tion-here against one that is public and municipal; but we are not aware that there is anything in the nature or essence of the corporation known as the city and county of San Francisco, though public and municipal in its character, or in the statutes relating to it, which justifies it, even in the prosecution of a public work authorized by statute and for the public benefit, in taking the property of another. The former constitution of California under which the work was done, as well as the constitution now in force, renders null all legislation to authorize such a proceeding."

In Bigelow v. City of Los Angeles, 85 Cal. 614, the court cited Reardon v. San Francisco, supra, to the point that, if compensation had not been obtained under the provisions of the code with respect to eminent domain, it can be recovered in an action.

I think the injuries here complained of are clearly within the constitutional provision above cited as construed in the cases above noticed; and, if so, I see no reason why the plaintiff's damages may not be recovered from the county, since the statute expressly authorizes counties to sue and be sued. All the California cases cited by counsel for respondent, except Crowell v. Sonoma County, supra, were for personal injuries; and counsel contends that the same principle applies in cases of injury to property, and that therefore, upon the authority of the cases cited, the county is not liable. It was so said in Crowell v. Sonoma County, supra; and under the old constitution that was doubtless true; but the change in the constitution, in the respect we have discussed, creates a clear distinction between damages to property and damages for personal injuries. Cases cited by counsel for respondent from other states need not be considered, the question as to the liability of the county being settled by our own decisions.

I think the allegations of the complaint, as to the injuries resulting from the change in the current of the stream, state a cause of action, unless, as held by the court below, the fact alleged in the complaint that the

bridge was constructed upon private property and outside of the dedicated highway exempts the county from liability.

By erecting the bridge outside of the right of way and upon private property the supervisors did not acquire title to the bridge in themselves, as individuals, or as a board, nor did it become the private property of the plaintiff. The bridge was erected and paid for by the county for the use of the public, and is used by the public. It would hardly be contended that because the bridge was built upon the plaintiff's land that he is at liberty to destroy it, or to prevent the public from using it; nor, upon the other hand, will it be contended that the county may continue perpetually to maintain it for the use of the public without liability for damages to private property resulting from its maintenance. The board of supervisors had ample authority under the statute to construct a bridge across Elder creek, but in doing so they inflicted an injury upon the plaintiff, which may or may not have been unavoidable.

If the property of the plaintiff was in fact taken for public use without having been condemned and paid for under the provisions of the code relating to eminent domain, he may recover compensation therefor in an appropriate action, notwithstanding the mode of its taking was unauthorized. (Reardon v. San Francisco, supra; Bigelow v. City of Los Angeles, supra.) And if by such taking or use other property of the plaintiff is "damaged," it follows that a recovery for such injury may also be had. If the board of supervisors had no authority under any circumstances to erect a bridge, respondent's contention would have a very different basis; but the board is authorized to erect bridges, and necessarily to determine the place of such erection; and if from necessity, or by mistake, they erect a bridge outside of the limits of the highway, the county cannot, while maintaining the bridge for public use, repudiate the action of the board, and refuse to compensate a person whose property has been taken or damaged.

CIX. CAL.-40

It is said in Lewis on Eminent Domain, section 623, that: "It has been held in a number of cases that where land is appropriated to a public use, either with the consent of the owner or otherwise, a common-law action will lie to recover the just compensation to which the owner is entitled." (See cases cited in note 1.)

But the injury caused by the change in the direction of the current is not attributed to the fact that the bridge was erected upon plaintiff's land, but to the walls or abutments confining the water in times of freshets, whereby the direction of the current is changed; and that for injuries thus caused a recovery may be had, see Lewis on Eminent Domain, section 66, and cases there cited.

The plaintiff does not allege the value of the land taken by the change in the location of the bridge and of the road leading to it, nor seek to recover compensation for the land so taken.

Counsel for respondent calls attention to two specifications of alleged uncertainties (marked G and H), namely: "It is uncertain as to whether the obstructions alleged to have been built in said Elder creek were built by the defendant or by the Pacific Bridge Company"; and "it is uncertain as to who built the said buttresses, piers, and walls of stone, and other material in said Elder creek."

It is immaterial whether the work of building said obstructions was done by the bridge company or by some one else. It is alleged, as to the entire work, that it was done under the direction and according to plans and specifications furnished by the board of supervisors, and that the work, when completed, was accepted by them; and this is sufficient. The complaint in some respects may be subject to criticism, though it is not obnoxious to a general demurrer; but as the case is an important one, the plaintiff should be permitted to amend his complaint if he so desires. The judgment, appealed from should be reversed, with leave to the plaintiff to amend his complaint as he may be advised.

BELCHER, C., and BRITT, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is reversed, with leave to the plaintiff to amend his complaint as he may be advised. HARRISON, J., GAROUTTE, J., Van FLEET, J.

Hearing in Bank denied.

[No. 18398. Department Two.-November 5, 1895.] CENTRAL PACIFIC RAILROAD COMPANY, RESPONDENT, v. MARY E. DEETZ, DEFENDANT, H. P. MARTIN ET AL., INTERVENORS, APPELLANTS.

VENDOR AND PURCHASER-ACTION TO BAR RIGHT OF PURCHASER-INTERVENTION BY MORTGAGEE-PAYMENT OF PURCHASE MONEY-TIME NOT OF ESSENCE.-Where land is sold under an executory contract, and the purchaser has mortgaged the premises and provided in the mortgage that the mortgagee or his assigns may pay and discharge at maturity all liens or encumbrances thereon, the assignees of the mortgagee may intervene and offer to pay the residue of the purchase money if time is not made of the essence of the contract of purchase, and it is not necessary that the holder should offer to surrender the contract in order to be entitled to pay the amount due to the vendor, and to compel the vendor to convey the land to the vendee upon such payment, subject to the mortgage.

APPEAL from a judgment of the Superior Court of Siskiyou County. J. S. BEARD, Judge.

The facts are stated in the opinion of the court.

T. M. Osmont, for Appellants.

J. F. Farraher, for Respondent.

TEMPLE, J.-This action was brought to bar and cut off the right of the defendant to certain land which she had contracted to purchase from plaintiff. Appellants filed a complaint of intervention, to which the plaintiff demurred. The demurrer was sustained, and, judgment having been rendered for plaintiff, the intervenors appeal.

It is averred in the complaint that, after defendant had entered into the contract for the purchase of the land, said defendant and several other persons named in the complaint made, executed, and delivered to one M. A. Harding their promissory note for twenty-two thousand dollars, payable with interest two years from its date, which was April 15, 1891. And at the same time, to secure the payment of said sum with interest, said makers, including the defendant, executed and delivered to Harding a mortgage upon the premises described in the complaint and upon other lands, which was duly recorded. Also that the intervenors have become the owners of the said note and mortgage. The note is now due and wholly unpaid.

It is provided in the mortgage that the mortgagee or his assigns may pay and discharge at maturity all liens or encumbrances upon the mortgaged premises.

It was also averred that it was necessary for the protection of the intervenors, as mortgagors, that the amount due the plaintiff be paid, and, in connection with this allegation, it was averred that the remaining property covered by their mortgage was insufficient to pay the amount due and owing on said mortgage.

It was also charged in said complaint that "prior to the fifteenth day of October, 1892, these intervenors offered to plaintiff to pay the said railroad company the balance of its said demand, to wit, the said sum of fifteen hundred dollars, but plaintiff refused to accept payment thereof from these intervenors without the production by them of said written contract, Exhibit A; that these intervenors were not then in possession of said contract and were not able to produce the same, which facts were by them communicated to the plaintiff, and at the same time the plaintiff was further informed that the intervenors held a mortgage upon said premises executed by the said Mary A. Deetz and others, and that they were therefore interested in making final payment upon said land so as to save the security, and ultimately secure out of the same the full payment and satisfaction of the