Error from district court, D county; before Justice John C. Tarsney.

Action by Nicholas Sauer and others against the board of commissioners of D county. Judgment for plaintiffs. Defendant brings error. Reversed.

John F. Stone and George S. Green, for plaintiff in error. E. M. Bamford, for defendants in error.

HAINER, J. This was an action brought in the district court of D county by the defendants in error against the board of county commissioners of D county, to recover $238, with interest thereon, upon a county warrant issued by the county commissioners of said county to J. T. Lemons, on July 30, 1892; said warrant being subsequently purchased by the plaintiffs for value and in good faith. The answer of the defendant to the plaintiff's' petition contains the following averments: (1) Defendant admits all the material allegations of the plaintiffs' petition not hereinafter denied. (2) Defendant alleges that the territorial board of equalization completed its labors for the year 1893 on the 26th day of July, 1893; that the assessment then and thereby completed was the first assessment of said county ever made for the purposes of territorial and county taxation, and that the amount of such assessment was the sum of $80,473.30; that the warrant declared upon in said petition was issued, and the services were rendered in settlement of which such warrant was isued, prior to the completion of said first assessment, wherefore defendant alleges, further, that the warrant sued upon in the petition filed in this action is void, as being issued and creating a debt in excess of 4 per cent. of the last assessment of said county for purposes of territorial and county taxation preceding the creation of such debt, and in violation of the provisions of the act of congress approved July 30, 1886, entitled "An act to prohibit the passage of local and special laws in the territories of the United States, to limit territorial indebtedness, and for other purposes." (3) Defendant alleges, further, that the warrant declared upon is null and void for the reason that the board of county commissioners, by whom such claims were allowed, and by whom the expenses were incurred in settlement of which the said warrant was issued, had no legal authority to incur such expenses, or to issue such warrant in settlement thereof, and that such expenses were not a legal charge against said county, and were not by law authorized to be incurred by said board of county commissioners against said county; that no part of such account was incurred for the building or repair of bridges, the said warrant being issued in settlement for locating and working a road between the village of Taloga, in said county, and the village of Woodward, in the Cherokee Strip; that all of the labor charged for and services render

ed for which such warrant was issued, except the amount of $50, was incurred in working the roads outside of the limits of said county. To this answer the plaintiffs demurred, upon the ground that said answer does not state facts sufficient to constitute a defense to plaintiffs' petition. The court sustained the demurrer to the answer, to which ruling of the court the defendant at the time duly excepted, and declined to plead further in said action. The plaintiffs then offered in evidence the warrant sued upon, and thereupon the court entered judgment in favor of the plaintiffs, and against the defendant, for the sum of $300.90, and costs of the action. A motion for a new trial was duly filed by the defendant, which was considered and overruled by the court; to which ruling and judgment of the court the defendant duly excepted, and brings the case here on a casemade, to be reviewed by this court.

This appeal presents but one question; that is, did the court err in sustaining the plaintiffs' demurrer to the answer of the defendant? There are two separate and distinct defenses pleaded in the defendant's answer: (1) That when the debt was incurred and the warrant issued the county was indebted beyond the federal limit; and (2) that the entire debt for which the warrant was issued, except $50, was incurred for services performed in working roads beyond the limits of the county, and hence the indebtedness, except said amount, was not a legal charge against the county. The warrant sued upon in this action was prima facie evidence of the validity of the claim for which it was issued. The presumption of law is that the warrant was issued for legitimate county purposes, and that it was not issued in contravention of the federal limitation. But it was competent for the county to plead and prove as a defense to the action that its indebtedness was in excess of the federal limit at the time the debt was created, or that the warrant was issued for an illegal corporate purpose. We think the answer clearly raises these questions; hence the court erred in sustaining the plaintiffs' demurrer thereto. The judgment of the district court is therefore reversed, and the case is remanded, with directions to overrule the demurrer.

TARSNEY, J., having presided in the court below, not sitting; all of the other justices concurring.

BAY CITY BUILDING & LOAN ASS'N v. BROAD et al. (S. F. 2.206.) (Supreme Court of California. June 7, 1900.)

APPEAL AND ERROR-UNDERTAKING-AMEND

MENT.

Code Civ. Proc. § 954, provides that, where an undertaking on appeal is insufficient, a new undertaking may be given. The body of an appeal bond, which was in the proper form, contained the signature of but one surety, while below that signature was an affidavit signed

by the same surety and another person, stating that "they are the persons named in and who subscribed the foregoing undertaking as the sureties thereto." Held that, where a new undertaking was filed containing the signatures of the two sureties to the body of the bond, it was within the permission of the statute, and the appeal will not be dismissed on that ground.

Department 2. Appeal from superior court, city and county of San Francisco.

Action by the Bay City Building & Loan Association against Charles E. Broad and others. Motion to dismiss defendants' appeal for failure to file a proper undertaking. Denied.

Sullivan & Sullivan, for appellants. Jas. A. Devoto and Devoto, Richardson & Long, for respondent.

MCFARLAND, J. This case is before us on a motion to dismiss the appeal on the ground that "appellant has failed to file herein the undertaking on appeal according An instruto law." The facts are these: ment in writing, the body of which is in the proper form of an undertaking on appeal in the case, was filed in due time. Upon this instrument there is a written statement and affidavit signed by Hu Jones and Louisa F. Hession, in which it is stated, among other things, that they are "the persons named in and who subscribed the foregoing undertaking as the sureties thereto"; but at the end of the main body of the intended undertaking, at the place where the signatures to such an instrument usually are, there is the signature of Hu Jones alone, Hession not having signed it at that place. On January 30, 1900, before the hearing or the motion to dismiss, appellant filed with the clerk of this court a new undertaking on appeal in due form, and properly signed by said Jones and Hession as sureties, and approved by the chief justice, and asked that it be accepted, under the provisions of section 954 of the Code of Civil Procedure. It is not necessary to inquire whether Hession would have been liable on the first undertaking, although her name was not signed at the usual place. "Insufficiency," within the meaning of section 954, is the most that can be said against it, and under that section the new undertaking should be received. There was evidently an honest attempt to file a good undertaking, and the neglect of Hession to sign it at the customary place was clearly a mere oversight. Section 954 necessarily implies that there may be an undertaking which is insufficient, and that this insufficiency may be remedied by a new undertaking; for, when the original undertaking is itself sufficient, there is no room for the application of the section. In the cases cited by respondent there had been an attempt to give one undertaking on several appeals from several different judgments and orders; and it was held that, as to a judgment or order not referred to in the undertaking, and as to appeals for each of

61 P.-24

Cal. Rep. 60-62 P.-21

TERIAL MEN COMPLAINT - DEMAND - NOTICE-NECESSITY.

1. Under Code Civ. Proc. § 1203, providing that a contractor's bond shall inure to the benefit of persons performing labor or furnishing materials, etc., a demand or notice is not a prerequisite to a suit on the bond by a person furnishing material to the contractor.

# * *

2. Code Civ. Proc. § 1203, requiring a contractor's bond to be filed with every contract which the mechanic's lien law requires to be filed, and forming a part thereof, entitled "An act to add a new section to the Code of Civil Procedure, to be numbered section 1203, relating to liens of mechanics and others,' does not contravene Const. art. 4, § 24, requiring every act to embrace but one subject, which shall be plainly referred to in its title. 3. Sureties on a contractor's bond were not entitled to object, in an action by a material man thereon, that they had not justified by affidavit, as required by Code Civ. Proc. § 1057, since such requirement was solely for the protection of the obligees.

4. A complaint on a contractor's bond, required by Code Civ. Proc. § 1057, alleging that defendant had furnished materials, under a contract with the contractor, that were used in the building, was sufficient, as against a general demurrer, though it did not set out in detail the contract between the builder and the contractor, since it will be presumed that the materials were furnished and used under such contract.

5. Code Civ. Proc. § 1203, declares that one furnishing materials to a contractor shall have an action for the value thereof on the contractor's bond. Held, that where the contract price of the materials was alleged and found, and there was no demurrer for uncertainty in the complaint as to value, a finding in favor of the material man would not be reversed for failure to allege the value of the materials.

6. Code Civ. Proc. § 1203, requiring a contractor's bond with every contract which the mechanic's lien law requires to be filed, which bond shall be made to inure to the benefit of any and all persons who perform labor for or furnish materials to the contractor, is not unconstitutional, as class legislation.

Commissioners' decision, Department 1. Appeal from superior court, Los Angles county.

Action by A. L. Carpenter and others against W. C. Furrey and others on a contractor's bond. From a judgment in favor of plaintitis, defendants appeal. Affirmed.

A. W. Hutton and Jas. G. Scarborough, for appellants. Borden & Carhart, for respondents.

GRAY, C. Appeal from judgment on judgment roll without a bill of exceptions. The plaintiffs furnished material in the construction of a building, and, $350.15 of the contract price thereof remaining unpaid, they brought this action on the contractor's bond given in pursuance of section 1203, Code Civ. Proc., and obtained judgment for that sum. Appellants are the sureties on said bond.

1. The obligation sued on was not a mere offer of guaranty depending for its binding force upon a notice of acceptance, but it was a contractor's bond conforming in all essential respects to the provisions of said section 1203. It is immaterial whether the liability of appellants was that of sureties or guarantors, suit could be maintained against them immediately on default of the principal and without demand or notice. Said section provides: "Said bond shall by its terms be made to inure to the benefit of any and all persons who perform labor for or furnish materials to the contractor, or any person acting for him or by his authority; and any such person shall have an action to recover on said bond against the principal or sureties, or either of them, for the value of such labor or materials or both." No notice is required by this statute. Nor, in the absence of a contract to that effect, is a notice ever required to fix the liability of either a surety or guarantor. Treweek v. Howard, 105 Cal. 441 39 Pac. 20; Coburn v. Brooks, 78 Cal. 443, 21 Pac. 2; Civ. Code, § 2807.

2. Said section 1203 is not unconstitutional. It does not contravene the provisions of section 24, art. 4, of the constitution, requiring that every act shall embrace but one subject, which subject shall be expressed in its title. The title to the section is "An act to add a new section to the Code of Civil Procedure of the State of California, to be numbered section one thousand two hundred and three, relating to liens of mechanics and others." Laws 1893, p. 202. The new section is the last of a chapter in the Code relating to mechanics' liens, and in terms it refers to mechanics' liens, and provides a security for claims in addition to such liens. Under the liberal construction of the said provision of the constitution heretofore adopted, the title of the act in question must be held to be sufficient. Ex parte Liddell, 93 Cal. 638, 29 Pac. 251; Peo- |

ple v. Superior Court of City and County of San Francisco, 100 Cal. 120. 34 Pac. 492; Hellman v. Shoulters, 114 Cal. 150, 44 Pac. 915; San Francisco & N. P. R. Co. v. State Board of Equalization, 60 Cal. 30. Neither is said section 1203, Code Civ. Proc., in conflict with any of those provisions of the constitution directed against class legislation and special laws. This section, which was added to the Code in 1893, and the previous section of said Code bearing the same number and similar in its provisions, which was enacted in 1885 and repealed in 1887, have been under consideration by this court several times, and their constitutionality has not been questioned until now, so far as we are advised. Mangrum v. Truesdale (Cal.) 60 Pac. 775; Kiessig v. Allspaugh, 91 Cal. 236, 27 Pac. 602, 13 L. R. A. 418; Id., 99 Cal. 453, 34 Pac. 106. No case is cited in which this section or any similar provision has been held unconstitutional. And we think its validity may be upheld on the same reasoning that upholds other sections of the mechanic's lien law. A similar statute has been held constitutional and free from the objection that it was class legislation by the supreme court of Tennessee. Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045.

3. The requirement of section 1057, Code Civ. Proc., that the sureties shall justify by affidavit accompanying the bond, is intended solely for the protection of obligees, and it does not lie in the mouth of the sureties to object to the sufficiency of the bond because of their failure to comply with this provision of the law. People v. Shirley, 18 Cal. 121; Moffatt v. Greenwalt, 90 Cal. 368, 27 Pac. 296.

4. The amended complaint is sufficient as against the demurrer interposed to it. It was not necessary to set out in detail the contract between the owner and the contractor. It was sufficient in that connection to set out facts showing, as the amended complaint does, that plaintiff had, pursuant to his contract, furnished materials that were used in the building in pursuance of the contract with the owner. From the fact that the materials were furnished to be used and were used by the contractor in the construction of the house, it will be presumed that they were so furnished and used in pursuance of the contract with the owner. Against a general demurrer the allegations of the complaint on this point are certainly sufficient, and there is no special demurrer for uncertainty in this respect.

5. Section 1203, Code Civ. Proc., provides that any one furnishing material may have an action for the value thereof, and the point is made that the value is not alleged in the complaint nor found by the court. The contract price of the materials is alleged and found, and there is no demurrer for uncertainty in the complaint as to value. The complaint and findings must therefore be held sufficient in this respect also. Bringham v. Knox (Cal.)

HOHENSHELL v. SOUTH RIVERSIDE LAND & WATER CO. (L. A. 586.)1 (Supreme Court of California. May 23, 1900.)

EVIDENCE-PRESUMPTIONS-CONTINUANCE OF FACT ONCE SHOWN TO EXIST-TRIAL-FINDINGS-CONSTRUCTION DEEDS - RESERVATION-EASEMENTS.

1. Under Code Civ. Proc. § 1963, subd. 32, providing that a thing once proven to exist will be presumed to continue to exist as long as usual with things of that nature, the title to land, having once been shown to have been vested in a grantor at a certain time prior to the execution of a deed by him, will be presumed to have continued to remain in him until the time of the execution of such deed, in the absence of any proof to the contrary.

2. In an action to abate a dam in the outlet of a lake which overflowed plaintiff's land, and which in part constituted a tract known as the "L. Ranch," the court found that plaintiff's predecessor in interest was on a certain date, and at the time of the excavation of the ditch which drained the lake and reclaimed the lands, the owner of the L. ranch, except a certain number of acres lying in one body in a certain part of the ranch. Plaintiff claimed the right to maintain his action on the ground that his predecessor in interest, being then the owner of so much of the ranch as included and surrounded the lake, had reclaimed the land covered by said lake. The trial court further found that plaintiff was entitled to the benefit of the reclamation effected by the ditch, and to have the same continued. Held, that it will be presumed that the tract excepted in the finding did not include any part of the land adjoining and including the lake, since the right to reclamation would only follow ownership.

3. The owners of a tract of land, which they had platted, and on which a lake is situate, conveyed a part thereof, with a reservation of the right to reclaim by drainage all or any portion of the land conveyed, or any other lands liable to overflow from the lake, and for that purpose to enter on the land conveyed, and construct a dam or ditch, and do anything necessary to reclaim any or all of such lands from overflow; the reclamation to inure to the benefit of the grantee. Held to reserve to the grantor and his grantees of adjoining tracts an easement over the land of the grantees for the purpose of constructing a ditch or other means of reclaiming the land, as well as the right to draw water from the grantee's land by a ditch constructed on their land, and to the grantee an easement on the lands of the grantor and his grantees for the continuance and maintenance of a drainage ditch existing at the time of the grant.

4. That a judgment is based on findings at variance with the theory of the complaint is not ground for a reversal, where the findings made are based on the allegations of the complaint, since the theory of a pleading is immaterial, providing the facts which entitle the party to relief are alleged.

Commissioners' decision. Department 1. Appeal from superior court, Riverside county. Action by George W. Hohenshell against the South Riverside Land & Water Company Rehearing denied June 18, 1900.

to abate the maintenance of a dam which overflowed plaintiff's lands. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. W. Freeman, for appellant. Collier & Evans, for respondent.

SMITH, C.

Judgment was rendered in the lower court against the defendant, requiring it to abate, to a depth of 2.7 feet from the top, a dam placed by it in the outlet of Elsinore Lake, in Riverside county, whereby plaintiff's land was overflowed, and enjoining it from maintaining in said outlet that or any other obstruction. The appeal is on the judgment roll, and the points of error assigned are (1) that the theory of the complaint is at variance with the case as made by the findings; (2) that the findings are defective, in failing to show the extent of the plaintiff's right; and (3) in effect, that the findings negative the alleged right of the plaintiff.

It

The facts of the controversy, as they appear from the findings, are as follows: The lake referred to in the judgment is situated in a larger tract, known as the "Laguna Ranch," and varies in extent in different years, and at various seasons, according to the rainfall. is drained to a certain level by a natural outlet, which in the year 1884, by means of a ditch constructed by the then owners of the lands adjoining and including the lake, was lowered or deepened to a plane 2.5 feet below the natural level, and again, in 1890, deepened and extended through the valley by owners of said lands. And again, in the year 1894,

it was deepened by the defendant for the purpose of conveying water from the lake to South Riverside. Finally, just before the beginning of the suit, the defendant constructed in the outlet of the lake the bulkhead and dam complained of, by which the flow of water from the lake was obstructed, and the level of the lake raised "two and seven-tenths feet above the bottom and flow of the ditch as constructed and in use prior to the purchase" of lands in the lake tract by the defendant, which was in July, 1893. During all this period-that is to say, from the original construction of the ditch to the construction of the dam by the defendant-the ditch was in use, and water continued to flow through it and to relieve the lake. The ditch thus "operated to reclaim in part the lands of plaintiff from overflow by said the plaintiff was enti tled to the benefit of such reclamation, and entitled to have the same continue." In the year 1883 the lands adjoining and including the lake, which constituted a distinct subdivision of the Laguna ranch, designated on the map of the rancho and known as "Elsinore," were owned by Graham, Collier, and Heald, and were subdivided by them into blocks and lots; and maps of the same were filed in the office of the recorder of San Diego county, in which the land was then situated.

lake, and

The plaintiff deraigns title from these owners under a deed executed by them to one Nicol February 11, 1884, in which there occurs, following the granting clause, a reservation or provision in the words and figures following: "Expressly reserving to the grantors herein, their heirs and assigns, the right to reclaim all or any portion of the land above described, or any or all other lands liable to overflow from the lake at Elsinore, and the right to enter upon the land above described and construct any dike, dam, ditch, or canal that may be necessary, and to do anything there or elsewhere necessary to reclaim any or all such lands from such overflow. The reclamation of the above-described land is to inure to the benefit of the grantee herein, his heirs and assigns." The defendant deraigns title from Heald, who was one of the owners of the ranch above mentioned, by whom the ranch was subdivided, and who was also at the time the ditch was deepened, in 1890, owner of the land afterwards acquired by the defendant, and as such participated in the making of the ditch. The facts above stated are, however, disputed by the defendant in two particulars: First, it is claimed that it is not found that the title of the Elsinore tract was vested in Graham, Collier, and Heald, September 24, 1883; and, secondly, that, if so, it is not found that it continued thus vested to the date of the deed to Nicol, February 11, 1884. The last objection is, however, obviously untenable. If the plaintiff's grantors were owners of the land in September, 1883, it is to be presumed, in the absence of anything appearing to the contrary, that they continued to be such to the date of the deed, February 11, 1884; and also to the time the ditch was constructed in the same year. Code Civ. Proc. § 1963, subd. 32; Kidder v. Stevens, 60 Cal. 419. We may confine our attention, therefore, to the first objection, the point of which is in the finding that the title of the Laguna rancho "was on the 24th day of September, 1883, vested in [said owner] except about five hundred acres of said tract, lying in one body, in the westerly corner of said Laguna rancho," from which it is claimed that it does not appear from the findings that the excepted tract did not include part of the lands adjoining and including the lake. But, were there no other finding on the point, the presumption would be otherwise; for there is a general finding that the plaintiff was entitled to the benefit of the reclamation effected by the ditch, and to have the same continued, and, in view of this finding, the ownership of the lands at the time of the reclamation must be presumed. And this presumption is confirmed, and in fact established, by other findings of the court, for it is found that in the years 1883 to 1885 the Laguna ranch was subdivided by its owners, and it appears that one of the subdivisions of the ranch was Elsinore, or the Elsinore tract, consisting of the lands adjoining and including the lake, and that this tract ("being part of the grant of land

known as the 'Laguna Rancho'") was subdivided by Graham, Collier, and Heald, from which it is to be inferred that the Elsinore tract included no part of the 500 acres that did not belong to them. The points of error assigned will be considered inversely to the order in which they have been stated.

1. From what has been said, it must be assumed that the grantors in the deed to Nicol were at the date of the deed owners of the Elsinore tract, and that both parties deraign title from them. This being the case, the reservation clause in the deed must be construed as reserving and granting reciprocal easements, namely, to the plaintiff an easement over the land of the grantee, which would include, not only the right to construct a ditch or other means of reclamation on his land, but also the right to draw the water from his land by a ditch constructed on other lands, and to the grantee, his heirs and assigns, an easement on the lands of the grantors for the continuance and maintenance of the ditch; and of this grant the defendant, who deraigns title from one of the grantors, was by the record affected with notice. Civ. Code, § 1213.

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2. The objection that "the findings fail to show the extent of the alleged superior right asserted by plaintiff" is unfounded. The nature of the right is specifically determined by the facts above stated; and its precise extent, by the relief granted. It is simply to have the ditch restored to and maintained at its former level.

3. The supposed variance between the complaint and the findings with reference to the construction of the reservation clause in the deed is immaterial. The complaint alleges, in effect, "that, by the terms of the various deeds and agreements by and under which this plaintiff holds his title, it was agreed by and between this plaintiff and the owners of the said Laguna ranch, as owned and held in 1883," that by ditches, etc., "on plaintiff's land or elsewhere," said owners might reclaim the land, and that the reclamation should inure to the benefit of the plaintiff, his heirs and assigns, etc. The first part of these allegations necessarily includes, as one of the "various deeds and agreements," the deed from the owners to the first of plaintiff's predecessors, Nicol, and the effect of the reservation clause is otherwise correctly stated. The point of the objection is that the theory of the complaint is that this clause is a covenant or executory contract. But the allegation of the complaint is that "it was agreed" that the grantors should have the right to reclaim, and that the reclamation should inure to the benefit of the plaintiff, etc., and such an agreement constitutes a grant; for a grant is but "a transfer in writing" (Civ. Code, § 1052), or, more specifically, an agreement for the present transfer of a right; and such an agreement may be evidenced by any language showing this intent. It is, indeed, possible, as claimed by defendant, that the pleader re