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had the appearance of having been "sawed as to facilitate the proper and efficient peroff." This same witness further testified that:

* *

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"The size of the big limbs sawed off were from as big as my thumb up to three inches. There was a place cut out through the trees that looked four or five feet wide. That left the big limbs coming up on either side."

The witness Keehn stated:

That he was "called in by Mr. Altpeter after the cutting of these trees. I measured up the size of the limbs that were cut. They averaged all the way from 1 to 11⁄2 inches. The stubs are still on the trees and can be measured up if desired. I couldn't tell exactly how many limbs were cut. I should judge all the way from five to six branches on each tree, mostly out of the center of the tree. The brush on the ground after it was cut would make a good sized wagonload, I should judge. The trees were black walnut, about 18 or 20 years old. Some of these cuttings were on an average of about 10 or 12 feet below the cross-arm.'

The witness Murray, for the plaintiffs, tes

tified that:

"The tops were cut out of the trees, leaving the wires six or eight feet from the points where the limbs were taken from the trees."

Mrs. Altpeter, one of the plaintiffs, testified:

That the trees were in the month of August, 1911, "terribly disfigured by cutting them off right straight at the top. They have no shade at * 2 We had no trees trimmed at

the top.

that time and gave no permission to any one to trim them. * * ** I did not see any of the branches that were cut off. The main limbs of the trees were cut. I don't know how big the limbs were that were cut off, but they were the main limbs, the center limbs, I would call it." [6] The foregoing comprehends substan

tially & statement of all the testimony presented by the plaintiffs upon the question as to the cutting or trimming of the trees. The burden was upon the plaintiffs to show that either it was entirely unnecessary to remove any branches or limbs from the trees for the purpose claimed by the defendant or that the latter removed more limbs and branches than the situation with respect to

its wires called for.

[7] This burden they wholly failed to sustain. Heller was the only witness who gave any testimony upon this question, and he declared, as will be observed, that only so much and such parts of the trees were trimmed and cut as were necessary to prevent collision between the wires and the branches

formance of its obligations to the public, it is necessarily its duty to remove from any point along the route over which it has been granted the right, either by the public authorities or by judgments in condemnation or by agreements with private individuals, to run and maintain its lines, any obstruction interfering with the safe and proper transmission of messages. As has been shown, it had the lawful authority (Code Civ. Proc. § 733) to cut or trim limbs and branches from the trees in question, if necessary for a safe and proper transmission of messages over its wires passing through and in said trees. Therefore the number of the branches or limbs removed, whether large or small, or the size of the limbs or branches so removed, whether large or small, or what influence and to what extent, if any, the severance of the limbs and branches from the trees exerted in depreciating the value of the property in front of which the trees stand and grow, constitute facts which become wholly immaterial and unimportant unless it be shown that the defendant unnecessarily stripped the trees of certain of their branches and limbs or destroyed more branches and limbs than the necessities of the situation actually required. In this case, whatever may be the extent and effect of the damage the cutting and trimming of the limbs and branches of the trees might have had on the property of the plaintiffs, it having been shown by the evidence without conflict that such cutting

and trimming were necessary to the safe and proper operation of the defendant's wires as transmitters of messages, the damage so infore can form no basis for a recovery by the flicted is damnum absque injuria, and there

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TURTON et al. v. SHINN et al. (Civ. 1605.) (District Court of Appeal, Third District, California. Feb. 8, 1917.)

1. GUARANTY 25(3)—ACCEPTANCE of GuarANTOR-EVIDENCE.

In an action on a guaranty signed by three guarantors, evidence held insufficient to show that the creditor refused to accept the first signer alone so as to release him.

-a collision or contact which would have caused such interference with the transmission of messages over the wires as would necessarily have destroyed that efficient service which the defendant, as a telegraph corporation, owes to the public, and the failure to furnish which may subject it to the severest penalties in one form or another. This was one of the vital questions of fact in the case. Indeed, it constituted the very foundation of plaintiffs' right to a recovery; for ob- 2. GUARANTY 85(2)-LIABILITY OF GUARviously, since the defendant, as a public serv- ANTOR-DEMAND AND NOTICE. ice corporation, is, as above explained, charg-gation depend on notice or demand, the law, in Though the guarantor may make his oblied with the duty of so maintaining its wires view of Civ. Code § 3532, requires no idle act,

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 104.]

and as a failure to observe a precedent condition is not always fatal to recovery, where defendant guarantor denied that he had been accepted as a guarantor, it was not necessary for the guarantees to allege demand.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 99.]

from defendant the payment thereof. The cause was tried by the court without a jury, and plaintiffs had judgment for $1,500 and costs of suit, taxes at $20. Defendant Shinu appeals.

It is not necessary to state the terms of

Appeal from Superior Court, Sacramento the lease, as no question arises concerning County; Peter J. Shields; Judge.

Action by Nellie Turton and another against C. G. Shinn and others. Judgment for plaintiffs, and defendant Shinn appeals.

Affirmed.

Shinn & Shinn, of Sacramento, for appellant. White, Miller, Needham & Harber, of Sacramento, for respondents.

CHIPMAN, P. J. The action is against defendants as guarantors of a certain lease executed by plaintiffs as lessors and the Morgan Shoe Company, a corporation, as lessees, the premises being situated at No. 801 K street, in the city of Sacramento. The guaranty reads as follows:

"In consideration of the foregoing lease or agreement, and one dollar to me paid, the receipt whereof is hereby acknowledged, we do hereby covenant, promise and agree, to and with the said Nellie Turton and Kate Turton that the said Morgan Shoe Company, a corporation, shall well and truly pay all rents and perform and execute all the covenants therein contained on its part, and that on its failure to do so in any particular will on demand pay unto said Nellie Turton and Kate Turton all rents or damages that may happen or occur by reason of such failure, not exceeding the sum of fifteen hundred dollars, and immediate notice of default is hereby expressly waived.

C. G. Shinn.

its purport. The lessee, Morgan Shoe Company, became insolvent and defaulted in payment of rentals in an amount in excess of

$1,500. Hence the action against the guaran

tors.

Appellant specifies the following particulars wherein he claims the evidence to be insufficient to justify the decision of the

court:

"(1) The evidence is insufficient to justify the portion of finding No. V, viz.: "That proof of such demand upon defendant, C. G. Shinn, was The contract neither required nor necessary." of guaranty expressly provides that demand must be made. (2) There is no evidence to justify that portion of finding VII, viz.: "That the averments in the answer of defendant C. G. Shinn, and each of them, is not true.' He avers that his offer to guarantee was not accepted by plaintiffs. The evidence of plaintiffs' agent, Frank Hickman, shows that the offer was conditionally accepted, and that defendant never assented to the condition thus imposed."

The lease was prepared by Frank Hickman, a real estate and insurance agent, acting in the matter as plaintiffs' agent. Не testified:

That he secured the Morgan Shoe Company as tenant of the premises; that the Morgan Shoe Company obtained the signatures of the guarantors and as executed by that company with the guaranty signed by the three parties the "Dated and signed on this 29th day of Sep-lease was presented to him and signed by plaintiffs. tember, 1913. "Q. State the circumstances concerning the signatures of the guarantors. A. The best of my recollection, they brought the lease in with the name of Shinn. I told them that was not sufficient; then followed with Mr. HooperI did not know Hooper-and made the same objections. They finally brought in Mr. Ahern's name, then I told him I thought the three of them would be satisfactory. We accepted the lease."

"H. S. Baxter-Hooper.
"Dave Ahern.

"Signed, sealed and delivered in the presence of A. L. Shinn, A. B. Erway, H. F. De Back."

The complaint is verified.

He testified to the occupancy by the Morgan Shoe Company; its bankruptcy later; the amount of rentals paid and still unpaid, etc., as to which no question arises. cross-examination he testified:

On

Answering the complaint, defendant Shinn denied that he, together with the other alleged guarantors, "subscribed or delivered to the plaintiffs an agreement guaranteeing the payment of all or any rents or damages that might happen or occur by reason of the failure of the Morgan Shoe Company to pay the said rent," etc.; averred that defendant affixed his signature to said instrument, and it "was thereupon presented by the Morgan Shoe Company to plaintiff for acceptance"; that plaintiff refused to accept defendant as guarantor, and defendant was forthwith notified by said company of said refusal; that said company "thereafter obtained the signatures of said Hooper and Ahern to said instrument as the guarantors of the rents and damages as aforesaid; that plaintiffs accepted the said Hooper and Ahern as the only guarantors of said rents and damages, arrangement stated by you for other signatures? and plaintiffs ever since said acceptance have treated with the said Hooper and Ahern as the only guarantors of the said rents and damages"; denied that plaintiffs ever notified him of the company's default in the payment of said rents, or ever demanded

"By Mr. Carl Shinn: Q. Do you recall who presented the lease wth the signature of C. G. Shinn attached? A. One of the men of the Morgan Shoe Company. Q. That was Mr. Tom Finlayson, was it not? A. I think so. Q. What did you tell him? A. I told him that I did not know Shinn. I would like to have additional bondsmen-additional security on the Shinn in reference to obtaining other signalease. Q. Did you ever communicate with Mr. tures? A. No, sir. Q. You never communicated with him in any respects regarding the guaranty? A. No, sir. Q. All your dealings occurred with the Morgan Shoe Company? A. Yes, sir. Q. He never expressed his assent to that

A. I do not think I had any conversation with Mr. Shinn whatever. Q. All you know is you objected to his signature for the reason that it was not sufficient? A. I simply asked for additional security on the lease. I did not object to the signatures; no, sir. Q. You refused to accept that signature, however? A. No, sir; I did not refuse to accept any signature on the

lease-merely asked for additional security, in | swer, and hence the finding that its "aver addition to Mr. Shinn and Mr. Hooper. Qments are not true" was justified. You made a conditional acceptance at that time? A. Yes, sir. Q. Plaintiffs had nothing to do The court made the following findings: with the execution of the lease or the guarantors "That no proof of service of demands of said on it; you attended to all that entirely? A. rentals upon defendants C. G. Shinn and H. S. Yes, sir. Q. What did Mr. Finlayson say to Baxter-Hooper was offered; that it appears you when he returned with the lease signed by from the verified answers of said defendants last the three parties? A. I could not tell you. Q. named that such demand would have been idle, There has never been any understanding be-needless, and useless; that defendant C. G. tween you and Mr. C. G. Shinn in reference to Shinn in his answer denied the execution and that guaranty? A. No, sir. Q. Of any kind? delivery to plaintiffs of said hereinbefore menA. No, sir. Mr. Shinn: That is all." tioned agreement, and alleged that plaintiffs refused to accept him as guarantor of the rents or damages, and that plaintiffs accepted the said Hooper and Ahern as the only guarantors of said rents and damages; that said last-named defendants denied the relationship existing between them and plaintiffs by reason of the execution and delivery by them of said contract and the liabilities and consequences arising therefrom; that proof of such demand upon defendants Shinn and Hooper was neither required nor necessary."

Defendant Shinn testified as follows: "Q. State briefly what connection you had with the lease. A. I had acknowledged the signatures of the Morgan Shoe Company. Mr. Finlayson asked me if I would go on the bond. I told him yes, if it would help him; so he took it away.

"The Court: Was Mr. Finlayson one of the firm? A. One of the members of the Morgan Shoe Company.

"Mr. Carl Shinn: Q. You say Mr. Tom Finlayson was negotiating the lease and guaranty in behalf of the Morgan Shoe Company? A. Yes. Q. Is Mr. Tom Finlayson now living? A. No, sir; he died about three months ago.'

The remaining questions put to this witness called for conversations later between Finlayson and the witness and were objected to and not answered.

[2] It is contended that:

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"It is within the power of a guarantor to make his obligation dependent upon notice, demand, or any other condition he deems proper for his own protection and safety"; that his liability cannot be extended beyond the terms of his contract.

This view of the law may not be questioned. But "the law neither does nor requires The foregoing is substantially all of the idle acts" (section 3532, Civ. Code); and the evidence bearing upon the findings object-courts frequently resort to this maxim in dealing with the contractual relations of ed to. men. A failure to observe a precedent conci[1] Appellant's defense is that plaintiffs refused to accept him as a guarantor and ac- tion is not always and under all circumstanc cepted Hooper and Ahern as the only guaran-es fatal to recovery. This is very well shown tors. Niles v. Hancock, 14 Cal. 161, and oth- in Parrott v. Byers, 40 Cal. 614, 622: er like cases are cited, in which it was held that:

"Where an offer has once been rejected, the party rejecting cannot afterwards, at his option, accept the rejected offer, and thus convert the same into an agreement by acceptance."

The evidence does not warrant the application of this principle. The case here is quite different from the cases cited. Appellant signed the guaranty, as he testified, at the request of the Morgan Shoe Company-not at plaintiffs' request. He testified:

"Mr. Finlayson asked me if I would go on the bond. I told him yes, if it would help him; so he took it away."

He did not testify, and there was no evidence, that appellant attached any condition to his guaranty, nor was any conditional offer communicated to plaintiffs. Neither was there any evidence that plaintiffs refused to accept him as a guarantor, nor that plaintiffs offered to accept him as a surety on terms different from those found in the written instrument executed by appellant. The instrument seems to have been drawn in contemplation of being signed by more than one person, for its language is, "We do hereby covenant," etc. There is an entire failure of proof in support of appellant's an

"It is a familiar rule that where the relations between the parties are such that a demand and refusal is a condition precedent to the right of the plaintiff to maintain the action, a denial in the answer of the relation on which the action is founded will dispense with the necessity of an averment in the complaint of a previous deagainst his tenant, or by a vendor against his mand and refusal. In an action by a landlord vendee for the possession, or by a cestui que trust against the trustees to enforce the trust, if a demand and refusal were otherwise necessary, a denial in the answer that the alleged relation exists between the parties will dispense with the necessity of averring or proving a prior demand and refusal. The law does not require a useless act to be performed; and, when it is plain from the answer that if a demand had been made it would have been refused, it does not lie in the mouth of the defendant to object that no demand was made."

This case has been many times cited and with approval. In his verified answer appellant not only denied any liability, but denied the relationship in which he placed himself towards plaintiffs by the instrument sued upon. It seems to us quite apparent that a demand of payment before commencing the action would have been fruitless and unavailing, and hence was unnecessary. The judgment is affirmed.

We concur: HART, J.; BURNETT, J.

(32 Cal. App. 718)

MCCLATCHY et al. v. LAGUNA LANDS,
Limited, et al. (Civ. 1627.)

CHIPMAN, P. J. This is an appeal from an order denying appellants' motion for a change of the place of trial from San Joaquin

(District Court of Appeal, Third District, Cali- county to Fresno county. fornia. Feb. 6, 1917.)

34-PUBLIC

1. NAVIGABLE WATERS
SANCE-ABATEMENT-REMEDY.

In an action by the State Reclamation
Board to abate as a nuisance diversion of wa-
ters into San Joaquin river, under St. 1913, p.
252, 12, declaring that diversion of waters
that will increase the flow of the Sacramento
and San Joaquin rivers is a public nuisance
which may be prevented or abated by the recla-
mation board, where the allegations in the com-
plaint are comprehensive enough and injunc-
tive relief is asked for, it may be awarded where
it accomplishes purposes of abatement.
[Ed. Note.-For other cases, see Navigable
Waters, Cent. Dig. §§ 59-63, 67–70, 72.]
2. NAVIGABLE WATERS 34-PUBLIC NUI-
SANCE-ACTION.

The action is for the abatement of an alNUI-leged public nuisance and for an order restraining the defendants from doing any of the acts mentioned in the complaint, and is brought under the provisions of an act of the Legislature in effect August 10, 1913. Stats. 1913, p. 252. The act provides for the creation of a drainage district to be known as Sacramento and San Joaquin Drainage District, describing its boundaries, the appointing of a reclamation board for the management and control of said district, defining the powers and duties of the reclamation board, and for the prevention of the diversion of the waters of any stream into the Sacramento and San Joaquin rivers. Section 12 of the act declares that the board shall have power "to maintain actions to restrain the diversion of the waters of any stream that will increase the flow of water in said Sacramento or San Joaquin rivers or their tributaries, and such diversion of the waters of any stream into the said rivers or any of their tributaries is hereby declared to be a public nuisance which may be prevented or abated by the reclamation board." Section 7 of the act of 1913 declares that:

The merits of an action to abate as a nuisance diversion of water of a river contrary to St. 1913, p. 252, § 12, cannot be tried on affidavits.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 59-63, 67-70, 72.] 3. VENUE 5(5)—ACTION TO ABATE PUBLIC NUISANCE.

An action to abate as a public nuisance diversion of water contrary to St. 1913, p. 252, § 12, declaring diversion of water that will increase flow of Sacramento and San Joaquin rivers a public nuisance, where it involves injuries to real property, must be tried in the county in which the subject of the action or some part thereof is situated.

[Ed. Note.-For other cases, see Venue, Cent. Dig. § 9.]

4. NAVIGABLE WATERS

"The state of California and the people thereof are hereby declared to have a primary and supreme interest in having erected, maintained and protected on the banks of the Sacramento and San Joaquin rivers and their tributaries and the by-passes and overflow channels mentioned herein, good and sufficient levees and embankments or other works of reclamation, adequately protecting the lands overflowed by said streams, and confining the waters of said rivers ** within their respective channels"

34-PUBLIC NUISANCE-ACTION-COMPLAINT SUFFICIENCY. A complaint in an action brought in San Joaquin county to abate as a public nuisance diversion of water into San Joaquin river contrary to St. 1913, p. 252, § 12, need not allege that some specific tract of land in said county has been injured, or that injury is immediately present, it being sufficient if it can be gathered from complaint that lands therein are directly and it is made the duty of the reclamation threatened with the injury complained of. board to enforce the erection, maintenance [Ed. Note.-For other cases, see Navigable and protection of such levees, etc. Waters, Cent. Dig. §§ 59-63, 67-70, 72.] 5. VENUE 16 ABATEMENT OF PUBLIC NUISANCE.

Where real property injured by a public nuisance is situated partly in one county and partly in another, an action to abate such nuisance may be brought in either county under Code Civ. Proc. § 392.

[Ed. Note. For other cases, see Venue, Cent. Dig. § 23, 25-27.]

Appeal from Superior Court, San Joaquin County; J. A. Plummer, Judge.

Action by V. S. McClatchy and others, as members of the State Reclamation Board, against the Laguna Lands, Limited, L. A. Nares, Summit Lake Investment Company, and others. From an order denying a motion of the defendants named for a change of place of trial, they appeal. Affirmed.

Short & Sutherland and H. P. Brown, all of Fresno, for appellants. C. H. Oatman and Geo. O. Perry, both of San Francisco, for respondents.

It appears from the verified complaint that Kings river and the San Joaquin river have their source on the easterly slope of the Sierra Nevada Mountains, the San Joaquin river rising near the northeasterly portion of Fresno county, taking a westerly course and generally parallel with Kings river, which latter river is about 35 miles distant and south from San Joaquin river; that these rivers reach a designated point somewhere near the boundary line dividing Kings county from Fresno county, where, when unobstructed, the natural flow of Kings river diverges to the south, and has not naturally flowed into or become a part of the San Joaquin, and empties into Tulare Lake, while the San Joaquin river turns northerly, passing through the San Joaquin Valley in the counties of Fresno, Madera, Merced, Stanislaus, San Joaquin and Contra Costa, where it empties into Suisun Bay, an arm of San Francisco Bay. The complaint sets forth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

said San Joaquin river, as hereinbefore described"; that if said dams, embankments, and channels mentioned in the complaint are not abated, all of the flood or high waters of said Kings river will be diverted and turned into the San Joaquin river to the extent of 25,000 cubic second feet to 35,000 cubic second feet of water; that with the average velocity of said San Joaquin river between the point where said waters have been and will be commingled and the outlet of said San Joaquin river at four feet per second, and the average width of the San Joaquin river of from 500 to 750 feet, if the added waters of Kings river are permitted to flow through the San Joaquin river and confined to the width of the natural channel of the river, it will result in raising the water surface of San Joaquin river from 8 to 15 feet in elevation.

The prayer of the complaint is for judgment that "said dams, obstructions, embankments, and channels so erected, constructed, and maintained by said defendants be decreed to be and constitute a public nuisance, or public nuisances," and that defendants be required to abate the same, "and that said defendants, and each of them, be enjoined and restrained from the doing of any act or thing that may be injurious to any of the works necessary to control the flood waters of said San Joaquin river, or interfere with the successful execution of any plan of said state reclamation board which may be adopted for the control of such flood waters, and that they, and each of them, be forever enjoined and restrained from the diversion of any of the waters of said Kings river that will increase the flow of said San Joaquin river,

with much particularity that the defendants claim the unreclaimed portions of land along are engaged in efforts to turn the waters of Kings river in a northerly direction in the vicinity where the two rivers take opposite directions naturally, and have been engaged in the construction of artificial works for the purpose of forcing the water out of the natural channel of Kings river in a northerly direction and towards the San Joaquin river; that by these works defendants turned out said Kings river water to a point whence it could readily be turned into the San Joaquin river, and that defendants then constructed what is designated "the new channel," which furnished the means for the water to force its way to the San Joaquin river. The character of the soil through which this new channel is constructed is described as easily eroded, widened, and deepened by the action of the water, and has been since its construction so widened and deepened as to increase its carrying capacity until it is now capable of carrying from the watershed and slope of Kings river and into the watershed and slope of said San Joaquin river nearly all the high waters of said Kings river, and by such processes of erosion and enlarging, if it shall be permitted to continue to carry such waters of Kings river, within one or two years, it will be so enlarged as to divert all of the high and flood waters of Kings river and pass the entire flow thereof into said San Joaquin river; that the natural course of the San Joaquin river, as it continues to flow from the point where the waters of said Kings river are so mingled with it, is through the central portion of San Joaquin Valley in a northwest direction until it mingles with the water of Suisun Bay, and is through a lowlying country; that the natural floods of the San Joaquin river and its tributaries have, from time to time, flowed out over the banks of the river and over said low-lying lands, and inundated, within the natural flood planes of the river, upwards of 623,356 acres of such lands; that of these lands 300,000 acres have been sufficiently reclaimed by artificial works to be cultivated to crops and occupied for farms and homes, and approximately 300,000 acres additional are capable of being reclaimed by the erection of works within the jurisdiction of the plaintiff in this action; that the waters of Kings river which have been diverted therefrom by reason of said dams and other obstructions heretofore described as having been erected and maintained by defendants, "added to the natural highwater plane of said San Joaquin river, have so increased, and will, unless said works are abated, continue to increase, the water plane of said San Joaquin river at high water, that it has impaired, and, unless said works and diversions are abated, will continue to impair and destroy, a great portion of the reclamation work along said San Joaquin river, and has made, and will continue to make, it more difficult and expensive to re

and for such other and further relief as may be conformable to equity."

At the hearing defendants submitted two affidavits in support of the motion. L. A. Nares deposed that he is familiar with the obstructions mentioned in the complaint, and also with the water measurements of the San Joaquin river and the various reports of the general government covering a period of years commencing prior to the construction of said obstructions; that the said reports "show that the flood waters of Kings river

* have not, even during periods of highest known water on said Kings river, increased the water plane of the San Joaquin river at high water on said San Joaquin river"; that said reports show that the natural period of high water on the San Joaquin river at or near the southerly boundary of San Joaquin county, caused by water in said river from streams other than Kings river, “occurs much earlier in point of time than the natural period of high water at said point caused by water from said Kings river, and that in each season for many years last past, when the crest of the flood waters from the Kings river has reach

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