ÆäÀÌÁö À̹ÌÁö
PDF
ePub

is not, without a statutory provision to that, as to obstruct any public highway; and evend, thrown upon the owner of the land or ery person or corporation owning, maintainthe one who has lawfully and properly ing, operating or using any such canal, crosschanged its original condition. City of Den- ing or running along any public highway, ver v. Mullen, 7 Colo. 345, 3 Pac. 693. must construct, maintain, and keep in repair Whether or not the Legislature may con- such bridges across the same as may be necstitutionally impose upon those who have essary to the safe and convenient use of acquired the right to so conduct water the such highway by the public. If the first part burden of constructing and maintaining of the section did not contain the word across their ditch or other conduit suitable “maintain”—that is to say, if it provided bridges or other crossings over public roads that no canal must be so laid out or conthat may be subsequently established is a structed as to obstruct any public highwayquestion much discussed in the briefs. Most there would seem to be little room for the of the cases cited on either side deal with contention that the Legislature intended to regulations requiring railroads to provide impose upon the owner of the canal or other suitable crossings wherever public highways appliance for conducting water, the duty of may intersect the right of way. The decided | bridging highways subsequently laid out. weight of authority favors the view that We do not think the use of the word “mainsuch requirements may, in the exercise of the police power, be applied to highways established after the construction of the railway. State v. Dist. Ct., 42 Minn. 247, 44 N. W. 7, 7 L. R. A. 121; State v. St. Paul, etc., Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, and cases cited. There is no such perfect analogy between a railroad and a water conduit that considerations affecting the one can for all purposes be safely applied to the other. Whether a statute having the effect which the appellant attributes to section 551 would be valid is a question that is not necessarily answered by a reference to the rulings on enactments governing railroad crossings. But, as we have intimated, our view of the meaning of this section is such as to make it unnecessary to consider this question.

tain" is sufficient to justify a change in this construction. This word can be given complete effectiveness by making it refer to the duty of the owners with regard to highways existing at the time the canal was constructed. A canal might, in the first instance, be so laid out as not to obstruct an existing highway. It might thereafter, however, get into such condition as to obstruct a highway crossing it. For example, the flow of water might leave deposits in the bed of the canal and so raise the surface of the water so as to impede the use of the highway. The flow of water might be increased so as to make necessary a bridge over a canal or ditch which could theretofore have been forded without danger or inconvenience. The banks of the ditch might be allowed to fall into disrepair. In such cases the public would not be protected in the use of its highway by a mere requirement that the ditch should not be laid or constructed so as to obstruct the highway. The prohibition against "maintaining" it in such manner as not to create an obstruction is necessary to protect the public in the possession of the rights which it enjoyed when the ditch was originally laid out. So limiting the operation of the section to existing highways, a natural and reasonable construction is given to its terms, and every provision contained in it is given due effect.

Before passing to a discussion of the interpretation of section 551, we may remark that we shall not here review the various decisions to which we have been cited on the proper construction of statutes requiring railroad or canal companies to construct crossings where the railroad or canal intersects a public highway. Most of the cases dealing with railroads lend some support to the appellant's contention. On the other hand, statutes relating to canals have more often been read as referring only to highways existing when the canal was constructed. This may be due in part to the difference in the Section 551 was amended and enacted in subject-matter. Whatever may be the just its present form in 1905. Theretofore, it view of the relation between public high- | read “every water or canal corporation must ways and railroads, there would seem to be, construct and keep in good repair, at all in natural justice and equity, no compelling times, for public use, across their canal, reason why the owners of canals or ditches flume or water pipe, all of the bridges that should be burdened with the obligation of the board of supervisors of the county in constructing bridges to enable the public to which such canal is situated may require, cross on the line of a road or street that the bridges being on the lines of public highmay, at any future time, be laid out. How- ways and necessary for public uses in conever this may be, so much depends upon the nection with such highways." This section, peculiar phraseology employed in each case which was a part of the original Code, was that we cannot, in reading our own statute, based upon various prior statutory provi- · derive much help from the views expressed sions (St. 1862, p. 541; St. 1869, 1870, p. by other courts in dealing with different 660; St. 1871, 1872, p. 732). It is argued statutes. by the appellant that these prior enactments

[2] Section 551 provides that no canal plainly showed an intent to require corpora

We concur: ANGELLOTTI, J.; MELVIN, J.; LORIGAN, J.; HENSHAW, J.

(15 Cal. App. 766)

EGAN v. SOUTHERN PAC. CO. (Civ. 924.)
(District Court of Appeal, Second District,
California. April 3, 1911. Rehearing De-
nied by Supreme Court June 2, 1911.)
1. APPEAL AND ERROR (§ 1001*)-REVIEW-
VERDICT-CONCLUSIVENESS.
A verdict will not be disturbed on appeal
if there is any evidence to support it.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3928; Dec. Dig. § 1001.*1 2. MASTER AND SERVANT (§ 137*)—INJURIES

TO EMPLOYÉS ON TRACK-LOOKOUT.

Where laborers were working on a railroad track, it was negligence for those in charge of a train which was upon a grade above them fireman to see the track to let it down by force where it was impossible for the engineer or of gravity upon the laborers without warning and without a lookout on the rear.

[Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. § 274; Dec. Dig. § 137.*1
3. MASTER AND SERVANT (§ 236*)—INJURIES
ΤΟ EMPLOYÉ ON TRACK-CONTRIBUTORY

NEGLIGENCE.

es over the same on the line of public high- | duit, should undertake to lay out a new road ways, whether the highways existed at the across the water conduit. This being so, the time the ditch was laid out or were there- complaint stated no cause of action, and the after opened, and that it is not to be presum- demurrer was rightly sustained. ed that the Legislature intended to change a The judgment is affirmed. policy that had existed for almost half a century. But we think the argument is based upon insufficient premises. It is by no means clear, and it has never been held, that the prior statutes should be so construed as to apply to highways not in existence at the time of the construction of the ditch or canal, and there are strong reasons for holding that they should not be so construed. This view of the meaning of section 551 and its predecessors is fortified by a consideration of other Code provisions. Section 2694 of the Political Code provides that "whenever highways are laid out to cross railroads, canals, or ditches, on public lands, the owners or corporations using the same must, at their own expense, so prepare their roads, canals, or ditches that the public highway may cross the same without danger or delay. And when the right of way for a public highway is obtained through the judgment of any court over any railroad, canal, or ditch, no damages must be awarded for the simple right to cross the same." Here is an enactment dealing specifically with highways laid out after the construction of a canal, ditch, etc. The first sentence of this section has reference only to crossings upon public lands, and its operation and effect have only an incidental bearing upon the present discussion. The second sentence, however, is not so limited, and the plain implication from the language used is that while the railroad, canal, or ditch is subject to crossing by a public road without any compensation for the mere right to cross, the further burden of constructing a bridge or other necessary crossing is not imposed upon the owner of such railroad, canal or ditch, but rests upon the public agency constructing the highway. Section 2737 of the Political Code, too, is in point. See County of Fresno v. Canal Co., 68 Cal. 359, 9 Pac. 309. It contains provisions for bridging ditches which cross public highways, and puts the expense of such bridges upon the person constructing the ditches. The language of this part of the section seems to have reference only to ditches constructed across pre-existing highways, and even in such cases the supervisors are given authority, with the consent of the owners of ditches, to declare such bridges to be public property of the county, and to main-enced track laborer, was employed by detain them at the expense of the county. fendant and engaged at the time of the acReading all these sections together, we think cident as a member of a gang repairing dethe respondent is right in its contention that fendant's roadbed at a point near a siding. the Legislature did not intend to impose up- Upon the siding at the time of the accident on the owners of ditches or other artificial was a gravel train. A water train of 10 or conduits of water the duty of bridging the 12 cars approached the siding, and, when same whenever the public, after the con- some 400 feet therefrom, the water train struction of the canal, ditch or other con- was cut in two, and the engine and five or For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Where a laborer on a railroad right of way, upon seeing that a train, which had passed, had stopped some distance away. went back to work, standing outside the rails and not looking at the train again, he was not guilty of contributory negligence, precluding recovery for injuries occasioned by the negligence of those in charge of the train in backing it down upon him without warning, as he had a right to assume that the train would not be backed without warning.

Servant, Cent. Dig. §§ 739, 740; Dec. Dig. § [Ed. Note.-For other cases, see Master and 236.*]

Appeal from Superior Court, Los Angeles County; W. R. Hervey, Judge.

Action by Martin Egan against the Southern Pacific Company. From a judgment for plaintiff and an order dneying a new trial, defendant appeals. Affirmed.

J. W. McKinley and D. C. McGarvin, for appellant. Morton, Riddle & Hollzer, for respondent.

ALLEN, P. J. The action was one by a laborer in defendant's employ for the recovery of damages on account of personal injuries. The plaintiff, an old and experi

is warranted in backing a train, as was done in this instance, without warning and without having any one upon the rear end to observe necessity for warning where, as in this case, it was not possible for the engineer or fireman to see who or what was upon the track over which they were seeking to back the train. It was a negligent operation of the train approaching wantonness.

[3] Nor do we believe that the record discloses contributory negligence upon the part of plaintiff. It cannot be disputed that one familiar with the dangers connected with an employment as a general rule assumes the risks incident thereto, and that a railroad track upon which trains are run is itself a warning to persons of discretion and intelligence of its dangerous character and the necessity for the exercise of care in its

six cars were run up above the point where the siding intersected the main track. The main track was constructed on a 1 per cent. grade from the point where the water train first stopped to and above the siding. The engineer in charge of the water train, when moving up the grade, noticed and saw the men engaged in work upon the track. After the engine with these cars had proceeded up the track to a point above the intersection of the switch with the main track, one of the water cars was detached and under the charge of a brakeman was run down by gravity below the point of the switch, where it was taken up by the engine of the gravel train and attached thereto. While this car was being disposed of, plaintiff discontinued his work upon the track. After the car was taken up by the gravel train engine, plaintiff looked up the track and saw the engine with the four or five remaining cars stand-use. Applying these rules to plaintiff, howing motionless, no one being in sight, except the fireman, who was sitting in the cab door with his feet upon the steps. Plaintiff then resumed his work, standing outside the main track, but with a pick endeavoring to remove stones and earth supporting the ties upon which the rails were laid. While thus engaged in work those in charge of the engine and water cars above plaintiff, without any warning or signal, backed the same down the track, and by reason of the grade no indication of their approach was observed by plaintiff, and no one was upon the rear end of the train thus being backed down to give any warning, nor was any warning given by any one of the approach of the train by bell, whistle, or otherwise. The result was that plaintiff was struck by the rear car thus being backed down and seriously injured. Had plaintiff been apprised of the approach of the train, a. single step backward would have removed him from the place of danger. Evidence is in the record tending to establish all of the foregoing facts. A verdict was returned in favor of plaintiff and a judgment rendered thereon, from which judgment and an order denying a new trial defendant appeals.

ever, it is clearly shown that he did look and saw a motionless train a distance from him upon the main track. There was nothing to indicate an intention of immediate action upon the part of those in charge. Plaintiff was there to work, and to this work it was his duty to give attention. Having first exercised his sense of sight and no immiuent danger being evident, it was his duty to resume work, and he was rightfully upon the track. If it be said that it is the duty of one thus employed to be constantly exercising his sense of sight, it is the equivalent of saying that he must not work when a train is standing upon the track above him, for he could not work and at the same time observe the approach of the train. One thus employed upon the track occupies a very different position from the pedestrian or stranger entering upon the track and using the same as a thoroughfare or seeking to cross the same. In both instances care and the exercise of the senses are required before entering upon the place of danger, but the duty which devolves upon the one to continue the exercise of his sense of sight should not be held to devolve with the same strictness upon the other employed by the

But two questions are presented by appel- railroad company to work upon such track. lant.

[1] The first is a contention that the testimony shows no negligence on defendant's part; and, second, that contributory negligence is shown on the part of plaintiff sufficient to preclude his recovery. Both of these matters were of necessity resolved against appellant by the jury in reaching its verdict, and both are questions of fact, and should not be disturbed if there is any evidence in their support. We are of opinion that under the circumstances connected with the operation of this train negligence was clearly shown. [2] It cannot be said that one in charge of the operation of a railroad train, with knowledge that persons are em

Plaintiff, being rightfully upon the track and in the performance of a duty enjoined upon him by the defendant in the exercise of an employment upon said track, had a right to assume that the train would not be backed down upon him without warning, and it should not be said that he contributed to his own injury in the doing of that which his employment required that he should do. Morgan v. Robinson Co., 157 Cal. 348, 107 Pac. 695. The evidence supported the findings implied by the verdict, and we see no error in the action of the court denying a new trial.

Judgment and order affirmed.

(16 Cal. App. 1)

SHAW v. CALDWELL et al. (Civ. 807.) (District Court of Appeal, Third District, California. April 3, 1911. Rehearing Denied by Supreme Court June 1, 1911.) 1. MINES AND MINERALS (§ 55*)-CONVEYANCE

-DEED-CONSTRUCTION-"MAY."

A bargain and sale deed to a half interest in a mine in consideration of $1 and the doing of necessary assessment work to hold the claim at the grantees' expense also provided that the grantees might work and develop the mine at their own cost, and that all gold or proceeds taken therefrom for 20 years should be divided equally among the parties; that is, each to have one-third thereof. Held, that the provision for working the mine apart from the doing of the assessment work was a mere license to be exercised by the grantees, or not, at their election; the word "may" not being construed to mean "must." [Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 160; Dec. Dig. § 55.* For other definitions, see Words and Phrases, vol. 5, pp. 4418-4447; vol. 8, p. 7719.]

2. MINES AND MINERALS (§ 55*)-CONVEYANCE -CONSTRUCTION-CONDUCT OF PARTIES.

The conduct of the parties to a conveyance of an interest in a mine treating a provision of the deed as an optional license to the grantees to work the mine on shares and not as obliging them to do so will be given effect by the courts in construing the provision in the deed, the terms of which indicate such intention.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 160; Dec. Dig. § 55.*] 3. MINES AND MINERALS (§ 55*)-CONVEYANCES LIMITATIONS CONDITION SUBSEQUENT.

-

A conveyance of an interest in a mining claim provided that the grantor did grant, bargain, and sell unto the grantees an undivided half interest in the premises for a consideration of $1, and the required assessment work to be done by the grantees at their own expense. Held, that a subsequent provision that the grantees might work the mine at their own expense, the grantor and grantees sharing equally in the proceeds, was neither a condition subsequent, being no part of the consideration for the deed, nor a limitation on the grantees' estate in the premises.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 159-161; Dec. Dig. § 55.*]

4. LICENSES (§ 44*)—WHAT CONSTITUTES— "LEASE" DISTINGUISHED.

A license in respect to real estate is an authority to do a particular act or series of acts on the land of another without possessing an estate therein. The test to determine whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive use of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, the question to be determined by a construction of the instrument.

[Ed. Note. For other cases, see Licenses, Cent. Dig. § 98; Dec. Dig. § 44.*

For other definitions, see Words and Phrases, vol. 5, pp. 4043-4049; vol. 8, pp. 7702, 7703; vol. 5, pp. 4133-4141; vol. 8, p. 7706.] 5. MINES AND MINERALS (§ 84*)-LICENSEREVOCATION.

Where a deed to an interest in a mine contained a provision that the grantees might work the mine on shares, the grantor was entitled to his share of the proceeds in case the grantees

elected to work the mine under their license, which, so far as the grantor's remaining interest was concerned, was revocable at his pleasure. being a mere personal privilege, and not a covenant running with the land.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 213; Dec. Dig. § 84.*] 6. LICENSES (§ 58*)-CREATION-REVOCATION. A license, being a mere personal privilege, is revocable at the will of the licensor, whether created by deed or other written instrument. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 116-120; Dec. Dig. § 58.*] 7. MINES AND MINERALS (§ 84*)-LICENSEREVOCATION-CONVEYANCE TO ANOTHER.

Where the owner of a mine conveyed an interest therein and provided in the deed that the grantees might work the mine on shares at their option, the license so acquired by the granin the mine was concerned, being a personal tees in so far as the owner's remaining interest privilege, was revoked by a subsequent conveyance of such remaining interest to another.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 213; Dec. Dig. § 84.*] 8. ESTOPPEL (§ 23*) DEED WARRANTY AGAINST INCUMBRANCE-EFFECT.

Where the owner of a mine having conveyed a half interest therein conveyed his remaining interest, and warranted by his deed that he had not conveyed any interest in his part of the property to any one and had not suffered any incumbrance to attach thereto, he could not thereafter claim that he had previously given the grantees in his first deed the right to the exclusive possession of the whole mine for a term of 20 years by a provision in their deed authorizing them to work the mine on shares. [Ed. Note.--For other cases, see Estoppel, Cent. Dig. §§ 52-60; Dec. Dig. § 23.*] 9. ESTOPPEL (§ 23*)-DEED-RESERVATION— RIGHTS OF GRANTOR.

Where a mineowner conveyed his remaining interest by a warranty deed reciting that he did grant, etc., all his interest, the same being a one-half undivided interest in and to the property, but, in addition, specified that it included all the dips, spurs, and angles, and all the metals, ores, gold and silver bearing rock and earth therein, and all rights, privileges, and franchises thereto belonging, and the rents, issues, and profits thereof, he could not thereafter assert that he was still the owner of an interest in the property by an alleged reservation in a former deed to the other half of the property by which the grantees in that deed were authorized to work the mine on shares.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 52-60; Dec. Dig. § 23.*]

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Action by Herbert Shaw against E. F. Caldwell and others. Judgment for plaintiff, and defendants E. F. Caldwell and Martha Caldwell appeal. Reversed.

J. C. Webster, for appellants. J. B. Curtin, for respondent,

BURNETT, J. On February 5, 1904, plaintiff was the owner of the Hunter Creek mine. On said date, by a grant, bargain, and sale deed, he conveyed to E. Caldwell and E. F. Caldwell "an undivided onehalf interest in and to" said mine. It is recited in said deed that it was "for and in consideration of one dollar to him in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

hand paid by the parties of the second part," | ance to Armstrong. This seems to be in enand also "it being one of the considerations tire accord with the natural and ordinary of this conveyance that said parties of the signification of the terms employed. It is second part will, during the period in which to be observed that the agreement is "that the party of the first part shall be the owner the parties of the second part may work and of the remaining one-half of said mine, do develop said mine at their own cost and exand perform at their own cost and expense pense." More apt words could hardly have all work required to be done upon said been selected to empower the parties of the mine in order to comply with the provisions second part to exercise a choice in the matof section 2324 of the Revised Statutes of ter. It is not made imperative, and there is no the United States, and, should they fail at agreement on their part that they will work any time so to do, then the party of the first the mine at their own expense. The only part shall be entitled to have said one-half obligation imposed upon them is that coninterest in said mine as hereby conveyed, cerning the division of the proceeds as aforereconveyed to him, and the parties of the said in case they exercise their discretion second part shall thereafter have no interest to so develop the mine. It is true that "may" in said mine." The deed likewise contained is sometimes construed as "must," but this is this clause: "It is furthermore, agreed that only for the purpose of effectuating the inthe parties of the second part may work and tention of the parties. There does not apdevelop said mine at their own cost and ex- pear to be any reason why we should depart pense and all gold or proceeds taken there- here from the ordinary meaning of the from for a period of twenty years from date terms employed. hereof shall be divided equally among the parties hereto, that is to say, each party hereto shall have one-third of said proceeds." On the 24th day of January, 1906, for a consideration of $100, plaintiff sold and conveyed to one Thomas Armstrong "all of his right, title and interest, same being a one-half undivided interest, of, in and to" said mine, and, prior to the beginning of this action defendant, D. J. Sutton, by mesne conveyances, had succeeded to this interest. On the 28th day of July, 1906, the said E. Caldwell conveyed all of his interest in said property to defendant Martha Caldwell. No gold was taken out of th. mine until after the conveyance by plaintiff to Armstrong as aforesaid, and the action was brought to recover one-third of the proceeds of the development of the mine from and subsequent to July 30, 1906. The court found that the said agreement as to the division of the proceeds of the mine is still in full force and effect, and that "plaintiff is entitled to have paid over to him by defendants E. F. Caldwell and Martha Caldwell one-third of all gold and proceeds derived from operating and working the mine for a period of 20 years from and after the 5th day of February, 1904," and, upon an account taken, it was determined that at the time of the trial there was due, under this agreement, the sum of $72.30, for which amount judgment was entered for plaintiff. From this judgment, the appeal is taken by defendants E. F. Caldwell and Martha Caldwell.

1

[2] On the other hand, several circumstances seem to concur in support of the natural interpretation of the language found in said agreement. One of these circumstances is the conduct of the parties themselves. Admittedly for two years no effect was given to this provision. Plaintiff worked the mine, in connection with the other parties to the agreement, and there seems to have been no contention that the latter were required to operate it at their own expense. In other words, the parties, by their actions, interpreted the contract as permissive merely. Again, the only other possible view of the provision is that it was intended as a part of the consideration for the conveyance of one-half of the mine to said parties, or that it constitutes a limitation upon the estate conveyed to the latter.

[3] As to the former contention, it may be said that there is nothing in the deed itself to show that it was a part of the consideration, and it seems unreasonable to conclude that it should be so held. Indeed, the consideration is mentioned expressly as $1 and the assessment work to be done by the grantees. Thereby, in accordance with a familiar rule of construction, must the provision before us be deemed no part of the consideration for said conveyance. Furthermore, it may be urged that the performance of the assessment work seems to have been sufficient compensation for one-half of the mine, and it may be added that, since the grantees were entitled to one-half of the proceeds by virtue of the said conveyance, the additional award of one-sixth could hardly have been considered more than sufficient to reimburse them for the labor and expense of the development of plaintiff's portion of the mine.

[1] The decisive factor in the case is the construction of said agreement as to the development of the mine and the division of the proceeds. By appellants it is contended that this constitutes a mere permission or license to work the property at their own Likewise, we fail to see anything in the expense, which might be exercised or not language used or the surrounding circumby the Caldwells, and which was in fact stances to indicate any purpose to impose never exercised until it was revoked by the any condition upon the estate conveyed to

« ÀÌÀü°è¼Ó »