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5. It is not necessary that a railroad cor poration, in order to obtain a right to maintain wharves as a part of its road, should first obtain a wharf franchise in pursuance of sections 528 to 531, inclusive, and section 2921 of the Political Code.—' Vallejo & N. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.
branches. - People v. Southern Pacific Co., 172 Cal. 692, 158 Pac. 177.
5. -Purpose of section.-The main object of this section is to provide for a forfeiture of the right to operate a railroad, in case of failure to keep it in "full operation.” It was not intended to apply and has no application to the determination of whether or not the property of a railroad or other public service corporation is "operative" within the meaning of section 14 of article XIII of the constitution and the act of April 1, 1911 (Stats. 1911, p. 530). The clause merely defines what shall be deemed "full operation" sufficient to escape forfeiture.---San Diego & Ariz. R. Co. v. State Board, 165 Cal. 560, 132 Pac. 1044.
1. Electric railroads.In their principal essentials, electric railroads now have the same legal status as steam railroads.-Los Angeles v. Los Angeles Pac. Co., 31 Cal. App. 100, 159 Pac. 992.
1. Construction. — Compliance with the requirement of making a map and profile and filing the same is not a condition precedent to the exercise of the right of eminent domain.-Northwestern Pac. R. Co. v. Lambert, 166 Cal. 749, 137 Pac. 1116.
1. Construction, — This section qualifies and limits subdivision 5 of section 465.— San Pedro, L. A. & S. L. R. Co. v. Long Beach, 172 Cal. 631, 158 Pac. 204.
§ 473. 1. Forfeiture of franchise Construction.
1. Construction.—There is nothing herein -The term "road" was intended to include to indicate an intention to change the law the main line and all branches of the rail- in holding that the term "road" as used road company, and this applies both to in section 468 included the main line and all original' and to consolidated companies. branches of both the original and consolThere is nothing in section 473 as amended idated railroad companies. — Northwestern in 1901 to indicate an intention to change Pac. R. Co. v. Lambert, 166 Cal. 749, 137 Pac.
1116. this.-Northwestern Pac. R. Co. v. Lambert, 166 Cal. 749, 137 Pac. 1116. 2. The purpose of this section is to se
$ 474. cure the due completion and full operation
1. Construction. The words "swamp, of the road from one end to the other and overflowed, or other public lands of the
of the intermediate branches and the state" include tide lands and submerged first sentence thereof does not apply to
lands.-People v. Southern Pac. Co., 172 Cal. the construction of tracks over land subse
692, 158 Pac. 177. quently acquired at a terminus to increase
2. The grant made by this section is a its facilities and ability to accommodate direct grant to each company accepting it. the traffic.—People v. Southern Pacific Co., It is general and unlocated, but becomes de172 Cal. 692, 158 Pac. 177.
fined and complete when the corporation 3. Section 468 of the Civil Code, which selects the land, files a plat thereof, records provides that "every railroad corporation
the selection and it is approved by the surmust, within two years after filing its origi
veyor-general, and his permit to use the nal articles of incorporation, begin the con
same is duly issued to the corporation. This struction of its road, and must every year
permit together with the statutory grant thereafter complete and put in full opera
give the grantees an easement or franchise tion at least five miles of its road, until the
over the land described for the use of the same is fully completed; and upon its fail
corporation and for all necessary adjuncts ure so to do, for the period of one year,
thereon.—People v. Southern Pac. Co., 172 its right to extend its road beyond the
Cal. 692, 158 Pac. 177. point then completed is forfeited,” has no logical relation to the construction of
§ 483. tracks over lands subsequently acquired at 1. Construction.-Under the provisions of one terminus for the purpose of increasing section 510 this section governs the duty its facilities and capacity to accommodate of street railroad companies.-Kelly v. Santa the traffic to be handled at that end of the Barbara Consol. R. Co., 171 Cal. 415, 153 line.—People v. Southern Pacific Co., 172 Pac. 903. Cal. 692, 158 Pac. 177.
2. Greater precaution necessary when 4. Such code provision refers to the orig. passenger obliged to ride on steps.—Where inal articles of incorporation, which are a passenger on a street-car is obliged, by provided for in section 291 of the Civil Code, reason of the crowded condition, to ride and its purpose is to secure the performance upon the step of the car, a new contract of the promise implied from the part of and relationship springs into existence bethe articles requiring due completion and tween him and the carrier, making it incumfull operation of the road from one end bent upon the former to take greater preto the other and also of the intermediate cautions for his own safety, and upon the
latter to use greater precautions in the railroad or other utility in the street is to be operation of the car.–Kelly v. Santa Bar- strictly construed, and, in cases of a fair bara Consol. R. Co., 171 Cal. 415, 153 Pac. doubt, in favor of the public as against those 903.
claiming under the grant.-City of Sacra
mento v. Pacific Gas & Electric Co., 173 Cal. $ 485.
787, 161 Pac. 978. 1. Duty to fence-Killing of stock.-The provisions of section 485 of the Civil Code
$ 498. as that section existed prior to the amend
1. Construction.-Section 20 of the Vrooment of 1915, that railroad corporations
man Act should be read in connection with must make and maintain a good and sufi this section.-Barber Asphalt Pav, Co. v.
fence on either side or both sides of Jurgens, 170 Cal. 273, 149 Pac. 560. their track and property, and that in case they do not do so, if their engine or cars 8 501. shall kill or maim any cattle or other domes
1. Rates of fare-Construction of amendtic animals upon their line of road which passes through or along the property thereof,
ment of 1903.-The act of 1878 limiting and they must pay to the owner of such cattle
fixing the rates of fares on street railroads or other domestic animals a fair market in cities of more than 100,000 inhabitants price for the same, unless it occurred and providing a penalty for its violation, through the fault or neglect of the owner was superseded by the amendment of 1903 of the animal so killed or maimed, were not to section 501 of the Civil Code, which conintended to be for the benefit of owners sists in adding to the original section which of stock running at large, but the right of provided that the rates of fare should not action thereby given existed only in favor exceed ten cents for one fare for any disof one having some interest in the land tance under three miles, the words "and in adjoining the right of way of a railroad. municipal corporations of the first class Wills v. Southern Pac. Co., 31 Cal. App. 723, must not exceed five cents for each passen161 Pac. 501.
ger per trip of any distance in one direction, 2. The interest of a lessee in the land either going or coming, along any part constitutes a sufficient ownership under the of the whole length of the road or its constatute.-Wills y. Southern Pac. Co., 31 Cal. nections."-Suydam v. Los Angeles R. Co., . App. 723, 161 Pac. 501.
27 Cal. App. 157, 149 Pac. 55. 3. In an action against a railroad company for damages for the loss of certain $ 502. horses which were killed by collision with
1. Time for commencing and completing one of the defendant's trains, by reason
-Limitation by ordinance granting franof the negligence of the defendant in per
chise.—Where a municipal ordinance grantmitting the gate in its fence inclosing its
ing a street railway corporation a franchise right of way to be left open and the animals
to build and operate a railway along a certo stray upon the track, the right of the
tain route and fixes a shorter time for the plaintiff in or to the land on which she
commencement and completion than that was keeping the horses is not established,
fixed by this section, and which furthermore by proof that she leased the premises from
provides for the forfeiting of the franchise a third party, without any further proof that
as to the uncompleted portion, there is an such party owned the land or owned any
abandonment thereof in writing by the interest therein, or that he was in posses.
grantee and a consent by the city within sion of it, or that plaintiff obtained posses
the meaning of this section.—People v. Los sion through him.-Wills v. Southern Pac,
Angeles Ry. Co., 168 Cal. 406, 143 Pac. 739. Co., 31 Cal. App. 723, 161 Pac. 501. 4. An instruction “that the laws of this
§ 510. state require railroads to maintain fences beside their tracks, and if they make a gate
1. Construction.--Sections 483, 2102, 2184 in the fence, it is a part of the fence, and
and 2185 of the Civil Code, while for the when there is a road across their track most part having direct reference to "railwith a gate in the fence across it, they are
road corporations," by section 510 of the under the same duty to keep it in repair
Civil Code govern the duties of street railwhen erected as it is regarding any other
road companies "where applicable," and it part of the fence, and also it is their duty
can not be successfully argued that they to keep such gate closed at all proper occa
are not applicable to such companies.-Kelly sions to prevent stock from adjoining lands
v. Santa Barbara Consol. R. Co., 171 Cal. 415, from passing upon the right of way of
the right of way of 153 Pac. 903. said roadbed,” is erroneous, in that it imposes upon the defendant the absolute duty 88 528-531. to keep the gate closed, whereas in fact its 1. Construction. - Sections 528, 529, 530 only duty was to use reasonable care to and 531 are to be construed in connection keep it closed.-Wills v. Southern Pac. Co., with Title III relating to railroad corpora31 Cal. App. 723, 161 Pac. 501.
tions exclusively, and in which title section
465 is found. When so construed it is 497.
apparent these sections were not intended 1. Franchise Construction of.-A grant to apply to corporations formed for the of a franchise to construct and operate a purpose of constructing and operating rail
v. Soledad Land & W. Co., 170 Cal. 221, 149 Pac. 161.
roads.—Vallejo & N. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.
1. Construction. This section is no bar to a contract by a municipality for the purchase of a bulk supply of water for a period of ten years from a water company. The agreement can not violate that part of the section prohibiting the granting of an "exclusive right” because it does not contemplate the possibility of the town's future purchase of water from sources other than those owned by the water company.-Marin Water & P. Co. v. Sausalito, Town of, 168 Cal. 587, 143 Pac. 767.
1. Stockholder's right to inspect books, etc.—The examination which the stockholder is of right entitled to make under this section is the same examination for the refusal to allow him to make which the officers of the corporation become liable to the penalties of the succeeding section.-Symmes v. Sierra Nevada Min, Co., 171 Cal. 427, 153 Pac. 710.
2. Inasmuch as the purpose of the examination is to arrive at the value of the property he would be allowed the right to take samples of the ore even though the statute did not give him the right, as it expressly does in this case. — Symmes v. Sierra Nevada Min. Co., 171 Cal. 427, 153 Pac, 710.
1. Water for family use-Expenses incidental to dellvery.-The provisions herein giving power to prescribe rules for the delivery of water, make it the duty of the corporation to deliver the water, and the laying of water mains or pipe lines and the expenses thereof are an incidental to the delivery of water and can not be charged to the consumer.-Title Guarantee & Trust Co. v. Railroad Commission, 168 Cal. 295, Ann. Cas, 1916 A 738, 142 Pac. 878.
1. Water for Irrigation-Construction.-. Where the owner of land lying on the line and within the flow of the canal of a company furnishing water for irrigation has been furnished water from such canal for irrigation he is entitled hereunder to have the supply of water continued upon the established rates and terms.—Turner v. East Side. Canal & Irr. Co., 168 Cal. 103, 142 Pac. 69.
2. —Constitutionality.-Without deciding the constitutionality, the supreme court say: “We are satisfied that section 552 is constitutional. There is nothing to the claim that it is class legislation because it applies only to domestic corporations."-Franscioni
1. Penalty for refusal of right to inspect books or visit mine. The right to enforce such a penalty in the courts of this state against a corporation organized under the laws of this state is not affected by the fact that the properties of the corporation are located outside of the state. Symmes v. Sierra Nevada Min. Co., 171 Cal. 427, 153 Pac. 710.
2. A stockholder of a mining corporation has the right, under section 588 of the Civil Code, not only to make an inspection and examination of the properties of the corporation, but to take samples of the ore bodies therefrom, and where the permission to take samples is refused, he may recover the monetary penalty provided by section 589 of the Civil Code, and have imposed upon the Civil Code, and have im offending officer the additional penalties provided by such section, notwithstanding the latter section does not in terms provide a punishment for a failure to allow the taking of samples, and such taking does not come within the strict definition of inspection and examination.-Symmes v. Sierra Nevada Min. Co., 171 Cal. 427, 153 Pac. 710.
RELIGIOUS, SOCIAL, AND BENEVOLENT CORPORATIONS.
$ 604a. Formation of religious corporations. Directors. $ 594. INCORPORATION OF ASSOCIATIONS HAVING NO FIXED PLACE OF BUSINESS. Any association of this state mentioned in title twelve of part four of division first of the Civil Code made up of constituent or member clubs, or other subordinate bodies, having a common periodical or occasional convention or other general assemblage whether of members or delegates, and operating on the federation plan, whether state, district or otherwise, or having no fixed meeting place for such assemblages, or having no fixed office or principal place of business in any one county or city and county or for the meetings of its agencies or committees or officers, and which association determines such place or places from time to time through its agencies and according to its rules and customs, may incorporate under
the provisions of said title for purposes other than profit and without capital stock. The articles of incorporation upon there being therein stated any of the matters hereinabove mentioned inconsistent with any part or parts of section two hundred ninety of the Civil Code need not make, as to such inconsistent matters, the statements required by said section; but such articles shall be governed otherwise by said section and the rules of section six hundred three of said code as it now stands, except that the same officers who acted as such at the meeting authorizing the incorporation shall be the ones to execute the articles and that the word incorporation is to be deemed substituted for the word authority where the latter is used in said section; and provided, further, that it shall be immaterial whether such authorization is made after or before this section goes into effect if the proceedings show it to have been made in view thereof; and, further, that such articles of incorporation, shall set forth a means whereby its office and constitutional principal place of business, which must be in this state, as it exists from time to time, may be ascertained; or must state that same shall be provided by constitution or by-law; and, until such provision is otherwise made, said place shall be the place of business, or if none such the residence, from time to time, in this state of the chief executive officer of the corporation,
History: Original section, providing as to additional facts in an incorporation of religious etc. corporations, enacted March 21, 1872, founded upon $ 176, Act April 22, 1850, Stats. 1850, p. 374; as amended April 8, 1862, Stats. 1862, p. 125; and repealed May 1, 1911, Stats. and Amdts. 1911, p. 434; present section approved May 23, 1917, Stats, and Amdts. 1917, p. 830. In effect July 27, 1917.
8 604a. FORMATION OF RELIGIOUS CORPORATIONS. DIRECTORS. For the administration of the temporalities, and for the management of the property and estate of any church, diocese, synod, or district or other organization of such church, or for the administration of the temporalities, and for the management of the property and estate of any religious society or order, community, or other organi. zation of said religious society or order, any church, diocese, synod or other organization of such church, or any community or other council, or other organization of any such religious society or order, or of any community or other organization of such religious society or order, may elect directors and become an incorporation in the manner prescribed in this title, and with all the powers and duties and for the uses and purposes in this title provided for benevolent or religious incorporations, and subject to all the limitations and provisions in said title prescribed, except as otherwise provided in this section; provided, that directors of any such incorporation may be elected and by-laws for its government may be made and amended in accordance with the constitution, by-laws, discipline, rules and regulations of such church, diocese, synod, or district or other organization of such church, or in accordance with the constitution, by-laws, discipline, rules and regulations of such religious society or order, or of any community, or other organization of such religious society or order, at any meeting;
[Attesting of certificate of incorporation.] and provided, the certificate of incorporation and of the election of directors to be filed shall be sufficiently attested by the signatures of the presiding officer, president, or other head, and acting secretary of such church, diocese, synod, or other organization of such church, or of the community or other council or other organization of such society or order, and that the limitations of section five hundred ninety-five shall not apply to such corporations heretofore organized or formed, or hereafter organized under this section when land is held or used for churches, hospitals, schools, colleges, asylums, or parsonages.
[Powers.] Every such corporation heretofore organized or formed, or hereafter organized pursuant to the provisions of this section shall have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and may defend in all courts and places in all matters and proceedings whatsoever and shall have authority to borrow money, give promissory notes therefor, and secure the payment thereof by mortgage or other lien upon property real or personal, and may buy, sell, lease, mortgage and deal in real and personal property in the same manner that a natural person may, subject, however, to the provisions of section five hundred ninety-eight of this code; and may receive bequests and devises for its own use, or upon trusts, to the same extent as a natural person, subject, however, to the provisions of section one thousand three hundred thirteen of the Civil Code of the State of California and may appoint attorneys in fact.
History: Enactment approved June 10, 1913, Stats, and Amdts. 1913, p. 566; amended May 21, 1917, Stats, and Amdts. 1917, p. 784. In effect July 27, 1917.
BUILDING AND LOAN ASSOCIATIONS.
8 638. Security for loans. Interest. 8 638. SECURITY FOR LOANS. INTEREST. For every loan made a note or obligation, expressing and setting forth the exact rate of interest, must be executed by the borrower, secured by a first mortgage or deed of trust upon unencumbered real estate having an appraised value of not less than twenty-five per cent in excess of the face of the loan, except such loans as may be made upon the security of bonds specified in section six hundred forty-seven; or in lieu of a mortgage or deed of trust, loans to the extent of not exceeding ninety per cent of the then withdrawable value, may be made upon the pledge of free shares or certificates as security for their repayment. The board of directors may from time to time fix the rate of interest to be charged on loans. A borrower may at any time repay his loan together with interest or arrears due thereon and upon the surrender of the shares, or certificate pledged as security therefor.
History: Original section providing rate of interest on a security for loans, approved March 31, 1891, Stats.' and Amdts. 1891, p. 255; amended February 25, 1897, Stats, and Amdts. 1897, p. 30; March 11, 1901, Stats, and Amdts. 1900-1, p. 268; repealed and present section approved March 23, 1907, Stats, and Amdts. 1907, p. 926, Kerr's Stats. and Amdts. 1906-7, p. 419; June 10, 1913, Stats and Amdts. 1913, p. 551; amended May 21, 1917, Stats, and Amdts. 1917, p. 780. In effect July 27, 1917.
1. Joint tenancy in personal property. Personal property may be held in joint tenancy as well as real property.-Estate of Harris, 169 Cal. 725, 147 Pac. 967.
2. "A joint tenancy in personal property may be created by an oral agreement by which the title to the property is transferred to two persons as joint tenants.”—Estate of Harris, 169 Cal. 725, 147 Pac. 967.
For other cases on joint tenancy, see Biennial 1915, C. C. Pt., $ 761.
1. Restraint on marriage-In will. Where a testator by the first clause of his will gives all his estate to his wife, and then provides that "should she wish to marrie agane then seventy-five per cent of the hole amount at my death will go to my children," he thereby imposes a condition in restraint of marriage which renders the proviso void under section 710 of the Civil Code.—Estate of Scott, 170 Cal. 65, 148 Pac. 221.
1. Tenancy in common.--A deed to two persons presumptively conveys to each an undivided half interest as tenants in common.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545.
For other cases on tenancy in common, see Biennial 1915, C. C. Pt., $ 761.
1. Conditions repugnant, when. — Where the granting clause in a deed purports to convey a fee simple and is followed by a clause prohibiting the grantee from conveying without the grantor's consent, the latter clause is repugnant to the interest created by the former, and being in restraint of alienation is void.-Bonnell y. McLaughlin, 173 Cal. 213, 159 Pac. 590.