represented taxes and assessments which became liens upon said parcels subsequent to the filing of this action and which the defendants have paid or owe. The defendants requested that the interlocutory judgment contain a provision reserving the case for further consideration in order that the respective defendants may receive, in addition to the awards therein provided for, the amount of any and all taxes and assessments upon parcels of land owned by them respectively which shall have been levied or accrued or become a lien upon said premises at the time of payment of the awards herein. With this request the court did not comply, and we think that the refusal was justified. In section 1249 of the Code of Civil Procedure it is provided that for the purpose of assessing compensation and damages (when, as in this case, the issue is tried within one year after the date of commencement of the action), "the right thereof shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be actually taken. . . . If an order be made letting the plaintiff into possession, as provided in section 1254, the compensation and damages awarded shall draw lawful interest from the date of such order. . . . Section 1254 states the conditions under which, pending an appeal from the judgment, a plaintiff who has paid into court, for the defendant, the required sums, may take possession of and use the property until the final conclusion of the litigation. The property is not taken, so as to interfere with the defendants' ownership of their property, until the compensation is made to, or paid into court for, the owner. These facts draw a line of distinction between the case in hand and the New York decisions relied upon by appellants. (In re Mayor etc. of the City of New York, 40 App. Div. 281, [58 N. Y. Supp. 58]; In re Morris Avenue in the City of New York, 118 App. Div. 117, [103 N. Y. Supp. 180].) Those cases arose under statutes whereby the actual appropriation of property occurred at a time prior to the ascertainment of the amount of damages to be paid. Manifestly, the defendants could not be charged with subsequent taxes against property which they had ceased to own. Therefore, the city was not permitted to retain, out of the award made in the condemnation proceedings, the amount of such tax assessments. Section 1249 of the Code of Civil Procedure, "excludes all consideration of

other than the value of the property at the date of the issuance of the summons in the action." (City of Los Angeles v. Gager, 10 Cal. App. 378, [102 Pac. 17].)

It is next claimed that the court erred in refusing to make an award to defendant Pacific Electric Railway Company for the taking of power pole line parcel 462. Respondent replies that in fact the term "Parcel 461⁄2" was not used to designate any parcel of land sought to be taken, but was a term adopted merely for convenience, to indicate that portion of the pole line which had been built across certain parcels designated by appropriate numbers and which were all owned by defendants other than these appellants, and awards were made to the owners for the taking thereof. To this appellants reply that the bill of exceptions is stipulated to contain all of the evidence in the case and a full and true copy "of all of the judgment-roll, except the pleadings of defendants other than the above-named defendants, which said pleadings of said other defendants do not relate to or in any manner affect the rights of the above-named defendants-appellants herein and have no bearing upon the issues raised by the said defendants-appellants in the superior court"; and appellants say that there is no evidence to the effect that there is or was any other owner of parcel 462 or any interest therein, except the Pacific Electric Railway Company, who was in occupation of the same under claim of dedication and who was devoting the same to public use; that the evidence is absolutely all one way on this point, and that therefore the court erred in failing to award to appellants the value of the right of way. While it does appear in the findings and judgment that the court found that this land belonged to other defendants and did award to other defendants sums for the taking thereof, appellants claim that under this bill of exceptions, which contains all of the evidence in the cause, that those findings and those awards were entirely without the support of any evidence. In the answer of defendants they describe the socalled power pole line parcel 462, allege their ownership thereof and devotion thereof to public use, and further say "that said parcels of land constitute a part of a right of way for said transmission power line, as an adjunct to the railroad of the defendant, and if said parcels of land are taken without reserving to these defendants the right to hereafter maintain and operate said high power transmission line, this

defendant and said remaining portion of said lands will be damaged in the sum of one million dollars; that the defendant Pacific Electric Railway Company now owns, and has for many years heretofore owned and been in possession of, a right of way through" certain lands, describing the same in detail. Testimony was introduced by the defendants showing the facts with reference to the dedication of the land to public use and the acquirement of title to a perpetual pole line easement by the Pacific Electric Railway Company. Basing their argument upon the facts thus shown, appellants contend that the owner of the land, by permitting the railway company to enter thereon and establish its public use, thereby dedicated the land to public use so that the title to the land, so far as necessary to that public use, passed to the company; that is, a perpetual easement; that the defendant has therefore a title to this power pole line easement by dedication, and not by adverse possession. It has been held in the case of public service corporations that when it appears that, although the entry was originally without right, the owner permitted the corporation to make an entry on his land and complete and construct works for which his land was appropriated, and failed to bring an action until after public interests, by reason of the construction, have intervened, the right of the owner to maintain ejectment is denied and he is remitted to an action for damages alone. (Gurnsey v. Northern California Power Co., 160 Cal. 699, 709, [36 L. R. A. (N. S.) 185, 117 Pac. 906].) It follows, say appellants, that they are entitled to compensation for the taking of this land, although their title was an easement only.

To the foregoing the respondent replies that the answer contains only an allegation of ownership by the defendants of a right of way over the land (Tr., fols. 477-493). Respondent denies that the testimony shows a dedication thereof to public use and the acquiring of title to a perpetual or any pole line easement. This argument seems to be based upon the previous argument that the use of a pole line for the purposes described is not a public use. It is admitted by respondent that the testimony shows the construction of the pole line and its use for transmission of power to the railway company, but respondent says this does not prove that any title to an easement has been acquired. (Respondent's Brief, p. 163 et seq.) "Not only did they fail to introduce any testimony to that

end, but even had they done so, the finding of the court that the title to the land embraced in the parcels traversed by this portion of the pole line was in other parties, was equivalent to a finding against the contention of these appellants."

We are inclined to the view that Gurnsey v. Northern California Power Co., 160 Cal. 699, [36 L. R. A. (N. S.) 185, 117 Pac. 906], recognizes that under the circumstances there stated the easement acquired by the corporation became a substantial property right, the value of which would have to be accounted for by any other party seeking to enforce a superior right of eminent domain upon the same premises. The owners of the fee, therefore, are not entitled to all of the compensation to be allowed for the taking of the land, if the right of way is to be included in the condemnation without any reservation of further right of use thereof by the defendants.

It is deemed unnecessary to review in detail the several other claims by appellants that the findings do not cover all of the issues raised by the answer, and that the evidence is insufficient to support certain findings. Assuming that upon another trial the court will apply to the case the principles which we have endeavored to make clear in this decision, it is not to be expected that the findings then made will omit any necessary fact or leave room for doubt as to their meaning. The judgment and order are reversed.

James, J., and Shaw, J., concurred.

[Civ. No. 1462. Second Appellate District.-July 22, 1916.] SECURITY LIFE INSURANCE COMPANY OF AMERICA (a Corporation), Appellant, v. LENA M. SCOTT BOOMS et al., Respondents.

LIFE INSURANCE-ILLNESS OF INSURED BETWEEN DATE OF APPLICATION AND DELIVERY OF POLICY-LACK OF KNOWLEDGE BY INSURER-CANCELLATION OF POLICY.-A life insurance company is entitled to have a policy of insurance canceled upon tender of the amount of premium paid, where the applicant for the policy between the date of her application and the time of acceptance of the application and date of the delivery of the policy had an attack of typhoid fever, and the company was without knowledge or notice of such illness until after the delivery of the policy.

ID. APPLICATION FOR LIFE INSURANCE-CHANGES IN PHYSICAL CONDITION PENDING NEGOTIATIONS DUTY OF APPLICANT.-The obligation rests upon an applicant for life insurance to disclose such changes in his physical condition as occur pending the negotiations as would influence the judgment of the company as to the advisability of accepting the risk.

ID. REPRESENTATIONS IN APPLICATION-TIME.-The representations contained in an application for insurance must be presumed to refer to the time of the completion of the contract of insurance.

APPEAL from a judgment of the Superior Court of Orange County. W. H. Thomas, Judge.

The facts are stated in the opinion of the court.

C. R. Allen, and B. E. Tarver, for Appellant.

Head & Marks, for Respondents.

CONREY, P. J.-On or about October 12, 1910, Mary L. Young made application to appellant for an insurance policy upon her life, to be issued in favor of her daughter, Lena M. Scott, who is the respondent, Lena M. Scott Booms. In that application she agreed that the statements therein made by her were full, complete, and true, and should in the absence of fraud be deemed representations and not warranties. It was further agreed therein that the policy should not take effect until acceptance of the application and payment of the first premium. Payment of the first premium was completed and the policy was delivered on the eighteenth day of November, 1910. The application contained answers to questions asking whether the applicant had theretofore had any of certain named diseases, the list not including typhoid fever. The following question was: "Have you had any illness, disease, or injury other than as stated by you above?" to which a negative answer was returned. In February, 1911, Mrs. Young was afflicted with appendicitis, and after an operation therefor she died. On or about the third day of November, 1910, Mrs. Young became ill with typhoid fever. The disease ran its course in about ten or twelve days, and she was substantially recovered therefrom on the eighteenth day of November. The evidence does not show that the appendicitis was in any way consequent upon the typhoid fever, and we shall assume that the two diseases were entirely separate and