject to review here.

Now, as to the errors of law complained of which we deem merit consideration.

Richard Gernon, a surveyor and civil engineer, skilled in bridge and trestle building, was called as a witness for plaintiff, and testified, both from observation and as an expert, to the manner in which the trestle in question was originally constructed, the defects in such construction, and how it should have been reconstructed to have been reason

designed. During his direct examination he testified as to the kind of stringers used, the manner in which they were placed on the trestle, and their effect, and was then asked: "Q. And you knew the manner that the stringers were placed upon the trestle? A. I did. Q. Now I ask you whether that was the safe way for the construction of a trestle or bridge of that kind, considering the purpose for which it was used?" to which the witness responded in the negative. To the latter inquiry defendant interposed an objection on the ground that it was "immaterial, incompetent, and irrelevant," which being over. ruled he excepted, and now claims that the court erred in its ruling.

In this court he insists that the objection should have been sustained for two reasons: First, because the matter was not a subject for expert testimony; and secondly, because, if it was, the witness had not qualified as an expert. There is no merit whatever in the second ground of objection. The evidence shows beyond question that the witness qualified as an expert. But, even if it did not, we think, under the general objection made by appellant, it cannot now, for the first time in this court, on account of both or either of the specific reasons, or particular ground of objection that it urges here, but which it did not directly present to the lower court, be heard to question the accuracy of the ruling. Without passing on the point whether or not the matter involved in the question was the subject of expert testimony, we do not think that, under the general objection presented, the appellant can now specifically raise it on this appeal. If the objection was intended to raise that question, it should have been directly made. Certainly it was proper for the plaintiff to prove that the stringers, as placed upon the trestle, and their number, were insufficient to render it a safe structure. If the method adopted to do so was not proper it should have been directly pointed out in the objection. To require this is simply a matter of fairness and justice in order that cases may be tried on their merits. Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry, or reframed his question to obviate the particular objection. Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application, that, under an omnivagant objection to a question, they can apply with legal accuracy some particular principle of law, which the objection does not specifically present. Counsel for appellant could just as