thereof had been ascertained and paid. (See Reardon v. San Francisco, 66 Cal. 492, [56 Am. Rep. 109, 6 Pac. 317]; Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, [42 Am. St. Rep. 149, 37 Pac. 750]; Eachus v. City of Los Angeles, 130 Cal. 432, [80 Am. St. Rep. 147, 62 Pac. 829]; Tyler v. Tehama County, 109 Cal. 618, [42 Pac. 240]; Wilcox v. Engebretsen, 160 Cal. 288, 298 et seq., [116 Pac. 750]; Sievers v. Root, 10 Cal. App. 377, [101 Pac. 925].)

The material question is then, whether plaintiff was properly held to have waived his constitutional right to damages for the injury done to his property. His rights under this provision of the constitution, as said in Bigelow v. Ballerino, 111 Cal. 559, [44 Pac. 307], were two, "1, the right to compensation; and 2, the right to have that compensation made or paid into court before his property is taken or injuriously affected." It was further said therein: "Either or both these rights he may waive; that is to say, he may waive his right to any compensation, or he may waive his right to prepayment of compensation. But where there is no such waiver, the propcrty-owner may rest secure in the protection which the constitution affords him that his property shall not be taken or damaged without compensation first made."

It is well settled, however, that the state legislature in the matter of public improvements concerning which they are authorized to legislate, may require the property-owner to assert his claim for compensation for the taking of his property or injury thereto before the commencement of the improvement, upon reasonable notice of the proposed taking or injury, may prescribe in what manner and within what time he shall do this, and further provide that his failure to assert a claim within the prescribed time shall operate as a waiver of all claims and constitute a bar to any subsequent action looking either to a prevention of the work or the making of compensation. It is further settled that the notice in such cases need not be personal, but may be constructive, as by advertising or posting. It is sufficient that the notice provided is such as may reasonably be held to afford adequate opportunity for knowledge of the designed improvement by the property-owner who exercises reasonable care in the matter of his property. (See Wabash R. R. Co. v. Defiance, 52 Ohio St. 262, [40 N. E. 89], 167 U. S. 88, 103, [42 L. Ed. 87, 17 Sup. Ct. Rep. 748]; Cupp

v. Seneca Co., 19 Ohio St. 173, 182, 183; Kansas City v. Duncan, 135 Mo. 571, [37 S. W. 513].) This was expressly held in Potter v. Ames, 43 Cal. 75, where a statute relating to the alteration of highways provided that notice should be given by posting, that any person owning lands to be affected by the proposed alteration and who desires to apply for damages in consequence thereof shall make application therefor to the board of supervisors at a prescribed time, and that failing to present such application at the time and in the manner prescribed, he shall be considered as waiving all right to damages, and as dedicating the lands affected by the proposed alteration to the public use as a highway. This court, after stating that the right of the property-owner to receive compensation for his property is undoubted under the provisions of the constitution, said: "While it is unquestionably competent to the legislature to provide the several steps to be pursued in the assertion of his claim for compensation, the prescribed procedure must not destroy or substantially impair the right itself. A reasonable opportunity must be afforded him to claim and receive his damages; then, if being so afforded, it be not availed of, the statute may provide that such failure should constitute a bar to his claim." The statute was held to be free from constitutional objection.

Undoubtedly, similar provision may be made in a freeholders' charter.

The question here is whether any such effect can reasonably be given to the sections of the charter of defendant city that we have heretofore quoted. These are the only provisions relied upon by learned counsel for defendant. It will be observed that there is no provision therein as to the effect of a property-owner's failure to present his remonstrance and claim of damages to the council, on his right to receive compensation for injury to his property, nothing by way of express provision to the effect that unless he does this, he shall be presumed to have waived all claim of damage or shall be barred from a recovery of any damage. He is simply given. the opportunity, "within ten days after the first publication of such ordinance" to make and file his written remonstrance against the proposed change of grade, with a statement of the damage which will arise to him by reason of the proposed change. Such a remonstrance and statement he may make

and file and the expressed effect of such filing is that "the same shall not be further proceeded with or made without compensation to such owner for any damage which may he occasioned to him by said change." This damage is to be ascertained if possible by agreement, and if an agreement cannot be reached, by an action in the nature of eminent domain. And there the provision ends. There is not one word to indicate to the owner that his failure to make such written remonstrance and filing shall operate as a waiver of his constitutional right to compensation for any injury that may be done his property in the event that the street is subsequently graded to the proposed new grade, or that he must pursue this course in order to preserve his constitutional right to compensation for such injury as may be subsequently done to his property by the actual grading. However desirable it may be that the aggregate amount of damages that must be paid to propertyowners in the matter of the change of grade of a street should be known before the change in grade is made, we are of the opinion that no statute or charter provision looking to that end should be held effectual to bar the property-owner who has not presented his claim in accord with its terms, from an assertion of his claim for compensation for the injury actually done, in the absence of clear provision therein that such shall be the effect. In the absence of clear notice to the contrary, contained in the statutory or charter provision, he should be held to have the right to assume, in view of the constitutional provision, that he will be entitled to compensation for any injury that may be inflicted on his property. In Wabash R. R. Co. v. Defiance, 52 Ohio St. 262, [40 N. E. 89], the statute expressly provided that a person failing to make his claim in the manner provided thereby "shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages." In Cupp v. Seneca Co., 19 Ohio St. 173, there was a substantially similar provision in the statute. The same is true of Kansas City v. Duncan, 135 Mo. 571, [37 S. W. 513]. As we have seen, there was a substantially similar provision in the statute involved in Potter v. Ames, 43 Cal. 75. There is no decision of this court that can reasonably be construed as making the failure of the property-owner to assert his claim for damages in advance of the doing of the work, under such a statutory or charter provision as the one before us, a waiver

of his constitutional right to compensation for such injury as may be inflicted by the doing of the work. The distinction between the case presented in Matter of Beale Street, 39 Cal. 495, and this case is obvious. At the time of that decision, our constitution did not give a property-owner the right to damages for injury to property done by the grading of a street adjoining the same. The only right of the owner in that regard was the right given him by a statute which also provided the manner in which and the time at which he should assert his claim, and the effect of the decision practically was, as stated by counsel for appellant, "that in order to claim the benefits which were granted by the terms and conditions of that act, they must comply with the requirements and conditions imposed by the provisions of the act, before such damages could be awarded." No such question was presented in German Savings etc. Society v. Ramish, 138 Cal. 120, [69 Pac. 89, 70 Pac. 1067], and the portion of the opinion in that case relied upon by learned counsel for the city in this regard is mere obiter dictum. That was an action to enjoin the execution of a deed to land sold because of the non-payment of certain bonds issued for street improvements and the question was as to the validity of the proceedings resulting in the issuance of the bonds, no question of right to damage for injury to property by reason of the work or of waiver of that right being involved. It is well settled that the fact that the property-owner "may have some cause of action founded upon rights reserved by that part of the constitution which deals. with the exercise of the power of eminent domain does not make the assessment void." (Hornung v. McCarthy, 126 Cal. 17, [58 Pac. 303]; Duncan v. Ramish, 142 Cal. 686, [76 Pac. 661].) In the case last cited it was said substantially, that where the owner fails to claim any damage for a proposed change of grade, the law affording him proper opportunity to do so, he must be held to have waived "any right to object on that ground to the proceedings for the change of grade," and that while it may be that he still has a right of action against the city for any damage in fact suffered by reason of the change, a question not decided, he cannot defeat the assessment for the improvement by showing such damage. It was also said: "It is clear that the non-payment of any such damages does not affect the assessment to pay the cost of the

work of grading, graveling and curbing. The two are entirely distinct and independent."

We are satisfied that the facts found by the trial court should not be held to show a waiver by the plaintiff of his constitutional right to be reimbursed for the damage done to his property by the grading of the street, that the findings of fact were such as to require judgment in favor of plaintiff for eight hundred dollars, and that the judgment appealed from should be reversed with directions to the lower court to enter such judgment. We can see no good reason for requiring a new trial of the issue made by the pleadings as to the amount of damage done plaintiff's property, as is requested by defendant's counsel in the event of a reversal of the judgment. If, as is suggested by him, he may desire an opportunity to show that the evidence given on the trial was not sufficient to support a finding of eight hundred dollars damage, he may present such showing on an appeal from the judgment entered under our direction, on which appeal he is entitled to "a bill of exceptions containing matters directly affecting the findings of fact upon which the judgment rests." (Klauber v. San Diego etc. Co., 98 Cal. 105, [32 Pac. 876]; Tuffree v. Stearns Ranchos Co., 124 Cal. 306, 310, [57 Pac. 67].)

The judgment appealed from is reversed, with directions to the lower court to enter judgment upon the findings in favor of plaintiff and against defendant for the sum of eight hundred (800) dollars, and his costs of suit.

Shaw, J., and Sloss, J., concurred.

[L. A. No. 2897. Department One.-May 28, 1912.] UNION LUMBER COMPANY (a Corporation), Respondent, v. A. E. MORGAN et al., Defendants; ROSE E. JANES and MARY E. WEBSTER, Appellants.

KING LUMBER COMPANY (a Corporation), Respondent, v. MARY E. WEBSTER et al., Defendants; MARY E. WEBSTER and ROSE E. JANES, Appellants.

MECHANICS' LIENS-EVIDENCE-MATERIALS USED IN BUILDING.-In an action to foreclose a materialman's lien, the evidence is held suffi