would not show who was the owner of the lots. It may have shown that J. C. Hawthorne had owned them in his life-time, and leave the inference that they then belonged to his heirs, but it would not have been any certificate of the ownership at the time whatever effect a proper certificate of that character may have had. It is my opinion that an assessment for a street improvement, if otherwise regular, would be valid if the auditor took such certificate, stating who was the owner of the lot, and entered the name so certified in the docket of city liens, although it was not in fact the name of the owner, but in such case it would have to be the name of a person who could be such owner. A deceased person, of course, could not be an owner of property, and the insertion of such a name would necessarily be a nullity from whatever source the auditor obtained it. A tax for street improvements is not against the person, it is against the property and to render it valid the act under which it is levied must be complied with in terms, and when that is done, no matter what those terms are, it becomes a legal charge upon the property. The name of the owner or that the owner is unknown, is inserted in the docket because the statute requires it, and if the auditor inserts therein as owner the name of a person capable of owning real property, and which has been duly certified to him in accordance with the statute, the effect would be the same whether such person was the owner or not. Such certificate must state who is the owner thereof, and if it stated some person not in esse it would not be a compliance with the statute.

Under the views here expressed, it necesarily follows that the name, "J. C. Hawthorne, Est. of," entered as the name of the owner in the docket of city liens was no compliance with the terms of the city charter upon the subject. The same determination was had in a number of cases cited by the respondent's counsel upon the argument. Another objection urged against the legality of the improvement is that said L street had been improved in 1872 by authority of said city at the expense of the adjacent property. It is conceded upon the part of the appellant that the street was so improved, but is denied that it was a full improvement-is claimed that it was but a partial improvement, and that it was therefore subject to be again improved. It appears from the pleadings and statements of counsel that on the eighth day of April, 1871, the city council passed an ordinance providing for the improvement of a part of said street including that portion of it adjacent to and abutting upon the lots in question; that the improvement between Fourth and Fifth streets, as provided in said ordinance, consisted of grading the street to the established grade, and the laying of a plank roadway sixteen feet wide, and sidewalks and crosswalks and gutter; that the street is sixty feet wide, and the improvement as to the planking only extended over half the roadway; that it left on each side of the planking and between it and the sidewalk a space of eight feet, which was graded but not planked. Upon this state of facts the court is called upon to determine whether the former improvement was a complete or partial one.

But I do not understand that the question is of any importance whatever in view of the provisions of other parts of the charter. Section 28, article 6, of the charter authorizes the council to repair any street or part thereof whenever it deems expedient, and to declare by ordinance, before doing the same, whether the cost thereof shall be assessed upon the adjacent property, or paid out of the general fund of the city; and section 29, same article, provides that if the council declare that a proposed repair shall be made at the expense of the adjacent property, thereafter the proposed repair is to be deemed an improvement, and shall be made accordingly; but if the council declare that the cost of the same shall be paid out of the general fund the repair may be made as the ordinance may provide and be paid accordingly, and that whenever it becomes necessary to replace or rebuild any elevated roadway, it shall be deemed an improvement. A part of these various provisions were in the original charter, and the other part has got in the charter by amendments; the result is the improvement of streets and repair of streets have become confounded. If the expense of the repair is to be charged upon the adjacent property it is an improvement; the distinction, therefore, in such cases is only in name. The proceeding out of which this controversy has arisen may be termed either an improvement or repair, the test seems to be whether the expense is to be charged upon the adjacent lots. If the council should term an improvement a repair, it would be immaterial, and I do not. see why the work undertaken in regard to the improvement of L street, as shown in this case, could not have been termed a repair as well as an improvement. When the council desclared that it should be made at the cost of the adjacent property, it was then deemed an improvement, and had to be made accordingly: Sec. 29, supra.

There are some other questions regarding the legality of the improvement in question, but they are not of a very serious character; nor is it necessary to determine them in this case. The strong point in the defense made by the appellant's attorney is the delay upon the part of the respondents to commence the suit to enjoin the collection of the tax. That question addresses itself with great force to the equity side of the court. It is a fundamental principle of equity that a party who encourages an improvement of the character of the one in question to be made, and from which he derives a benefit, shall not be allowed thereafter to question its legality; that it will not afford him any remedy under such circumstances. That doctrine is maintained by numerous authorities, but they all proceed upon the ground of an equitable estoppel. None of them go far enough to defeat the remedy of a party to have proceedings enjoined in such case upon the mere ground that the improvement has been beneficial to his property. They apply to cases where the party has by some act consented to the improvement resulting in the assessment. We cannot say in this case that the respondent gave her consent to the proceedings. She opposed them when she ascertained that a full improvement of the street was intended; and her failure to adopt some other remedy to avoid the

enforcement of the assessment is not sufficient of itself to deprive her of the remedy invoked in the suit. I am conscious of the hardship imposed upon the tax-payers of a city in allowing parties to escape the payment of the part which they should in justice contribute, upon technical grounds, when they have received the benefit, but that can only be remedied by legislative provision. The courts are powerless to afford a remedy in such a case, unless it comes within some acknowledged principle of jurisdiction. The decree appealed from must therefore be affirmed.

The chief justice concurred in the result.
LORD, J., expressed no opinion.

SUPREME COURT OF CALIFORNIA.

No. 8,174.

SWAIN ET AL. v. GRANGERS' UNION OF San Joaquin Valley. In Bank. Filed March 29, 1886.

EVIDENCE-AGREEMENT TO PAY INDEBTEDNESS.-Where a written contract provides for the payment of all the present and future indebtedness of another, parol evidence is inadmissible to show that a certain existing debt was not intended to be included. Under such contract, the meaning of the words "all indebtedness, present and future," is a question of law for the court, and not for the jury.

APPEAL from a judgment of the superior court of Stanislaus county, entered in favor of the plaintiffs, and from an order denying the defendant a new trial. The opinion states the facts.

Terry, McKinne & Terry, and Johnson & Hazen, for the appellant W. E. Turner, for the respondents.

THORNTON, J. The court erred in allowing the following question put to Swain, one of the plaintiffs, when called as a witness:

"At the time this contract was executed, what indebtedness was referred to by the parties when they speak of all indebtedness, present and future?"

It also erred in admitting the answer of Swain.

The written contract stated the indebtedness referred to as "present and future." It could not be stated more plainly. Why then allow the question? The question permitted the witness to state what indebtedness was referred to. The writing fixed the indebtedness signified. To allow the witness to say that this indebtedness, existing or future, was referred to, and that was not, would be to allow him to alter the express terms of the contract. This clearly appears from the answer of the witness, for he testified that an indebtedness plainly existing when the contract was executed was not referred to. We can

not conceive of a more plain infraction of the rule that the terms of a written agreement shall not be altered by parol testimony.

The following testimony of the secretary of defendant should also have been excluded:

"When we first entered into negotiations with the plaintiffs, and we signed exhibit A, it was not understood that before we would turn over this store and stock in trade to them as their own they should pay us this six-thousand-dollar note; there was no such understanding; the understanding was that when they paid this two thousand six hundred dollars, which we had assumed, and pay for what amount of goods we had furnished up to that time, then we were to turn over everything to them; that was the understanding up to the time this contract (exhibit A) was signed."

The court also erred in directing the jury that the written contract was so far ambiguous and uncertain that they must find from the testimony what indebtedness was meant by the words "all indebtedness present and future."

We see nothing ambiguous or uncertain in the words above mentioned. Their meaning was a question of law for the court, and not a question of fact to be determined by the jury. The direction left to the jury a question of law, which was plain and manifest error.

Witnesses may be allowed to testify what indebtedness as a fact existed, when the written contract was made, and what as a matter of fact accrued after that date. But the meaning of the words employed in the contract and selected by the parties to express their intention. was a question of law for the court only.

The oral evidence thus indicated as admissible is let in to show the subject-matter of the written agreement, and for this purpose is proper: 1 Greenl. Ev., secs. 287, 288.

Judgment and order reversed and cause remanded for a new trial. MORRISON, C. J., and Ross, SHARPSTEIN, and MCKEE, JJ., concurred. MCKINSTRY, J., concurring. I concur. If the broadest view be adopted with respect to the admissibility of evidence of the circumstances surrounding the parties, or contemplated by them when a contract is entered into, the witness ought not to have been permitted to state what, in his judgment, was the result of the circumstances; or that, in his opinion, they limited or changed the language of the written contract. Nor was this evidence of a usage or custom; or that language, unambiguous in itself, was, in the presence of such usage or custom, used in a peculiar sense, or bore a signification differing from that which it would ordinarily import.

No. 8,655.

CHENEY ET AL. v. O'BRIEN.

Department Two. Filed March 30, 1886.

WAY OF NECESSITY-PAROL EVIDENCE OF TITLE.-In an action to establish a right of way of necessity over defendant's lands, parol evidence is admissible to show that lands lying between the plaintiff's land and the county road belonged to a third person. AMENDMENT OF PLEADING-DISCRETION.-Applications to amend pleadings are addressed to the sound discretion of the court, and unless it clearly appears that the rights of the party objecting have been prejudiced by the amendment he will not be heard to complain.

EVIDENCE IN THIS CASE REVIEWED, and held that plaintiff was entitled to a way of necessity over defendant's land.

APPEAL from a judgment of the superior court of Sonoma county, entered in favor of the plaintiffs, and from an order denying the defendant a new trial. The opinion states the facts.

George Pearce, for the appellant.

William D. Bliss, for the respondents.

BELCHER, C. C. After carefully going over all the evidence presented in the transcript, we are unable to see that it does not justify the findings of the court. Upon some points there is a slight conflict, but that was a matter for the court below to consider and determine.

The way over the defendant's land, which he was alleged to have obstructed, was a "way of necessity," and besides, had been used by the plaintiffs long enough to give them a right to it by prescription. The fact that when the ground was soft the plaintiffs had sometimes turned out at one point, and made as many as seven different tracks there, did not affect their rights to the way. Nor was it material whether the road to which the way led was a county road, as testified to by one of the plaintiffs, or a mere by-road, as testified by defendant. It appeared, without contradiction, to be a road which the plaintiffs and others had used for a good many years, and that was all that was necessary for the purposes of the case.

In the progress of the trial, four objections and exceptions to the admission of evidence were taken by the defendant, and the rulings are assigned as errors.

The first two relate to the road above referred to. A witness for plaintiffs, in giving his testimony, at one time called the road a highway, and at another time a county road. The defendant objected that the testimony was secondary, and incompetent, and moved to strike

out the answers.

We do not think the plaintiffs were called upon to show that the road had been formally laid out or dedicated so as to make it a public highway. It was beyond the defendant's land, and no question was raised as to the right of the plaintiffs to pass over it. Whether it was