357; reaffirmed 148 Cal. 126, p. 128.) The court did not err in giving the instruction complained of.

[3] The failure of the court to admonish the jury under section 1122 of the Penal Code is not necessarily reversible error. While the section should have been and always ought to be strictly complied with, yet if no injury appears to have resulted from an omission to do so, prejudice will not be presumed. (People v. Thompson, 84 Cal. 606; People v. Coyne, 116 Cal. 295.) In the case at bar the error complained of was the failure to give the language of the section in full at two adjournments. It does not appear. that it was not given at other adjournments, or that there were no other adjournments at which it may be presumed it was given. The language of the district attorney the use of which is assigned as error is not beyond that which is permissible as a matter of argument. The comment as to the testimony of a witness for the defendant, that the witness is "making a plausible story", is improper while the witness is testifying, but is not, or at least was not, under the circumstances here, sufficient to justify the setting aside of a verdict or a reversal of the judgment.

Some of the alleged errors assigned in connection with the admission of evidence as to the raid made by Martin two weeks prior to the date of the trouble cannot be considered, as no exceptions were preserved to the rulings of the court in relation thereto. [4] Prior to the amendment of section 1259 of the Penal Code in 1909 this was necessary. (People v. Miller, 122 Cal. 93.) There are others, however, as to which exceptions were properly preserved. Defendant's brother, the proprietor of the billiard hall, was called as a witness for defendant and on his direct examination gave his version of a raid or search for liquors made by Martin two weeks before, to the effect that Martin had forcibly entered some rear rooms on the witness's premises and destroyed some bottles of cherry cider or grape juice, but that he found no "booze". On cross-examination the witness was asked by the district attorney: "Q. On this raid that you speak of, or this search, did he search any other premises?" This question was objected to generally and on the ground that it was not proper cross-examination, and the court overruled the objection and an exception was noted. The answer was, "He did". He was then asked: "Did he find any booze?" to which question a general objection was interposed and the witness answered, "He did", before the court ruled. Defendant moved the answer be stricken out, without assigning grounds of motion, and the court denied it, an exception being preserved. The witness testified that Martin broke up and destroyed the booze and was then asked the question: "I will ask if you had any notice served on you by the Constable, Martin, five days or any other number of days prior, relative to this booze question?" An objection to this was overruled and an exception taken and the witness answered: "I can't say that it had; I received a paper, but I don't know whether it would be considered a notice served." This same matter had been gone into by the defendant on his cross-examination of Martin earlier in the trial and the statement made by defendant's counsel in one of his questions to Martin: "You are talking about some other place. You are willing to break

into other people's places aren't you?" Upon redirect examination of this witness, over the objection of defendant, the district attorney was permitted to show that Martin "had served notice on this defendant, proprietor of this pool hall, relative to abating the nuisance carried on there." All of these exceptions are presented as

error.

The evidence relating to the prior occurrence seems to have been introduced by the people for the purpose of showing that there was a motive for defendant's attack upon Martin. A proper question was propounded by the district attorney to which an objection was made by the defendant and the answer given was, that the witness "went in to search the place and poured out some booze and whiskey". No motion was made to strike this answer out, and on cross-examination defendant elicited Martin's story of the raid in detail, and finally made the declaration as to Martin's "breaking into other places" above mentioned. Under the circumstances of this case we are unable to say that the defendant was prejudiced by any act of the district attorney or the court in its rulings in relation to this evidence. [5] Courts of appeal sit to review such errors of the trial court and misconduct of the prevailing party as prejudice the rights of the party claiming to be aggrieved, and not to set aside verdicts or reverse judgments merely because some error has been committed upon the trial.

[6] Conceding that the introduction of improper matter into a case by the defendant does not justify the court in permitting a district attorney to pursue this same line of examination on cross or redirect examination, or estop the defendant from objecting to such cross or redirect examination, as the case may be, nevertheless, the fact that the defendant has already called the same matter to the attention of the jury will be considered in determining whether or not the error committed at the request of the district attorney is, or is not, prejudicial to the defendant. [7] So considering the rul ings excepted to, we are unable to see how the defendant was prejudiced by the showing that Martin had found "booze" on other premises and destroyed it, while the fact that he had served a notice on defendant relative to abating a nuisance carried on at the pool hall can hardly be deemed to have been prejudicial. The latter tended in some degree to show that Martin's presence in the pool hall was in pursuance of his official duties, and to negative the theory of defendant that he was a trespasser.

No prejudicial error appearing in the record, we have not considered the objection of the attorney-general that the appeal from the order denying the motion is not before us, but from an examination and consideration of the entire record, the judgment and order are both affirmed.

We concur:

ALLEN, P. J.
SHAW, J.

TAGGART, J.

Civil No. 576. Third Appellate District. October 6, 1909. CITY OF MADERA, Plaintiff and Appellant, v. MADERA CANAL AND IRRIGATION COMPANY, Defendant and Respondent.

[1] CORPORATION LAW-CANAL CORPORATIONS-CONSTRUCTION AND MAINTENANCE OF BRIDGES ACROSS PUBLIC HIGHWAYS-GENERAL CHARACTER OF CODE PROVISION-LAW OF INCORPORATION IMMATERIAL.-It is the duty of a canal corporation under section 551 of the Civil Code to construct, maintain and keep in repair bridges across public highways, where its canal crosses the same, independent of the law under which such corporation is organized

[2] ID.-ID.-ID.-ID.-DUTY IMPOSED AS TO FUTURE HIGHWAYSCONSTRUCTION OF CODE AMENDMENT.-It is the duty of canal corporations under section 551 of the Civil Code, as it now reads, to build and maintain bridges across highways, laid out subsequently to 1905, over ditches and canals previously constructed.

[3] ID.-ID.-ID.-CONSTITUTIONAL LAW-CROSSINGS OVER CANALSPOWER OF LEGISLATURE-PROPER EXERCISE OF POLICE POWER.-The legislature in the exercise of the police power of the state, has power to impose a duty upon canal corporations to make suitable crossings over their canals for existing and future highways.

[4] REGULATION.-Such requirement without any provision for compensation to the corporation therefor, is a reasonable regulation.

ID.-ID.—ID.-ID.-ID.-ID.-ID.-REASONABLE

[5] ID.-ID.-ID. PERFORMANCE OF DUTIES IMPOSED BY CODE SECTION NOTICE-DUTY INDEPENDENT OF.-It is the duty of canal corporations under section 551 of the Civil Code, to construct and maintain bridges across public highways, regardless of any notice to per- . form the same.

[6] ID. MUNICIPAL CORPORATIONS-STREETS OF CITY OF MADERACONTROL VESTED IN MUNICIPALITY.-The right of control of streets in the city of Madera is vested in such city under the municipal incorporation act of 1883.

[7] ID.-ID.-CONSTRUCTION AND MAINTENANCE OF BRIDGES BY CANAL CORPORATIONS-CODE PROVISION APPLICABLE TO STREETS OF MUNICIPALITIES.-The duty laid upon canal corporations by section 551 of the Civil Code, applies to streets of towns and cities crossed by canals or ditches.

[8] ID.-ID.-INCORPORATION OF MUNICIPALITY-STREETS WITHIN CORPORATE LIMITS-CORPORATE CONTROL.-Where a city by its charter succeeds to all the rights and duties of the board of supervisors in respect of the control of the streets within its boundaries, the same becomes the subject of municipal control.

[9] ID.-ID.-CONSTRUCTION OF BRIDGE BY MUNICIPALITY-ACTION AGAINST CANAL CORPORATION FOR REIMBURSEMENT-PLEADING-PARTIES-PROPER MAINTENANCE OF ACTION BY MUNICIPALITY.-A municipality, whose charter invests it with full control of its streets, may maintain an action against a canal corporation for the cost of construction of a bridge across the canal of the latter within the limits of such municipality, after refusal of the latter to construct the same, independent of section 551 of the Civil Code, which gives such power to the board of supervisors.

Appeal from the Superior Court of Madera County-W. M. Conley, Judge.

For Appellant-R. E. Rhodes and F. A. Fee.

For Respondent-R. L. Hargrove and G. W. Mordica Jr.

This action was commenced by plaintiff to recover from defendant the sum of $500.00, the alleged cost of a certain bridge erected by plaintiff across the canal of defendant at its intersection with Yosemite avenue, within the city limits of plaintiff corporation. A de

murrer to the complaint was sustained and judgment passed for defendant, from which plaintiff appeals.

It appears from the complaint: That since March 27, 1907, plaintiff has been a municipal corporation of the sixth class; that defendant is now and ever since December, 1888, has been a corporation, duly organized under the laws of this state and has been and is now "the owner and in possession and use of certain canals and ditches and other appliances for conducting water, and engaged in the business of furnishing and supplying for a profit, through its said canals and ditches, the appropriated waters of this state, for irrigation, domestic and other useful purposes; that Yosemite Avenue in said City of Madera is now, and at all the times herein mentioned it has been a public street, road and highway dedicated, laid out and opened and used as such, and the same is and at all times has been necessary for such use"; that one of the main canals and ditches of defendant corporation crosses said Yosemite avenue at a point within the city of Madera; that said Yosemite avenue aforesaid was dedicated, opened and laid out over and across said canal or ditch of defendant corporation subsequent to the construction of said canal or ditch, but at what date does not appear. Averments follow to the effect that plaintiff, in September, 1907, duly made and entered an order that a bridge be constructed across said canal on said avenue at the point where said canal crosses said avenue and that plaintiff thereupon demanded of defendant in writing that it construct a suitable bridge at said point which defendant failed and refused to do "for more than seven days after the making of said demand" and still refuses so to do, "upon and for the reason by it given and assigned, that it is the duty of plaintiff city to construct said bridge and not the duty of said defendant." It is then averred that after more than seven days had elapsed since said refusal of defendant the plaintiff caused a suitable bridge to be constructed at said crossing and paid out therefor the sum of $500.00, "which sum and the whole thereof was necessarily expended in the construction of said bridge"; that thereafter plaintiff duly made demand upon defendant to pay to plaintiff said sum but defendant refused to pay the same and still so refuses. Wherefore, plaintiff prays judgment, etc.

1. The principal point to be determined is whether section 551, Civil Code, relied upon by plaintiff, must receive such construction as would relieve the canal company from the duty of erecting and maintaining the bridge over its canal at the point where it crosses the highway or street of plaintiff city. The section of the code is as follows:

"No canal, flume or other appliance for the conducting of water must be so laid, constructed or maintained as to obstruct any public highway; and every person or corporation owning, maintaining, operating or using any such canal, flume or appliance, crossing or running along any public highway, must construct, maintain, and keep in repair such bridges across the same as may be necessary to the safe and convenient use of such highway by the public. And on the failure so to do, the board of supervisors of the county, after seven days' notice in writing to said person or corporation, may construct or

repair such bridge or bridges, and recover of such person or corporation the amount of the expenditure made in so doing." (Stats. 1905, p. 580.)

Appellant contends that the statute makes it the duty of defendant to construct the bridge, although the street was not laid out or the bridge required until after the completion of the canal. The legislative history on the subject lends much force to this contention and dates back to the statute enacted in 1862. (Stats. 1862, p. 541.) Section 4 of this statute required canal corporations "to construct and keep in good repair at all times for public use across their canal all the bridges that the board of supervisors of the county in which such canal is situated may require, the bridges being on the line of public highways and necessary for public uses in connection with such highways." The act of 1870 (Stats. 1870, p. 660), section 12, reenacted the provisions of section 4 of the original act. In 1872 (Stats. 1871-2, pp. 732-3) this same provision was enacted as section 4 but the act applied only to Tehama county, but it continued in force the provisions of the act of 1862. In the codification of the laws the provisions of the earlier statutes were carried into the Civil Code as title 8, part 1, division first, and section 4 of the act of 1862 and section 12 of the act of 1870 became section 551 of the Civil Code.

It does not appear under what law defendant was incorporated but in its brief it claims that it "was incorporated under section 288 of the Civil Code, and is entitled to all the privileges of other corporations and individuals; and is not burdened with any special charter provisions." We do not understand defendant's reference to section 288, for that section does not authorize the formation of corporations. If defendant existed as a corporation prior to the adoption of the code it is governed by the then existing laws unless it elected to continue its existence under the code provisions as provided in section 287, and of this latter fact we have no knowledge. (Murphy v. Pacific Bank, 119 Cal. 334.) [1] Section 551, however, is a general provision applying to any "canal, flume, or other appliance for the conducting of water" which shall not "be so laid, constructed, or maintained as to obstruct any public highway." This section imposes the duty under whatever law defendant was organized.

The statute of 1862, and its amendments prior to 1905, expressly provided that all canal companies should build and maintain "all the bridges that the board of supervisors . . . may require" and contemplated future as well as then existing highways and bridges. We are, therefore, to determine whether the legislature intended by section 551 of the Civil Code, as it now reads, to so change the law as to relieve canal companies from building and maintaining crossings of highways, laid out subsequently to 1905, over ditches or canals previously constructed. The code commissioners say, in their note to the amended section: "The design of the amendment is to better express the purpose of the section and to remove the objection that it may be unconstitutional in vesting the supervisors with an arbitrary power to require or not to require bridges, and to supply the present defect in not providing any means of coercing the performance of