firm, the amount of the investments of each of the brothers in the business, as to the object of respondent H. Kolm in disposing of the note and mortgage to respondent Bertha Kolm. The above statement shows generally the nature of the offered evidence, and it will not be necessary to consider the questions and rulings separately. The court, after several questions were asked tending to show the above matters, in sustaining objections to the questions said: “I don't care to hear any authorities upon the proposition that one man can, by any declaration of his, bind another, except he be present and hear it, as to the relation between them. I said yesterday that this is a case of trial by jury in which they determine all questions of fact. It is not within the province or power of this court to say whether any prima facie case or any other case is made out. The objection is sustained." The court erred in excluding the offered evidence. It was one of the main points at issue as to whether or not H. Kolm was one of the partners of the firm of Kolm Bros. It was also material to determine the issue as to the ownership of the note and mortgage which H. Kolm claims to have sold to his sister Bertha. After a prima facie case as to partnership is made, the admissions and conduct of the several partners in the course of the partnership business are admissible as against the others. 1 Greenl. Ev. § 177; Colly. Partn. § 775; 1 Lindl. Partn. (2d Ed.) p. 128, note 2. And in a trial before a jury it is incumbent on the judge to determine the question whether there is prima facie evidence of a partnership. Hilton v. McDowell, 87 N. C. 364; Bryce v. Joynt, 63 Cal. 378. The ultimate facts in such cases should be determined by the jury upon proper instructions from the court, but, the prima facie showing of a partnership having been made, the court should admit all evidence that is admissible upon the theory that the partnership has been fully proven. Any other rule would deprive a party of very material testimony. In this case, for instance, if the jury had concluded' that a partnership existed, and that H. Kolm was a member of the said partnership, it would not have had before it any of the evidence that was offered upon the theory that he was such partner. The exclusion of the evidence was upon the theory that H. Kolm was never a partner of Kolm Bros. If the jury had found such co-partnership, then the evidence was admissible. In order for it to be admitted the case would have to be retried. There was ample evidence to show prima facie that H. Kolm was a partner of Kolm Bros. He was in the store, and was in and about the business, conducting and managing it apparently as the other brothers. Before the business was opened in Los Angeles the witness Linehan testified that H. Kolm told her "that he was going to invest some money, and look around, and start in business here in Los Angeles." The witness Jappa testified that H. Kolm told him that "he had

more money invested in the business than his brothers." The witness Stelinski testified that, after Kolm Bros. had closed their store in Los Angeles, he was present at a store in Chicago being opened by H. Kolm, and witness saw goods marked very low, and some of the cases had "Los Angeles" written upon them, which appeared to be obliterated; and witness said to H. Kolm, "Have you stolen those goods, or found them, because you can sell them so cheap?" Kolm answered: "We had a store in Los Angeles,-we brothers,— but we couldn't agree. After dis

posing of what we could, the balance was shipped to Chicago." He said they were three in partnership. He said, "The Jews swindled enough, and it is not more than right that we should do the same, or swindle them." In a letter written at Chicago, August 22, 1897, to his sister, the intervener, H. Kolm said: "Now, we are already through with the business, and live again on Fry street here. Each goes his own way whence he came. Theodore will soon be West again, Ferdinand again at Moody's school, and I am out working at present. We cannot think of

such a thing as to conduct a business in partnership again." There are other circumstances and admissions, but the above is sufficient. It was the duty of the court to determine whether or not a prima facie case showing H. Kolm to have been a partner was established. Such prima facie case was established. The offered evidence was admissible upon the theory that H. Kolm was a partner. We advise that the judgment and order be reversed.

* *

1. In an action against a town for a nuisance caused by the diversion onto plaintiff's lot of surface water running past the same, it was claimed that the water never ran there in a well-defined channel. Plaintiff testified that, from the time she went to reside on the lot in 1886, "there was a waterway at the edge of the sidewalk, perhaps eighteen inches deep," crossed by "a plank about three feet long.' Another witness said that the water had flowed along the street in question from the time it was graded, in 1881, and before that, for 25 years or more, had flowed along generally in the direction of the street, in "a welldefined water course and channel, meandering generally along what is now the general course" of such street. Other witnesses said that prior to 1893 there was no regular ditch along the street, but only a gutter, and that the wate.

1 Rehearing denied January 22, 1901.

was confined merely by the sidewalk on one side and the rise of the street on the other. Held, that it was error to grant a nonsuit on the ground that there was no evidence that the stream had flowed in a clearly-defined channel.

2. A municipality, the same as an individual, has no right to divert surface water from the channel in which it flows in a street, whether natural or artificial, and however it may have come into the street, and throw it onto the land of another.

3. The rule that a city, in grading a street in the regular performance of its legitimate functions, is not responsible for consequential damages, does not apply to its direct invasion of the rights of a lot owner, where it diverts water from its channel in the street, and throws it onto his premises.

SMITH, C. The plaintiff was nonsulted in the court below, and appeals from an order denying a new trial. The suit was brought to enjoin the maintenance of an alleged nuisance, and for damages suffered by the plaintiff by reason of it. The defendants, other than the town, were trustees of the town, but are sued individually. There was no evidence tending to establish the cause of action as against them, and as to them the nonsuit was rightly granted. The material facts of the case, as disclosed by the evidence, are as follows:

Plaintiff is the owner of a lot containing about two acres of land in the town of Cloverdale, fronting northwest on First, and northeast on Washington, street. First street runs northeast and southwest; but the witnesses speak with regard to it as though it ran east and west, and for convenience of expression I will adopt this usage. The plaintiff has been the owner of the lot in question since 1890, and had previously resided thereon with her husband from 1886. During all this time there was a waterway running along the south side of First street past her lot, in which during the rainy season, or at least during wet seasons, there was running water. This water, prior to 1893, crossed Washington street through a culvert, and passed on to West street, about a thousand feet further on, and thence along the same southerly to a large ditch, and into the river. But in that year Washington street was graded across First street so as to form an embankment across the waterway, and without culvert, by which the water was divertec from its former course, and made to flow along the west side of Washington street, near the east boundary of plaintiff's lot. The result was that, during the two rainy seasons following this work, the water was backed up over the land of the plaintiff, and part of

her land, with 30 or 40 feet of her fence on Washington street, washed away. The channel of the water was also washed out to the depth of about 3 or 31⁄2 feet, and to the width of 6 or 7, and access and egress to and from her land thus impeded.

One of the grounds for nonsuit was that prior to 1893 the water-which respondent claims was mere surface water-"never run there in any well-defined channel for any considerable time," and the court seems to have based the decision on this ground, or, as expressed by itself, on "the absence of a clearlydefined channel upon First street prior to 1893." But there was evidence that there was such a channel. The plaintiff testified that from the time she went to reside on the place in 1886 "there was a waterway at the edge of the sidewalk * * perhaps eighteen inches deep, with a sandy, pebbly bottom," crossed by "a plank about three feet long." And the witness Crigler testified that the water had flowed along First street from the time it was first graded, in 1881, and before that, "for 25 or more years," had "flowed along generally in the direction of First street," in "a well-defined water course and channel, meandering generally along what is now the general course of First street." Some of the witnesses, indeed, testified that prior to 1893 there was no regular ditch along First street, but only a gutter, and that the water was confined merely by the sidewalk on one side and the rise of the street on the other. But this is not in conflict with the other evidence, but equally establishes the existence of a "water course" or "clearly-defined channel"; and, indeed, had it been otherwise, it should, on motion for a nonsuit, have been disregarded.

The fact that the water flowed only during the rainy season, or during rainy weather, or, as claimed by respondent, was mere surface water, is quite immaterial; and it may even be admitted (though there was evidence to the contrary) that the course over which the water flowed was not a natural water course. It was sufficient that there was, and for many years had been, a definite channel, whether natural or artificial, and that the defendant obstructed this channel, and thus diverted the water onto plaintiff's land; that is to say, not only onto the west half of Washington street, which is presumably the land of the plaintiff (Civ. Code, §§ 831, 1112), but onto her lot outside the street. "An individual has no right to collect in artificial channels mere surface water, and precipitate it on the land of another. Nor has a corporation, whether public or private, the right to collect in such channels the mere surface water precipitated by rain or snow over large districts, and throw it upon the property of another." Conniff v. City and County of San Francisco, 67 Cal. 45, 7 Pac. 41. With reference, therefore, to the damage accruing from the impact of the water onto the plaintiff's land, the case comes directly within the principle cited.

And, generally, I think, the case comes within the authority of the decision last cited, and of Los Angeles Cemetery Ass'n v. City of Los Angeles, 103 Cal. 461, 37 Pac. 375. In Conniff v. City and County of San Francisco, -which was a case very similar to this,-the channel obstructed is referred to in the course of the opinion as "a natural channel"; but the meaning of this expression is to be interpreted by reference to the actual character of the channel as shown by the pleadings and evidence in the case, and from this it does not appear to have been anything more than "a water course crossing the street," and "the channel of usual escape." We may therefore construe the term "natural channel" as including all channels through which, in the existing condition of the country, the water naturally flows. As is said in Los Angeles Cemetery Ass'n v. City of Los Angeles (pages 466, 467, 103 Cal., and page 377, 37 Pac.): "In all regions of country having a broken surface, and subject to heavy rainfall, surface water does make for itself or assume definite channels in seeking, pursuant to the law of gravitation, a lower level;" and it is also said that municipal corporations are bound to provide for the escape of surface water in all "that class of cases where the surface water, owing to the conformation of the adjacent country, has formed for itself a definite channel in which it is accustomed to flow." In both of the cases cited the decision and language of the court must be construed as referring to the existing condition of the surrounding country, which had come, in each case, to be a part of a city, and thus materially and essentially transformed from its original condition. In each case, though the channel of egress was probably the same as before the city existed, the waters flowing to it-by reason of the grading of lots and streets -may, and, indeed, must, have been different from what before the improvement of the city naturally flowed to the same point; and it is to the conditions existing at the time of the suit, and not to those anciently or originally existing, that the decisions must be understood to relate. And this, on principle, must be the true construction of the term "natural channel," when used in the present connection; for, by the necessarily great changes that must occur in the conformation of the country in the building of a city, the natural channels for the surface water are changed; and as the changes in the ground are inevitable and legitimate, and therefore natural, the new channels, through which, under natural laws, the surface waters are discharged, must also be regarded as natural.

Some other grounds are urged by respondent in support of the judgment, to which we will briefly advert:

(1) It is claimed that the natural course of the surface waters from the cañon west of the town, in which they have their source, was not along First street, but from the land of one Smith, west of the western terminus

63 P.--10

of the street, southwesterly into a ditch passing to the south of the plaintiff's lot; that the waters were diverted to the course along First street by a board fence erected by Smith about the time of the construction of the embankment across First street complained of; and that in fact the damage to the plaintiff was caused by the increased flow of water thus occasioned, and would not otherwise have occurred. To understand this position, it should be understood that prior to 1893 there was a picket fence through Smith's place, on the prolongation of the south line of First street, which in 1893 was replaced by the board fence referred to. But, as we have seen, the evidence showed that long before the year referred to the course of the water had been along First street, and that any material difference was made in the flow is a mere inference. Nor, though it were otherwise, would the liability of the defendant be affected. There is no reason to suppose that the increased flow, if any, would have damaged the plaintiff's land if it had not been turned by the defendant; and, however the water may have come into the street, the defendant had no right to turn it upon the land of the plaintiff.

(2) It is further urged that the grading of Washington street by the city was in the regular performance of its legitimate functions, and that it is not responsible for consequential damages. But the case is not one to which this principle can apply. The act complained of was a direct invasion of the plaintiff's rights, and consequently unlawful. Conniff v. City and County of San Francisco, 67 Cal. 50, 7 Pac. 44, and cases cited. I advise that the order denying a new trial be reversed as to respondent the town of Cloverdale.

We concur: GRAY, O.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order denying a new trial is affirmed, with reference to the respondents other than the town of Cloverdale, and as to the respondent last named it is reversed, and cause remanded for a new trial.

(131 Cal. 34) STANFORD v. CITY AND COUNTY OF SAN FRANCISCO. (S. F. 1,171.) 1 (Supreme Court of California. Dec. 20, 1900.) TAXATION-STOCKS AND BONDS-SITUS. Stocks and bonds of a foreign corporation, owned at the time of his death by a resident of California, where his estate is being adminis tered, and inventoried by his executrix as part of the estate committed to her charge, is there taxable to her, under Const. art. 13, § 8, as property "owned or claimed" by her, though testator had pledged it for a loan in another state, and it still remains so pledged.

Commissioners' decision. Department 2. Appeal from superior court, city and coun1 Rehearing denied January 19, 1901.

Action by Jane L. Stanford, executrix of Leland Stanford, deceased, against the city and county of San Francisco. Judgment for defendant, and plaintiff appeals. Affirmed.

Wilson & Wilson, for appellant. Franklin K. Lane, for respondent.

CHIPMAN, C. Action to recover certain taxes, paid under protest, upon certain stocks and bonds situated in New York City. Defendant had judgment on the demurrer to the complaint, from which this appeal is prosecuted.

It appears from the complaint that at his death plaintiff's testator was the owner of a large number of stocks or shares and certain bonds of foreign corporations, all of which, except certain described shares of stocks, were, on and prior to the first Monday in March, 1894, in the state of New York, and pledged as collateral security for the payment of a loan, “and were not on and prior to said date, and thence hitherto never have been, in the possession of this plaintiff as executrix as aforesaid"; that before the assessment in question plaintiff "made a formal statement in writing to said assessor that the said property so assessed by said assessor to this plaintiff as said executrix was not at any time on or since said first Monday in March, 1894, in the possession of said estate or of this plaintiff as executrix,"

- except as above stated, and that "this plaintiff, as such executrix, did not have in her charge, possession, or control the personal property, or any part thereof, so assessed," except as above shown; that plaintiff appeared before the board of equalization, and made application "to strike out the said assessments, and fully set forth the facts upon which it was claimed that the assessments or valuations should be stricken out." The personal property involved is divided into three classes: First, shares of stock of foreign corporations, the certificates of which were physically in the possession of the executrix in San Francisco at the date of the assessment; second, shares of stock of foreign corporations, the certificates of which were not within the state, nor in the actual possession of the executrix, on the tax day, but were in New York City, where they were held in pledge as collateral security for certain advances made thereon prior to the testator's death, the amount of which advances does not appear from the complaint; third, bonds of foreign corporations similarly situated to the shares last above named.

1. As to the assessment of the property falling within the first classification, the learned counsel for plaintiff make no point in their brief. This property is clearly taxable in this state. In re Fair's Estate (Cal.) 61 Pac. 184, and cases therein cited. See, also, Mackay v. City and County of San Fran

cited, and Id., 113 Cal. 392, 45 Pac. 696.

2. Plaintiff does not attempt to distinguish between the stocks and bonds which were outside the state before the death of plaintiff's testator, and we see no ground upon which the one may and the other may not be taxed. The same principle must govern both. Appellant contends that, so far as the executrix was concerned, these stocks and bonds had a situs outside of this state, and were never in her possession or control, and are, therefore, not taxable here; that under sections 1613, 1615, Code Civ. Proc., the executrix is chargeable only with such property as may come into her possession, and is not responsible for what she cannot collect. It is stated in the brief of counsel that upon her appointment as executrix plaintiff filed an inventory and appraisement, and, as was her duty, included therein a list of the stocks and bonds in question which she had been informed were in New York City, pledged as aforesaid; but that she never had the property in possession or under her control, and is not accountable to the probate court or to any legatees or devisees for it, nor could she collect commissions on it as executrix; and it cannot, therefore, be taxed here. We do not see that the extent of the executrix's accountability or liability for the property in her official capacity affects the question of its being liable to taxation. While she has not the possession, she yet has a control in so far that she may pay off the lien, and would then be entitled to possession and absolute control. Her pecuniary liability as executrix may be limited by reason of the possession being in another person, and still there remain a responsibility and control. Certainly, the property belongs to the estate, and the executrix, having taken it up on her inventory, is charged with a duty to protect and care for it. We are not willing to admit that she would be free from liability should she negligently allow the property to be lost to the estate. But at most the circumstance alone of her acting in a representative capacity can have but little bearing upon the question as to the situs of the property. That situs is in California, as we shall see under the general rule laid down in this state, unless for some reason it can be excepted therefrom. In short, it seems to us that the case stands as if the testator were alive, and the property had been taxed to him. Plaintiff represents him for purposes of taxation while representing his estate as executrix of his will.

Appellant cites several cases and quotes from Desty on Taxation to the point that it is the actual situs of the personal property, and not the domicile of its owner, that determines where the tax should be laid. It is not necessary to enter upon the discussion of this proposition. It has been expressly held by this court, quite recently, that bonds of a West Virginia railroad com

pany, which had never been physically present in this state, but were kept in New York City, or elsewhere at the East, have their locality or situs for the purposes of taxation "at the place where they are held, -that is, owned." In re Fair's Estate, supra. See, also, Mackay v. City and County of San Francisco, supra. The testator in the present case died while a resident of California, and in California his estate is being administered by his executrix. Among other of the properties of her testator the executrix inventoried, and thereby charged herself with, the personal property in question as part of the estate committed to her charge. Unquestionably, this property is "held-that is, owned"-in California, and has "its locality for purposes of taxation at the place" where so owned, unless the general rule is subject to modification, or is inapplicable where the stocks and bonds, as in the present case, were pledged by the testator in his lifetime as collateral security without the state. In Re Fair's Estate, supra, it was said that there was an exception to the rule there laid down, which had received extensive recognition, namely, "where the paper evidences of debt are in the possession and control of an agent of the owner in a state foreign to the domicile of the latter, and are held by the agent for management in the course of the permanent business of the owner,-as, for example, to collect the money to become due thereon, and to reinvest it,-the securities are deemed taxable at the domicile of such agent." The cases cited as so holding are Catlin v. Hull, 21 Vt. 152 (the leading case); People v. Smith, 88 N. Y. 576; Finch v. York Co., 19 Neb. 50, 26 N. W. 589; Goldgart v. People, 106 III. 25. Appellant contends that, if these securities may have a "business situs" in New York, under the circumstances last above cited, "a fortiori they should not be assessed to the executrix when they are held by a pledgee adversely to her, and when she has absolutely no control over the same." But it will be observed that the exception to the general rule assumes that the securities "are held by the agent for management in the permanent business of the owner," at the place where they are held; and, as was said in Mackay v. City and County of San Francisco, supra, the investment and reinvestment is "in such manner that the property or credits come in competition with the capital of the citizens of the state in which the agent resides." In the instance of securities thus sent away as the basis for a permanent business in a foreign state, the accumulations to be there invested and reinvested, and the principal to remain as the source of income for the investments, the case is quite different from that of a temporary hypothecation as security for a loan. In the one case there is a transfer of capital from the owner's residence to the foreign state, there to be used in prosecuting

a permanent business, and for the purposes of taxation for that reason is held to have a "business situs"; in the other case the transfer is for a specific and temporary purpose that may be accomplished in a brief space of time, and may be, and presumably is, to aid the business of the owner at his place and residence. The reasons for creating an exception in favor of the "business situs" have no application to the case here, and furnish no argument, a fortiori or otherwise, for making an exception to the rule.

We are cited to Story, Confl. Laws, § 550, where it is written: "Although movables are, for many purposes, to be deemed to have no situs except that of the domicile of the owner, yet, this being a legal fiction, it yields whenever it is necessary for the purposes of justice that the actual situs of the thing should be examined." Appellant also cites Green v. Van Buskirk, 7 Wall. 140, 19 L. Ed. 109, and adds: "The case at bar is clearly such a case where an examination as to situs is necessary for the purposes of justice." Waiving the question whether Mr. Story referred to intangible property, such as stocks and bonds, when he spoke of "movables," we find no peculiar circumstances in this case that would seem to make it necessary to examine the situs of the property in order to do justice. It is quite common in all parts of the United States for business men engaged in large operations, as was Gov.. Stanford, to resort to the principal or some other money center in a foreign state for financial aid, and the pledging of intangible securities is the common means of obtaining such assistance. Sometimes money is borrowed to nearly the full face value of the security (depending upon its stability and character); sometimes on a small margin of that value. If the rule contended for by appellant were adopted, it would furnish an opportunity to escape taxation at the place where the securities are owned by pledging them in a foreign state for a merely nominal loan. We are not informed by the complaint of the circumstances attending the pledging of the securities here in controversy. Even if it be conceded that, where the full value of the securities has been borrowed, an exception might be made (which we by no means would be understood as deciding), no such circumstance is here presented. So far as we know, the equitable interest of the estate in these securities may be equal to nine-tenths of their value, or even more.

The Political Code (section 3629) provides that the assessor "must assess such property [i. e. taxable property] to the persons by whom it was owned or claimed, or in whose possession or control it was, at twelve o'clock meridian, of the first Monday in March next preceding"; and the constitution provides that all property shall be assessed "to the person by whom it was owned or claimed, or in whose possession or control it was," on the tax day. Const. art. 13, § 8. Shares of stock