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had the appearance of having been “sawed as to facilitate the proper and efficient peroff." This same witness further testified formance of its obligations to the public, it that:

is necessarily its duty to remove from any "The size of the big limbs sawed off were from point along the route over which it has been as big as my thumb up to three inches. There was a place cut out through the trees that granted the right, either by the public aulooked four or five feet wide. That left the big thorities or by judgments in condemnation limbs coming up on either side."

or by agreements with private individuals, to The witness Keehn stated:

run and maintain its lines, any obstruction That he was “called in by Mr. Altpeter after interfering with the safe and proper transthe cutting of these trees. I measured up the mission of messages. As has been shown, it size of the limbs that were cut. They averaged had the lawful authority (Code Civ. Proc. $ all the way from 1 to 112 inches. The stubs are still on the trees and can be measured up if 733) to cut or trim limbs and branches from desired. I couldn't tell exactly how many limbs the trees in question, if necessary for a safe were cut. I should judge all the way from five and proper transmission of messages over its to six branches on each tree, mostly out of the wires passing through and in said trees. center of the tree. The brush on the ground after it was cut would make a good sized wagon- Therefore the number of the branches or load, I should judge. The trees were black wal- limbs removed, whether large or small, or the nut, about 18 or 20 years old. Some of these size of the limbs or branches so removed, cuttings were on an average of about 10 or 12 whether large or small, or what influence feet below the cross-arm.' The witness Murray, for the plaintiffs, tes the limbs and branches from the trees ex

and to what extent, if any, the severance of tified that:

erted in depreciating the value of the prop“The tops were cut out of the trees, leaving the wires six or eight feet from the points where erty in front of which the trees stand and the limbs were taken from the trees.'

grow, constitute facts which become wholly Mrs. Altpeter, one of the plaintiffs, testi- / immaterial and unimportant unless it be fied:

shown that the defendant unnecessarily stripThat the trees were in the month of August, ped the trees of certain of their branches and 1911, "terribly disfigured by cutting them off limbs or destroyed more branches and limbs right straight at the top. They have no shade at than the necessities of the situation actually the top. that time and gave no permission to any one to required. In this case, whatever may be the trim them.

* i did not see any of the extent and effect of the damage the cutting branches that were cut off. The main limbs of and trimming of the limbs and branches of the trees were cut. I don't know how big the the trees might have had on the property of limbs were that were cut off, but they were the main limbs, the center limbs, I would call it." the plaintiffs, it having been shown by the

evidence without conflict that such cutting [6] The foregoing comprehends substan

and trimming were necessary to the safe and tially a statement of all the testimony presented by the plaintiffs upon the question proper operation of the defendant's wires as as to the cutting or trimming of the trees. dicted is damnum absque injuria, and there

transmitters of messages, the damage so inThe burden was upon the plaintiffs to show that either it was entirely unnecessary to fore can form no basis for a recovery by the

plaintiffs. remove any branches or limbs from the trees

The defendant has presented and argued for the purpose claimed by the defendant or that the latter removed more limbs and other points in impeachment of the judg. branches than the situation with respect to ment, but, in view of the conclusion above an

nounced, they need not be considered. its wires called for. [7] This burden they wholly failed to sus

For the reasons above explained, the judgtain. Heller was the only witness who gave ment must be reversed; and it is so ordered. any testimony upon this question, and he

We concur: CHIPMAN, P. J.; BURdeclared, as will be observed, that only so much and such parts of the trees were trim

NETT, J. med and cut as were necessary to prevent collision between the wires and the branches TURTON et al. v. SHINN et al. (Civ. 1605.)

(32 Cal. App. 751) -a collision or contact which would have caused such interference with the transmis- (District Court of Appeal, Third District, Calision of messages over the wires as would

fornia. Feb. 8, 1917.) necessarily have destroyed that efficient serv- 1. GUARANTY 25(3)-ACCEPTANCE OF GUABice which the defendant, as a telegraph cor ANTOR-EVIDENCE. poration, owes to the public, and the failure In an action on a guaranty signed by three to furnish which may subject it to the se- that the creditor refused to accept the first sign

guarantors, evidence held insufficient to show verest penalties in one form or another. This er alone so as to release him. was one of the vital questions of fact in the [Ed. Note.-For other cases, see Guaranty, case. Indeed, it constituted the very founda- Cent. Dig. $ 104.) tion of plaintiffs' right to a recovery ; for ob- 2. GUARANTY 85(2)-LIABILITY OF GUARviously, since the defendant, as a public serv.


Phough the guarantor may make his obliice corporation, is, as above explained, charg- gation depend on notice or demand, the law, in ed with the duty of so maintaining its wires / view of Civ. Code $ 3532, requires no idle act,

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

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and as a failure to observe a precedent condition, from defendant the payment thereof. The is not always fatal to recovery, where defend, cause was tried by the court without a jury, ant guarantor denied that he had been accepted as a guarantor, it was not necessary for the and plaintiffs had judgment for $1,500 and guarantees to allege demand.

costs of suit, taxes at $20. Defendant shinu [Ed. Note.-For other cases, see Guaranty, appeals. Cent. Dig. $ 99.)

It is not necessary to state the terms of

the Appeal froin Superior Court, Sacramento

ease, as no question arises concerning County; Peter J. Shields; Judge.

its purport. The lessee, Morgan Shoe ComAction by Nellie Turton and another pany, became insolvent and defaulted in payagainst C. G. Shinn and others. Judgment ment of rentals in an amount in excess of for plaintiffs, and defendant Shinn appeals. $1,500. Hence the action against the guaranAtfirmed.


Appellant specifies the following particuShinn & Shinn, of Sacramento, for appel- lars wherein he claims the evidence to be lant. White, Miller, Needham & Harber, of insufficient to justify the decision of the Sacramento, for respondents.


(1) The evidence is insufficient to justify the CHIPMAN, P. J. The action is against portion of finding No. V, viz.: "That proof of defendants as guarantors of a certain lease such demand upon defendant, C. G. Shinn, was executed by plaintiffs as lessors and the neither required nor necessary. The contract

of guaranty, expressly provides that demand Morgan Shoe Company, a corporation, as must be made. (2) There is no evidence to juslessees, the premises being situated at No. tify that portion of finding VII, viz.: "That the 801 K street, in the city of Sacramento. The averments in the answer of defendant C. G.

Shinn, and each of them, is not true.' He avers guaranty reads as follows:

that his offer to guarantee was not accepted by "In consideration of the foregoing lease or plaintiffs. The evidence of plaintiffs' agent, agreement, and one dollar to me paid, the receipt Frank Hickman, shows that the offer was conwhereof is hereby acknowledged, we do hereby ditionally accepted, and that defendant never covenant, promise and agree, to and with the assented to the condition thus imposed.” said Nellie Turton and Kate Turton that the said Morgan Shoe Company, a corporation, shall

The lease was prepared by Frank Hickwell and truly pay all rents and perform and man, a real estate and insurance agent, actesecute all the covenants therein contained on ing in the matter as plaintiffs' agent. He its part, and that on its failure to do so in any testitied: particular will on demand pay unto said Nellie Turton and Kate Turton all rents or damages

That he secured the Morgan Shoe Company that may happen or occur by reason of such as tenant of the premises; that the Morgan Shoe failure, not exceeding the sum of fifteen hun- Company obtained the signatures of the guardred dollars, and immediate notice of default is antors and as executed by that company with hereby expressly waived.

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 plaintember, 1913. C. G. Shinn.

tiffs. “Q. State the circumstances concerning "H. S. Baxter-Hooper.

the signatures of the guarantors. A. The best "Dave Ahern,

of my recollection, they brought the lease in "Signed, sealed and delivered_in_the presence with the name of Shinn. I told them that was of A. L. Shinn, A. B. Erway, H. F. De Back.” not sufficient; then followed with Mr. Hooper

I did not know Hooper-and made the same obThe complaint is verified.

jections. They finally brought in Mr. Ahern's Answering the complaint, defendant Shinn name, then I told him I thought the three of denied that he, together with the other al- them , would be satisfactory. We accepted the

lease.” leged guarantors, "subscribed or delivered to

He testified to the occupancy by the Morthe plaintiffs an agreement guaranteeing the

gan Shoe Company; its bankruptcy later; payment of all or any rents or damages that the amount of rentals paid and still unpaid, might happen or occur by reason of the

etc., as to which no question arises. On failure of the Morgan Shoe Company to pay

cross-examination he testified: the said rent,” etc.; averred that defendant affixed his signature to said instrument, and presented the lease wth the signature of C. G.

By Mr. Carl Shinn: Q. Do you recall who it "was thereupon presented by the Morgan Shinn attached? A. One of the men of the MorShoe Company to plaintiff for acceptance"; gan Shoe Company. Q. That was Mr. Tom Finthat plaintiff refused to accept defendant as did you tell him?

layson, was it not? A. I think so. Q. What

A. I told him that I did guarantor, and defendant was forthwith no- not know Shinn. I would like to have addi. tified by said company of said refusal; that tional bondsmen-additional security on the said company “thereafter obtained the sig. lease. Q. Did you ever communicate with Mr.

Shinn in reference to obtaining other signanatures of said Hooper and Ahern to sai.ltures? A. No, sir. Q. You never communicatinstrument as the guarantors of the rents ed with him in any respects regarding the guarand damages as aforesaid; that plaintiffs anțy?.. A. No, sir. Q. All your dealings occur

red with the Morgan Shoe Company? A. Yes, accepted the said Hooper and Ahern as the sir. Q. He never expressed his assent to that only guarantors of said rents and damages, arrangement stated by you for other signatures? and plaintiffs ever since said acceptance have 4. I do not think I had any conversation with treated with the said Hooper and Ahern objected to his signature for the reason that it

Mr. Shinn whatever. Q. All you know is you as the only guarantors of the said rents and was not sufficient? A. I simply asked for addidamages”; denied that plaintiffs ever noti- tional security on the lease. I did not object to fied him of the company's default in the the signatures; no, sir. Q. You refused to ac

cept that signature, however? A. No, sir; I payment of said rents, or ever demanded 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. Q:ments 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 re

fused to accept him as guarantor of the rents Defendant Shinn testified as follows:

or damages, and that plaintiffs accepted the "Q. State briefly what connection you had said Hooper and Ahern as the only guarantors with the lease. A. I had acknowledged the signa- of said rents and damages; * * that said tures of the Morgan Shoe Company. Mr. Fin- last-named defendants denied the relationship layson asked me if I would go on the bond. I existing between them and plaintiffs by reason told him yes, if it would help him; so he took of the execution and delivery by them of said it away.

contract and the liabilities and consequences "The Court: Was Mr. Finlayson one of the arising therefrom; that proof of such demand firm ? A. One of the members of the Morgan upon defendants Shinn and Hooper was neither Shoe Company.

required nor necessary." "Mr. Carl Shinn: Q. You say Mr. Tom Fin

[2] It is contended that: layson was negotiating the lease and guaranty in behalf of the Morgan Shoe Company? A. Yes.

It is within the power of a guarantor to make Q. Is Mr. Tom Finlayson now living? A. No, bis obligation dependent upon notice, demand, or sir; he died about three months ago.'

any other condition be deems proper for his

own protection and safety"; that his liability The remaining questions put to this wit cannot be extended beyond the terms of his conness called for conversations later between tract. Finlayson and the witness and were object

This view of the law may not be questioned to and not answered.

ed. 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 ed to.

dealing with the contractual relations of [1] Appellant's defense is that plaintiffs re men. A failure to observe a precedent confi. fused to accept him as a guarantor and action is not always and under all circumstano 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 between the parties are such that a demand and

"It is a familiar rule that where the relations that:

refusal is a condition precedent to the right of “Where an offer has once been rejected, the the plaintiff to maintain the action, a denial in party rejecting cannot afterwards, at his option, the answer of the relation on which the action is accept the rejected offer, and thus convert the founded will dispense with the necessity of an same into an agreement by acceptance." averment in the complaint of a previous deThe evidence does not warrant the applica- against his tenant, or by a vendor against his

mand and refusal. In an action by a landlord tion of this principle. The case here is quite vendee for the possession, or by a cestui que different from the cases cited. Appellant trust against the trustees to enforce the trust, signed the guaranty, as he testified, at the if a demand and refusal were otherwise neces.

sary, a denial in the answer that the alleged request of the Morgan Shoe Company-not relation exists between the parties will disat plaintiffs' request. He testified:

pense with the necessity of averring or proving "Mr. Finlayson asked me if I would go on the a prior demand and refusal. The law does not bond. I told him yes, if it would help him; require a useless act to be performed; and. when so he took it away.'

it is plain from the answer that if a demand

had been made it would bare been refused, it He did not testify, and there was no evi- does not lie in the mouth of the defendant to obdence, that appellant attached any condition ject that no demand was made." to his guaranty, nor was any conditional This case has been many times cited and offer communicated to plaintiffs. Neither with approval. In his verified answer appelwas there any evidence that plaintiffs re- lant not only denied any liability, but defused to accept him as a guarantor, nor that nied the relationship in which he placed himplaintiffs offered to accept him as a surety self towards plaintiffs by the instrument sued on terms different from those found in the upon. It seems to us quite apparent that a written instrument executed by appellant. demand of payment before commencing the The instrument seems to have been drawn in action would have been fruitless and unavail. contemplation of being signed by more than ing, and hence was unnecessary. one person, for its language is, "We do here The judgment is affirmed. by covenant," etc. There is an entire failure of proof in support of appellant's an We concur: HART, J.; BURNETT, J.

(32 Cal. App. 718)

CHIPMAN, P. J. This is an appeal from McCLATCHY et al. v. LAGUNA LANDS, an order denying appellants' motion for a Limited, et al. (Civ. 1627.)

change of the place of trial from San Joaquin (District Court of Appeal, Third District, Cali- county to Fresno county. fornia. Feb. 6, 1917.)

The action is for the abatement of an al1. NAVIGABLE WATERS 34–PUBLIC Nui leged public nuisance and for an order reSANCE-ABATEMENT-REMEDY.

straining the defendants from doing any of In an action by the State Reclamation the acts mentioned in the complaint, and is Board to abate as a nuisance diversion of wa- brought under the provisions of an act of the ters into San Joaquin river, under St. 1913, p. 252, 12, declaring that diversion of waters Legislature in effect August 10, 1913. Stats. that will increase the flow of the Sacramento 1913, p. 252. The act provides for the creaand San Joaquin rivers is a public nuisance tion of a drainage district to be known as which may be prevented or abated by the recla- Sacramento and San Joaquin Drainage Dismation board, where the allegations in the complaint are comprehensive enough and injunc trict, describing its boundaries, the appointtive relief is asked for, it may be awarded where ing of a reclamation board for the manageit accomplishes purposes of abatement.

ment and control of said district, defining the {Ed. Note. For other cases, , see Navigable powers and duties of the reclamation board, Waters, Cent. Dig. $8 59-63, 67–70, 72.]

and for the prevention of the diversion of the 2. NAVIGABLE WATERS w34—PUBLIC Nui- waters of any stream. Into the Sacramento SANCE-ACTION.

The merits of an action to abate as a pui- and San Joaquin rivers. Section 12 of the sance diversion of water of a river contrary to act declares that the board shall have power St. 1913, p. 252, $ 12, cannot be tried on affi- “to maintain actions to restrain the diverdavits.

sion of the waters of any stream that will [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. $8 59-63, 67–70, 72.]

increase the flow of water in said Sacramen3. VENUE Om5(5)-ACTION TO ABATE PUBLIC to or San Joaquin rivers or their tributaries, NUISANCE.

and such diversion of the waters of any An action to abate as a public nuisance di- stream into the said rivers or any of their version of water contrary to St. 1913, p. 252, tributaries is hereby declared to be a public $ 12, declaring diversion of water that will increase flow of Sacramento and San Joaquin nuisance which may be prevented or abated rivers a public nuisance, where it involves in- by the reclamation board.” Section 7 of the juries to real property, must be tried in the act of 1913 declares that: county in which the subject of the action or some part thereof is situated.

“The state of California and the people there[Ed. Note.-For other cases, see Venue, Cent. of are hereby declared to have a primary and Dig. 9.)

supreme interest in having erected, maintained

and protected on the banks of the Sacramento 4. NAVIGABLE WATERS 34—PUBLIC Nur- and San Joaquin rivers and their tributaries SANCE-ACTION-COMPLAINT-SUFFICIENCY. and the by-passes and overflow channels men

A complaint in an action brought in San tioned herein, good and sufficient levees and Joaquin county to abate as a public nuisance embankments or other works of reclamation, diversion of water into San Joaquin river con- adequately protecting the lands overflowed by trary to St. 1913, p. 252, $. 12, need not allege said streams, and confining the waters of said that some specific tract of land in said county rivers

within their respective chanhas been injured, or that injury is immediately nels" 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. $8 59-63, 67–70, 72.]

It appears from the verified complaint that 5. VENUE 16 ABATEMENT OF PUBLIC Kings river and the San Joaquin river have NUISANCE.

Where real property injured by a public their source on the easterly slope of the Siernuisance is situated partly in one county and ra Nevada Mountains, the San Joaquin river partly in another, an action to abate such nui- rising near the northeasterly portion of sance may be brought in either county under Fresno county, taking a westerly course and Code Civ. Proc. § 392.

[Ed. Note.-- For other cases, see Venue, Cent. generally parallel with Kings river, which Dig. $8 23, 25–27.]

latter river is about 35 miles distant and

south from San Joaquin river; that these Appeal from Superior Court, San Joaquin rivers reach a designated point somewhere County; J. A. Plummer, Judge.

near the boundary line dividing Kings county Action by V. S. McClatchy and others, as from Fresno county, where, when unobstructmembers of the State Reclamation Board, ed, the natural flow of Kings river diverges against the Laguna Lands, Limited, L. A. I to the south, and has not naturally flowed Nares, Summit Lake Investment Company, into or become a part of the San Joaquin, and others. From an order denying a motion and empties into Tulare Lake, while the of the defendants named for a change of San Joaquin river turns northerly, passing place of trial, they appeal. Affirmed.

through the San Joaquin Valley in the counShort & Sutherland and H. P. Brown, allties of Fresno, Madera, Merced, Stanislaus, of Fresno, for appellants. C. H. Oatman and San Joaquin and Contra Costa, where it Geo. O. Perry, both of San Francisco, for re-empties into Suisun Bay, an arm of San spondents.

Francisco Bay. The complaint sets forth

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

with much particularity that the defendants claim the unreclaimed portions of land along are engaged in efforts to turn the waters of said San Joaquin river, as hereinbefore deKings river in a northerly direction in the scribed"; that if said dams, embankments, vicinity where the two rivers take opposite and channels mentioned in the complaint are directions naturally, and have been engaged not abated, all of the flood or high waters in the construction of artificial works for the of said Kings river will be diverted and turnpurpose of forcing the water out of the ed into the San Joaquin river to the extent natural channel of Kings river in a northerly of 25,000 cubic second feet to 35,000 cubic direction and towards the San Joaquin river; second feet of water; that with the average that by these works defendants turned out velocity of said San Joaquin river between said Kings river water to a point whence it the point where said waters have been and could readily be turned into the San Joaquin will be commingled and the outlet of said river, and that defendants then constructed San Joaquin river at four feet per second, what is designated “the new channel,” which and the average width of the San Joaquin furnished the means for the water to force its river of from 500 to 750 feet, if the added way to the San Joaquin river. The character waters of Kings river are permitted to flow of the soil through which this new channel through the San Joaquin river and confined is constructed is described as easily eroded, to the width of the natural channel of the widened, and deepened by the action of the river, it will result in raising the water surwater, and has been since its construction so face of San Joaquin river from 8 to 15 feet widened and deepened as to increase its in elevation. carrying capacity until it is now capable of The prayer of the complaint is for judg. carrying from the watershed and slope of ment that "said dams, obstructions, embankKings river and into the watershed and slopements, and channels so erected, constructed, of said San Joaquin river nearly all the high and maintained by said defendants be dewaters of said Kings river, and by such pro-creed to be and constitute a public nuisance, cesses of erosion and enlarging, if it shall be or public nuisances," and that defendants be permitted to continue to carry such waters of required to abate the same, "and that said Kings river, within one or two years, it will defendants, and each of them, be enjoined be so enlarged as to divert all of the high and restrained from the doing of any act or and flood waters of Kings river and pass the thing that may be injurious to any of the entire flow thereof into said San Joaquin works necessary to control the flood waters river; that the natural course of the San of said San Joaquin river, or interfere with Joaquin river, as it continues to flow from the successful execution of any plan of said the point where the waters of said Kings state reclamation board which may be adoptriver are so mingled with it, is through the ed for the control of such flood waters, and central portion of San Joaquin Valley in a that they, and each of them, be forever ennorthwest direction until it mingles with the joined and restrained from the diversion of water of Suisun Bay, and is through a low- any of the waters of said Kings river that lying country; that the natural floods of the will increase the flow of said San Joaquin San Joaquin river and its tributaries have,


and for such other and furfrom time to time, flowed out over the banks ther relief as may be conformable to equity." of the river and over said low-lying lands, At the hearing defendants submitted two and inundated, within the natural flood planes affidavits in support of the motion. L. A. of the river, upwards of 623,356 acres of such Nares deposed that he is familiar with the lands; that of these lands 300,000 acres have obstructions mentioned in the complaint, and been sufficiently reclaimed by artificial works | also with the water measurements of the to be cultivated to crops and occupied for San Joaquin river and the various reports farms and homes, and approximately 300,000 of the general government covering a period acres additional are capable of being re- of years commencing prior to the construcclaimed by the erection of works within the tion of said obstructions; that the said rejurisdiction of the plaintiff in this action; 1 ports "show that the flood waters of Kings that the waters of Kings river which have river

have not, even during peribeen diverted therefrom by reason of said ods of highest known water on said Kings dams and other obstructions heretofore de- river, increased the water plane of the San scribed as having been erected and maintain- Joaquin river at high water on said San ed by defendants, "added to the natural high- Joaquin river"; that said reports show that water plane of said San Joaquin river, have the natural period of high water on the San so increased, and will, unless said works are Joaquin river at near the southerly abated, continue to increase, the water plane boundary of San Joaquin county, caused by of said San Joaquin river at high water, water in said river from streams other than that it has impaired, and, unless said works Kings river, "occurs much earlier in point and diversions are abated, will continue to of time than the natural period of high wa. impair and destroy, a great portion of the ter at said point caused by water from said, reclamation work along said San Joaquin Kings river, and that in each season for river, and has made, and will continue to many years last past, when the crest of the make, it more dificult and expensive to re | flood waters from the Kings river has reach

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