the United States government reservation, | eration of the road from one end to the othsaid extension being nearly 20,000 feet long.er and also of the intermediate branches. It On April 7, 1887, the surveyor general ap- has no logical relation to the construction of proved this selection and issued a permit em- tracks over lands subsequently acquired at powering the Southern Pacific Railroad Com- one terminus for the purposes of increasing pany to take and use said strips for exten- its facilities and capacity to accommodate sions of its line thereon, and for yards, side the traffic to be handled at that end of the tracks, spur tracks, depot buildings, ware- line. The railroad from Los Angeles to San houses, wharves, and other adjuncts to facili- Pedro was completed, and a connection with tate the transportation of freight and pas- the San Pedro inner harbor and with boats sengers to and from the bay. At that time sailing therefrom near the northerly end of the city of San Pedro had not become incor- the spur extension had been made, and the porated and the town of Wilmington had system was in full operation many years bebeen disincorporated by the act of March 12, fore the issuance of the permit to use the 1887 (Stats. 1887, p. 108). Consequently, the land for these extensions. It is clear from land selected was not within three miles of the facts shown that the extensions of track any incorporated town or city. Prior to the for which this permit was obtained was not year 1888, the said company extended its for a branch road, or for a new road, in any track from its previous terminus on the bay, usual meaning of those terms, but were mereconstructing the westerly branch of the ex- ly for the purpose of affording space for entension to a point where the east line of San larging the terminal facilities at the harbor, Pedro street in the city of San Pedro, now from time to time, as demanded by the volLos Angeles, crosses said strip, and the east- ume of commerce. The proper time for conerly spur extension to a point 1,000 feet from structing additional trackage or adjuncts at the extremity thereof. It has ever since the the termiņus of a railroad must depend on construction thereof continued to operate its the increase of commerce and the needs arisrailroad over these tracks. It has never ex- ing therefrom. The completion of a proposed tended its tracks further along said strips, extension of its road at one end of its line, or either of them. The two defendants op- for reasons of this character, does not come erate together, one under a lease from the within the object intended to be secured by other. the forfeiture clause of section 468. Arcata The action was begun by the state to en- v. Arcata, etc., Co., 92 Cal. 646, 28 Pac. 676. join the defendants from laying or maintain- It is not a part of the completion of the road ing any railroad or other improvements up-between the termini as described in the origon the portions of the two strips upon which, inal articles of incorporation, to which that as above stated, it has not constructed any section relates. railroad, and for judgment that all rights in said portions of said strips of land have become lost by abandonment, and forfeited to the state of California. The defendants claim under the permits from the surveyor general above mentioned as evidence of the specific location of the general grant made by the state by said sections of the Civil Code. [2] Section 468 of the Civil Code provides that: "Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited." Respondent claims that the unused ends of these extensions are forfeited by reason of this provision. We do not think section 468 applies to this case. It refers to the original articles of incorporation which are provided for in section 291. Section 291 requires the original articles of incorporation of any railroad company to state the kind of road to be constructed and "the place from and to which it is intended to be run, and all the intermediate branches." The purpose of section 468 is to secure the performance of the promise implied from this part of the articles; that is, the due completion and full op [3] It also appears that in 1906 Randolph H. Miner obtained a lease for 50 years from the city of San Pedro of a tract of land embracing the second or westerly parcel here in controversy, in consideration whereof he agreed to construct a sea wall, docks, and slips along the harbor line as finally fixed by the United States government, with channels leading therefrom to deep water, and to fill in with earth the space between said wall and the shore. This lease was confirmed on March 23, 1907, by the Legislature. Stats. 1907, p. 987; Koyer v. Miner, 156 Pac. 1023. In pursuance of this lease, the harbor wall with the improvements contemplated were constructed and the space behind filled in with earth, so that the defendant's westerly strip now lies inland, except at the extreme end, where it intersects the harbor line. Thereafter Miner conveyed to the defendants all his interest in said westerly parcel. This conveyance is pleaded as a defense. The right given to the defendants by the Civil Code and the surveyor general's permit is a right continuing during the corporate existence of the defendant Southern Pacific Railroad Company, and perhaps for any lawful extensions of its period of existence. This may carry it beyond the expiration of the 50-year lease given to Miner. Consequently, the grant from Miner is not a complete an general's permit is now forfeited, such forfeiture would defeat the right of possession of the defendants to the property under the permit, but it would not defeat its right to continue in possession under the Miner lease. If the judgment had merely declared that the right obtained by the surveyor general's permit herein before mentioned had been forfeited and had reverted to the state, no error could have been predicated upon the conveyance by Miner to the defendants. In that event, it would not have affected the right of the defendants to occupy and use the land for railroad purposes under their grant from Miner for the period of the lease. But the judgment goes further and declares that the title of the defendants to that parcel has reinvested in the state of California "free of any claim or title of the defendants." In so far as this declares that it is free of any claim held by the defendants by virtue of the grant from Miner it is erroneous, even if it should be conceded that there has been a forfeiture of the rights under the aforesaid permit from the state. This brings us to the question whether the use of the lands selected had been abandoned within the meaning of section 477 of the Civil Code, so that the land had reverted to the state, at the time the action was begun, as provided in that section. swer to the cause of action with regard to | years 1905, 1906, 1907, and 1908, the defend. this parcel. If the right under the surveyor ants had plans drawn, estimates made, and other preparatory work done for the building of railroad tracks and wharves on this 1,000 feet and actually did a part of the work, but it was stopped because of the uncertainty of the defendants as to their title to the property. These doubts, we presume, arose out of the public agitation and discussion preceding the initiation, in October, 1908, of the litigation over tidelands bordering on San Pedro Bay. See People v. Southern P. R. Co., 166 Cal. 614, 138 Pac. 94. This action was begun some time in 1909, and the rights here involved were expressly excluded from the judgments in those cases. A part of the strip was included in some of the tideland locations in controversy there. There was no evidence of any declaration by the defendants, or any of their officers or agents, indicating that the defendants, or either of them, had abandoned, or ever intended to abandon, the rights they possessed under the grant of the right of way upon this portion of the selection. There is no proof that the needs of commerce during this period were such that the public interest demanded that the railroad should be completed farther along these strips, or that wharves should be built thereon, or that, during this period, the existing, or probable immediate future traffic, would have justified the cost of building such tracks or wharves, or that any The facts bearing upon this question are as other person or corporation desired, or was follows: In December, 1891, the defendants willing, to put these lands to any immediate began the work of extending the railroad public use. It was stipulated that the conover the spur along the harbor front line, struction of the spur is now a proper prepby driving piling along the sea wall upon aration for the increasing commerce at the which to erect a wharf and railroad track. port. During the entire period the defendThey had driven the piles for 660 feet south-ants were actively operating the railroad erly from the northerly end of the unoccu- from San Pedro to Los Angeles, which was pied 1,000 feet when they were enjoined from an important part of the Southern Pacific continuing the work by the city of San Pedro system, and there was a very heavy traffic in an action against them, and this injunction thereon. It is not claimed that they were continued in force until March, 1894. San not at all times abundantly able to lay Pedro v. Southern P. R. Co., 101 Cal. 333, 35 tracks on these extensions if they had dePac. 993. Thereafter nothing further was sired so to do. No reason for their failure done toward the completion or use of the therein appears, except that until about the spur extension, until January, 1903. At that time the action was begun there was no imtime they put in a bulkhead along the sea mediate necessity therefor growing out of the wall line and filled in the land behind it. needs of commerce. With respect to the The harbor lines had been changed so as to westerly strip extending over the lands covcut off and include in the channel the ex- ered by the Miner lease, near the original tremity of this proposed spur. The bulkhead shore line, it does not appear that any use was completed in August, 1903. Thereafter has been made of that portion thereof lying they used this 1,000 feet of the spur exten-southerly of the crossing of San Pedro street, sion until January, 1903. At that time they and no acts of control have been exercised by put in bridge materials and other things the defendants except the aforesaid transacneeded for the maintenance of their rail-tion following the lease to Miner and the road, but no railroad track, wharves, or other payment of taxes thereon. There is no evistructures connected with said railroad have dence, however, of any intention by the debeen built thereon. The construction of a fendants to abandon this strip except such wharf on the northerly end thereof was be- inferences as may be drawn from the failure gun in 1904, but it was discontinued because to extend the tracks over the same. No perthe material provided for that purpose was son ever disputed the right of the defendants needed for immediate use to construct a therein, or ever occupied the same adversely. levee on the Colorado river to restrain a It was stipulated that both of these strips of flood in that river. Afterwards, during the land have been assessed for taxes by the state to the defendants and that the defend- | Cal. 714, 126 Pac. 972; Moon v. Rollins, 36 ants have paid the taxes thereon. [4] The grant from the state made by section 474 of the Civil Code is a direct grant to each company accepting it. It is general and unlocated, but when a railroad corporation selects the land it desires, files its plat thereof, and its selection is recorded and approved by the surveyor general, and his permit to use the same is duly issued to the corporation, the grant becomes defined and complete and is as effective to convey the right as it would have been if made by legislative act or by a duly authorized patent describing the land with precision. This permit, therefore, in connection with the statutory grant, constituted the defendants grantees of an easement or franchise over the land described for use of their railroad and for all necessary adjuncts thereof. The rules for determining whether or not the right granted has been forfeited by breach of condition subsequent are, consequently, the same as those whose which apply to any direct grant of a franchise or lease to use land for a public purpose. Cal. 338, 95 Am. Dec. 181; Judson v. Malloy, 40 Cal. 309; Richardson v. McNulty, 24 Cal. 345; Lawrence v. Fulton, 19 Cal. 690; Utt v. Frey, 106 Cal. 397, 39 Pac. 807; Wood v. Etiwanda W. Co., 147 Cak 234, 81 Pac. 512. In Smith v. Worn the court says: "An easement acquired by deed is not lost by mere nonuser. It must be accompanied with ment." the express or implied intention of abandon In Moon v. Rollins, in defining "abandonment," the court said: "It is a question of intention, and has been so held over and over again, and not a question of time, except so far as the jury are entitled to consider lapse of time in connection with other circumstances of claim, or nonclaim, and acts of ownership and dominion, or a want of such acts, for the purpose of ascertaining the intention." In Lawrence v. Fulton an instruction, which declared "that lapse of time does not constitute an abandonment," was approved, and it was added that, in deciding the question of abandonment, lapse of time was not, to speak with exactness, the material element, but only "a material element to be considered." There are some cases in which it is said that abandonment by nonuser may be the more readily presumed in the case of the grant of an easement for public use. Louisville Trust Co. v. Cincinnati, 76 Fed. 315, 22 C. C. A. 334; Henderson v. Railway Co. (C. C.) 21 Fed. 368. But in each of these cases there were other circumstances indicating a positive intent to abandon and nonuser was not said to be in itself sufficient to show such intent. [5, 6] From the facts above stated it is clear that the finding of the court below that the defendants had abandoned the strips of land in controversy has no support in the evidence, except that which it may derive from the fact that there was a nonuse of the 1,000-foot strip for the nine years from 1894 to 1903 and a nonuse of the other branch from 1888 until the beginning of the action. It is the theory of the plaintiff that nonuse of such a franchise for these periods is sufficient evidence of both the fact of abandonIn this case there are no other circumstancment and the intention to abandon. The es to show the intent to abandon the propcourt below evidently made its finding upon erty, and there are indications that such this theory. In this we think it was in error. was not the intent. Indeed, it is not seriThe rule upon this subject is thus stated:ously claimed that there ever was, in fact, "As a general rule, in order to constitute an such intent. The payment of taxes could not abandonment of an easement in a right of way have been regularly made on these strips unby a railroad company there must be a nonuser accompanied by unequivocal and decisive acts on the part of the company, clearly showing an intention to abandon. * In the absence of a statute, mere nonuser for any length of time will not work an abandonment." 33 Cyc. 222. See, also, 1 Corpus Juris, 8. Our only statute bearing upon the subject is the fourth clause of section 811 of the Civil Code, declaring that a servitude which has been "acquired by enjoyment" is extinguished by "disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment." As this franchise was acquired by grant and not by enjoyment, this provision does not apply to it. The rule above stated is fully supported by the decisions in this state and elsewhere. Smith v. Worn, 93 Cal. 212, 28 Pac. 944; Home R. E. Co. v. Los Angeles P. Co., 163 less the defendants had included them in their annual statement describing them as parts of their right of way, as provided in section 3664 of the Political Code. This, it is admitted, was done. This alone is positive evidence of intention to retain these unused rights of way, and not to abandon them. The deal with Miner shows that defendants were diligently guarding the parcels against encroachments by others. The entire course of conduct concerning the spur along the harbor line tends to disprove the purpose to abandon it. We therefore conclude that the finding is contrary to the evidence. The judgment and order are reversed. We concur: ANGELLOTTI, C. J.; SLOSS, J.; HENSHAW, J.; MELVIN, J.; LAWLOR, J. (172 Cal. 663) TUCKER v. COOPER. (L. A. 3634.) (Supreme Court of California. June 6, 1916. Rehearing Denied July 5, 1916.) 1. DAMAGES 143-INJURIES TO SERVANT PLEADING. TO SERVANT-PLEADING. Allegations in the complaint that defendant, without the knowledge of plaintiff, replaced an oak doubletree in a hay press which plaintiff operated with a piece of pine wood, knowing that it was not of sufficient strength or size, or of such material to withstand the strain which In a servant's action for injuries, the fact would ordinarily be placed upon it, were suffithat plaintiff specifically alleged items of dam-cient to justify the inference of negligence, since age for medical expenses and loss of wages in it was the duty of defendant to provide reasonthe complaint does not preclude him from pray- ably safe appliances for the prosecution of the ing for judgment for the total damages suffered work plaintiff was performing, and an omission of which such items are a part. in that regard constituted negligence. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. 143.] 2. MASTER AND SERVANT 88(1)-RIGHT OF CONTROL BY MASTER-STATUTE "SERVANT." Under Civ. Code, § 2009, providing that a servant is one employed to render personal service, otherwise than in the pursuit of an independent calling, and who remains entirely under the control and direction of the employer or master, where the master has the right of control, it is not necessary that he actually exercise such control. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144, 151; Dec. Dig. 88(1). For other definitions, see Words and Phrases, 3. MASTER AND SERVANT 88(1) — INJURIES [Ed. Note.-For other cases, see Master and - 4. MASTER And Servant ~88(1) — INJURIES 5. MASTER AND SERVANT 258(9)—INJURIES In a servant's action for injuries, caused by the breaking of a pine doubletree substituted by defendant for an oak doubletree in the hay press which plaintiff was operating, an allegation in the complaint that defendant either knew, or in the exercise of ordinary care should have known, that the piece of pine wood was not strong enough or fitted for such purpose, was sufficient to present the issue. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 832; Dec. Dig. 258 (17).] Department 1. Appeal from Superior Court, Los Angeles County; S. E. Crow, Judge. Action by George C. Tucker against Samuel Cooper. and from an order denying a motion for new From a judgment for plaintiff, trial, defendant appeals. Affirmed. Edward J. Dennison, of Los Angeles, for appellant. B. P. Welch and J. R. Jaffray, both of Los Angeles, for respondent. LAWLOR, J. The plaintiff brought this action to recover damages for personal injuries alleged to be due to the negligence of defendant. The case was tried before the court sitting without a jury, and judgment rendered for the plaintiff. The defendant appeals from the judgment and the order denying his motion for a new trial. The complaint alleges, in substance, that plaintiff was engaged at the special request of defendant in assisting him in baling hay with a hay press supplied by defendant; that in the course of such employment he drove the team of horses which furnished power to operate the hay press; that a short time prior to the accident, and without the knowledge of the plaintiff, the defendant reTo Servant-PLEADING-NEGLIGENCE. placed an oak doubletree with a piece of In a servant's action for injuries, statements in the complaint that defendant had re- pine wood, which was attached to and thereplaced an oak doubletree with a pine doubletree by became a part of the press; that about in a hay press with which plaintiff was engaged 10 or 15 minutes after the substitution had in baling hay, and that shortly after while the been made, and while the team was pulling, team was pulling, causing a great strain, the and the sweep was in a condition of "great piece of pine wood broke, releasing the sweep, which struck plaintiff, alleges in sequence a se- strain," the piece of pine wood broke and reries of facts and circumstances sufficient to es- leased the sweep, which rebounded and tablish the causation between the negligent act of defendant and the injury to plaintiff. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 823; Dec. Dig. m 258(9).] sprang back with great force, and struck plaintiff, fracturing his right leg in three places, and causing the injuries complained of; and that plaintiff was driving the team For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2-4] 2. At the close of the plaintiff's case the defendant moved for a nonsuit upon the ground that the relationship of master and servant had not been established. The court denied the motion upon the basis of a stipulation which had been filed in the action by the parties herein. The terms of the stipulation material to this point read as follows: in full reliance upon defendant having fur- | entering into the damage are formally alnished "an ordinarily safe doubletree." It is leged in the complaint does not preclude the also alleged that the piece of pine wood was plaintiff from praying for judgment for the not of sufficient strength or size or of such total damages suffered, of which such items material to withstand the strain which is are a part. Moreover, the defendant did not ordinarily placed upon a doubletree in the take advantage of the point by demurrer. prosecution of such work; "that a double- Riser v. Walton, supra; Bacigalupi et al. tree of oak is proper"; and that the de- v. Phoenix Bldg. etc. Co. et al., 14 Cal. App. fendant either knew, or in the exercise of 632, 112 Pac. 892. Nor do we think that ordinary care should have known, that the there is any merit in defendant's contention piece of pine wood was not strong enough that the finding on this issue is not supportor fitted for such purpose. It is further al-ed by the evidence. leged that the plaintiff incurred as necessary medical and hospital expenses upwards of $600; that he lost in wages at least $500, and, in addition, "suffered great pain and deprivation by reason of said injuries." In the prayer of the complaint plaintiff asks for judgment for damages in the sum of $10, 000, and costs. The defendant demurred to the complaint on general grounds, and upon the special ground that the complaint shows that the plaintiff was "acting as a mere volunteer in doing certain employment upon the farm." The demurrer was overruled, and the defendant filed an answer denying that the plaintiff was engaged at his special request, and that he was without knowledge of the substitution of the pine wood for the oak doubletree. The court's findings were in accord with the foregoing facts as they appeared in the complaint, and judgment was rendered for the plaintiff in the sum of $2,997, and costs. [1] 1. The first point relied upon by the defendant is the alleged error of the court in rendering judgment for a sum in excess of $997, the amount which was found to represent the actual loss of wages and medical and hospital expenses. The defendant contends that, notwithstanding the complaint sets out in detail the compound fracture of the bones of the leg, and the suffering and pain caused thereby, and prays for judgment in the sum of $10,000, there is no issue tendered in the pleadings of any sum of money in excess of the $1,100, the amount specially pleaded by the plaintiff as the actual expenses and loss of wages. A similar question was discussed in Riser v. Walton, 78 Cal. 490, 21 Pac. 362, where the court said: "The complaint states facts sufficient to sustain a judgment for damages, and, while it does not contain a formal allegation of the amount of damages sustained by plaintiff, it concludes with a prayer for judgment for $1,400, and costs. We think that the equivalent of a statement of the amount of damage which he had sustained." In 5 Encl. of Pl. & Pr. p. 710, note 2, it is said: "On or about August 4, 1912, each having hay to be baled, plaintiff and defendant agreed that plaintiff would assist defendant in baling dewith a hay press supplied by defendant, and in fendant's hay on the farm of Mrs. Mary Cooper, return for such services defendant would assist plaintiff and use said hay press to bale hay for plaintiff on a nearby farm. It appears that said parties are cousins." There was no other evidence introduced regarding this issue. The defendant contends that the facts set forth in the stipulation are not sufficient to show the alleged relationship, as it does not appear that the plaintiff represented the will of the defendant as to the mode and manner in which he would assist the defendant in accomplishing the work, and that, at most, the facts show that plaintiff was merely representing the defendant's will as to the general result sought to be obtained. The authorities relied upon by the defendant, however, are all cases involving the principle applying between persons and independent contractors, or the servants of independent contractors, and are not in point here. Section 2009 of the Civil Code provides: "A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master." But, where the defendant has the right of control, it is not necessary that he actually exercise such control. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Giacomini v. Pacific Lumber Co., 5 Cal. App. 218, 89 Pac. 1059. Nor is it material to such rela tionship that the servant does not receive pecuniary compensation. See Labatt's Mas"The controlling claim for damage is contain-ter and Servant (2d Ed.) vol. 1, p. 60; Bared in the prayer for judgment, and will obviate stow v. Old Colony R. R. Co., 143 Mass. 535, the necessity of stating the amount elsewhere 10 N. E. 255; Union Ry., etc., Co. v. Kallain the complaint." See, also, Barr v. Southern Cal. Edison Co., 24 Cal. App. 22, 140 Pac. 47; Bank of British Columbia, etc., V. City of Port Townsend, 16 Wash. 450, 47 Pac. 896; 13 her, 114 Ill. 325, 2 N. E. 77. An implication arises from the terms of the stipulation that the plaintiff was subject to the control and direction of the defendant in the prosecution of the work, while the plaintiff's services |