murrer to a hearing. The argument of plaintiff is that it was equally within the power of defendants, as it was equally their duty, to bring about the trial of the issue of law raised by the demurrers, and that, both plaintiff and defendants standing upon precisely the same ground in this regard, neither could charge the other with negligence; that defendants could not have been injured by a delay which he had the legal means in his own hands to end. This contention is grounded on what is claimed to be the English chancery practice, adopted by the New York chancery courts since the Codes. There is but one form of civil actions under our Code, and this court has never made any distinction, in dealing with a motion to dismiss for lack of diligence in prosecuting the action, between actions at law and actions in equity, nor can we see any good ground for such a distinction. It

is true that the defendant may bring about a trial of the issue presented by his demurrer, but he is not under any duty to do so. His attitude to the case is involuntary, and quite different from that of the plaintiff. He is put to a defense only, and can be charged with no neglect for failing to do more than meet the plaintiff step by step. The plaintiff is the party charged with the duty of diligence in prosecuting the action as the issues are presented. The case is at issue, whether it be an issue of law or an issue of fact, and when at issue the duty is upon the plaintiff to diligently pursue the action. It was said in Kubli v. Hawkett, 89 Cal. 638, 27 Pac. 57: "The appellants brought the action. It would seem that upon them rested the burden of prosecuting it to a finality, and that as a step in that direction, from the facts then appearing to the court, they should have taken measures to have the demurrers determined, so that the action could progress;" citing Simmons v. Keller, 50 Cal. 39. Kubli v. Hawkett, supra, was cited approvingly in Bank v. Nason, 115 Cal. 626, 47 Pac. 595; McLaughlin v. Clausen, 116 Cal. 488, 48 Pac. 487; People v. Jefferds, 126 Cal. 296, 58 Pac. 704; Water Co. v. Allen (Cal.) 61 Pac. 1083. Simmons v. Keller the point was unsuccessfully urged that "when the defendant can himself bring the cause to trial, he cannot have judgment, as in the case of nonsuit, for the obvious reason that he is as much in default as the plaintiff for not bringing the case to trial." In Bank v. Nason, supra, the point was made that "the nonaction of plaintiff alone will not warrant a dismissal, but the defendant must seek a trial." But while it was said that, "where the delay has been at the instance or request of the defendant, the court will properly refuse to dismiss," the action was dismissed on a showing that plaintiff had without a valid reason delayed prosecution after answer. We do not think this court has overlooked the point made by appellant in all the nu

In

merous cases where judgments of dismissal have been affirmed. There may be cases where the rule would not apply,-for example, under section 1050, Code Civ. Proc., where "one person brings an action against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an obligation." In such case the burden is cast upon the defendant to set forth and maintain his claim, and it might be said that he would not come within the reason of the rule. It is possible that some other cases might be suggested where the rule would not apply, but with such we have now no concern. We think it was the duty of the plaintiff to prosecute her action with reasonable diligence, and that the defendants were not precluded from making a motion to dismiss because they had demurred to the complaint.

2. But it is contended that want of diligence is not shown. It appears that the demurrers were filed in 1890, and were set down for hearing in May of that year; but the hearing was continued, to enable plaintiff to employ a substitute attorney for the one who had meanwhile died. Plaintiff did not employ an attorney to look after the case until in 1896, and not until called upon to do so, and after defendants had served upon her a notice of motion to dismiss the action. This motion was denied, but plaintiff took no steps to have the demurrers disposed of until January 9, 1899, when she gave notice that the demurrers would be heard on January 13th, and on the next day defendants moved to dismiss the action. It is urged that from June, 1896, to January, 1899, department 6, where the case was pending, was engaged in the trial of criminal cases, and that the law and motion calendar of civil cases there pending was not called during said time. It does not appear that the judge was requested to hear the demurrers, or declined to do so; it does not appear that any effort was made to have the case transferred to another department, where it might be expedited; on the contrary, it appears that plaintiff desired that the case should be tried by Judge Wallace in department 6, and presumably did not want it transferred. It is settled law that the court had the power to dismiss the action, and the only question is, did it abuse its discretion in so doing? People v. Jefferds, supra. We cannot say that the facts show such abuse.

The order is affirmed.

(137 Cal. 115)

In re JOHNSTON. (Cr. 877.) (Supreme Court of California. Aug. 5, 1902.) GAS COMPANIES-LAYING PIPE IN STREETSPERMIT-CONSTITUTIONAL LAW.

1. Under Const. art. 11, § 19. providing that in a city having no public works for supplying light, any one may, under direction of the su

perintendent of streets, and under such general regulations as the city may prescribe for damages and indemnity, lay pipes in the streets, so far as necessary for supplying gaslight, the city may not require a permit.

2. The requirement by a city of a permit for laying gas pipes in a street is not an exercise of the police power; it being otherwise provided that the work shall be under the direction of the superintendent of streets.

3. That it is the purpose of a company to supply gas through its pipes for other purposes than light will not deprive it of the right, under Const. art. 11, § 19, to lay pipes in street for supplying gaslight.

In banc. Application by William Henry Johnston for writ of habeas corpus against the chief of police of Pasadena. Petitioner discharged.

Lynn Helm, Edward C. Bailey (William M. Rierson, of counsel), for petitioner. E. F. Preston, amicus curiæ. C. J. Willett, City Atty. (W. R. Bacon and Herbert J. Goudge, Asst. City Atty., of counsel), for respondent.

HARRISON, J. The petitioner was arrested for the violation of an ordinance of the city of Pasadena, passed December 17, 1901, and seeks his discharge under a writ of habeas corpus, on the ground that the ordinance itself is in violation of the constitution and invalid. Section 2 of the ordinance is as follows: "It shall be unlawful for any person, firm or corporation to lay down any pipe, conduit or connection therewith in any public street or thoroughfare in the city of Pasadena, for the purpose of supplying the said city or its inhabitants with fresh water, or with gas used exclusively for illumination, or with other illuminating light, without first obtaining, in the manner hereinafter prescribed, a permit from the superintendent of streets of said city, to make the necessary excavations therefor. Any person, firm or corporation desiring to obtain such a permit shall file with the superintendent of streets of said city an application therefor in writing, setting forth the public streets or thoroughfares, and the particular portions thereof, which it is desired to excavate; the size and character of the excavation to be made, and specifically the purposes for which the pipe, conduit or connection therewith, is to be used, whether for water, gas or electricity, and if for gas or electricity that said gas or electricity is to be supplied solely to said city or its inhabitants, to be used exclusively for illumination. Said application must be verified by the oath of such person, or by the oath of a member of such firm, or by the oath of the president and secretary of such corporation, as the case may be. The said superintendent of streets upon receiving such application, and upon compliance by the applicant with all the requirements of the ordinances of said city which are now, or which may be hereafter in force, regulating the tearing up or excavation of any part of the

public streets or place in said city, shall issue a permit authorizing the excavation described in said application." The next section declares that a violation of the ordinance shall constitute a misdemeanor, and that any person convicted thereof shall be punished by fine or by imprisonment, or by both. The city of Pasadena is a municipal corporation, organized under a charter framed by a board of freeholders, and approved by the legislature January 29, 1901, and does not own or control any public works for supplying its inhabitants with artificial light. The Valley Gas & Fuel Company is a corporation organized under the laws of this state, with its principal office in the city of Pasadena, "for the purpose of manufacturing, distributing, and selling gas in any lawful manner within the state of California, and supplying municipalities and their inhabitants with artificial light." Prior to the passage of the above ordinance, the city of Pasadena had adopted an ordinance providing that no person should make, or procure to be made, any excavation in any street of said city, for any purpose, without first obtaining from the superintendent of streets written permission to do so; and that any person, on applying for such permission, should execute to the city a bond in the sum of $500, with two sureties, to be approved by the mayor, as an indemnity to the city for any expenditure rendered necessary by said excavations during the period of one year after the said excavations were made. No other ordinance was ever passed by the city in reference to damages, or indemnity for damages, caused by using the streets for laying pipes therein for supplying gaslight to its inhabitants. On December 17, 1901. the Valley Gas & Fuel Company applied to the superintendent of streets for the privilege of using the public streets and thoroughfares of said city for the purpose of laying down pipes and conduits therein, and connections therewith, so far as might be necessary for introducing into and supplying the said city with gaslight, and presented to said superintendent of streets a bond. duly executed by it, in the sum of $500, with two sureties, in accordance with the provision of the ordinance last referred to. which said bond had been on that day approved by the mayor of said city. The superintendent refused to grant the permit. and, the city council having refused to direct him to issue the same, the said Valley Gas & Fuel Company afterwards notified the superintendent that on the 11th day of January, 1902, at 8 o'clock a. m., commencing at a designated point in one of the streets of said city, it would use the public streets of said city for the purpose of laying down pipes and conduits therein, and connections therewith, so far as might be necessary for introducing into and supplying the city and its inhabitants with gaslight. or other illuminating light, and offer

ing to comply with all general regulations that such municipality might prescribe for damages and indemnity for damages in connection therewith; said use of said streets to be under the direction of the said superintendent of streets. On said 11th day of January, 1902, at the time and place designated in said notice, the said corporation commenced using the streets for the purpose theretofore named, and the petitioner herein was then and there in the employment of said company, engaged in excavating the street for the said purpose, and for no other purpose, and was at that time arrested, under a complaint issued out of the police court of said city, in which he was charged with the crime of misdemeanor, in that he did, at that time and place, “make an excavation in the public streets, to wit, Columbia street, at the head of Beacon street, for the purpose of laying down pipe for the purpose of supplying said city and its inhabitants with gas, without first obtaining a permit from the superintendent of streets, as provided by ordinance No. 470 of said city of Pasadena." Upon his arrest he sued out from this court a writ of habeas corpus, under which he seeks his discharge. Section 19 of article 11 of the constitution declares: "In any city where there are no public works owned and controlled by the municipality for supplying the same with water, or artificial light, any individual or any company duly incorporated for such purposes under and by authority of the laws of this state, shall, under the direction of the superintendent of streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages, have the privilege of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof." In People v. Stephens, 62 Cal. 209, the above section was construed by this court to be a direct grant from the people to the persons therein designated of the right to lay pipes in the streets of a city for the purposes specified, without waiting for legislative authority, or being subject to any restrictions from that branch of the government; the court saying, with reference to the privilege of laying pipes in the public streets and thoroughfares of any city: "That privilege is expressly granted by the section of the constitution cited, subject to the direction of the superintendent of streets, or other officer in control thereof, and under such general regulation as the municipality may prescribe for damages and indemnity for damages, and upon the con

dition that the municipal government shall have the right to regulate the charges thereof." The only limitations upon this privilege are those contained in the language in which it is granted, viz., that the work shall be done "under the direction of the superintendent of streets, or other officer in control thereof," and "under such general regulations as the municipality may prescribe for damages and indemnity for damages." Upon a compliance with these conditions, any individual or company duly incorporated for such purpose is given the privilege "of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes." The municipality may prescribe regulations "for damages and indemnity for damages," but these regulations must be "general,”-i. e., uniform in their application to all who may desire to exercise the privilege. The designation of "damages and indemnity for damages" as the subject upon which the municipality may prescribe regulations in regard to laying the pipes is a limitation upon its authority over the matter, and a prohibition from prescribing regulations upon any other subject connected with the exercise of the privilege. When the sovereign authority of the state, either in its constitution or through its legislature, has created a right and expressed and defined the conditions under which it may be enjoyed, it is not within the province of a municipality, where such right is sought to be exercised or enjoyed, to impose additional burdens or terms as a condition to its exercise. The constitution does not authorize the municipality to require a permit as a condition upon which the pipes. may be laid in its streets, and its claim of a right to require a permit includes the right to refuse one; and the right to annex one condition to the exercise of the privilege implies the right to annex others, which may at least impair, if not in fact amount to a denial of, its exercise. The provision that the work is to be done under the direction of the superintendent of streets gives all the protection for the use of the streets that could be obtained under a permit; and, under the provision authorizing the municipality to prescribe regulations for damages and indemnity for damages, the city will be fully protected against any pecuniary loss or detriment.

Under the statutes of New Jersey, any telephone company was authorized to use the public roads and highways on the line of its route for the purpose of erecting poles thereon to suspend its wires and other fixtures, upon first obtaining the consent of the owner of the soil; with the proviso that the use of the public streets in any incorporated cities and towns of the state should

be subject to such regulations and restrictions as might be imposed by the corporate authorities of said cities and towns. The authorities of the township of Summit passed an ordinance that no wire should be stretched across any public street without the permission of the township committee. In an action to restrain a telephone company from stretching its wires across certain streets of the township, the court held that this ordinance was not a "regulation or restriction," under the statute, and was therefore invalid, saying: "A right to prevent the use of the streets for suspending wires, unless previous consent is obtained, if such a right be lawfully conferred, authorizes a refusal to consent at discretion, and confers a virtual power of prohibition. The right to the use of the streets has been expressly granted by the legislature, and the power to prohibit or interdict this use, so granted, cannot be inferred from the declaration in the proviso annexed to the grant,— that the use should be subject to such regulations and restrictions as may be imposed. The restrictions intended in such a proviso must be held to be restrictions in the nature of regulations, and not restrictions which shall prohibit the use, or impose new conditions to the power to exercise the franchise." Inhabitants of Township of Summit v. New York & N. J. Tel. Co., 57 N. J. Eq. 123, 41 Atl. 146. A charter was granted to a gas company by the legislature of Georgia, in which it was authorized to use the streets of the city of Atlanta for laying its pipes and fixtures therein, with the proviso "that the public thoroughfares shall at no time be unnecessarily interrupted or impeded by the laying down or erection thereof, and that said streets shall not be thereby injured, but shall be left in as good state and condition as they were before the laying down of said pipes." The city of Atlanta having passed an ordinance requiring any person who desired to excavate any street for the purpose of laying gas pipes, or for any other purpose, to procure a written permission therefor from the city engineer, under the penalty of fine and imprisonment, the gas company obtained an injunction against any interference with it on the part of the city authorities in laying the pipes in the streets, and the same was affirmed on appeal; the supreme court saying: "The permission of the city of Atlanta was not required to enable the complainant to exercise its franchise. It certainly was not made a condition by its charter. This was not the contract into which it entered with the state, and it would appear anomalous if a subordinate power could impose terms which the superior did not see proper to impose." City of Atlanta v. Gate City Gaslight Co., 71 Ga. 106.

The same principle has been followed elsewhere. Michigan Tel. Co. v. City of Benton Harbor, 121 Mich. 512, 80 N. W. 386, 47 L. R. A. 104; Wisconsin Tel. Co. v. City

of Oshkosh, 62 Wis. 32, 21 N. W. 828; Appeal of Pittsburgh, 115 Pa. 4, 7 Atl. 778; Borough of Millvale v. Evergreen Ry. Co., 131 Pa. 1, 18 Atl. 993, 7 L. R. A. 369; Harrisburg City Pass. Ry. Co. v. City of Harrisburg, 149 Pa. 465, 24 Atl. 56; State v. Flad, 23 Mo. App. 185; Hodges v. Telegraph Co., 72 Miss. 910, 18 South. 84, 29 L. R. A. 770. In Borough of Millvale v. Evergreen Ry. Co., supra, the court said: "The power of the defendant in the exercise of its franchise is altogether independent of the borough, and is of just as high and authoritative origin as the right of the borough to exist at all. The rights of both are derived from the same source, to wit, the legislative power of the commonwealth, and the company is not subject to the slightest obligation to go to the borough for consent to exercise any part of its corporate franchise. Any other doctrine would subordinate the corporate franchise of the defendant to the will of the borough council, and cannot be sanctioned for a moment."

The ordinance in question is not an exercise of the police power, nor can it be justified under that authority. The exercise by a municipality of the police power over its

streets is limited to the protection of the public in their use of the streets, and does not include a limitation upon their use for any legitimate purpose. The highways of a state, including the streets in its cities, are under the control of the people of the state, and in this state the people have declared in their constitution that the streets of a city may be used for laying pipes therein for supplying its inhabitants with gaslight. Under the provision that the work shall be done "under the direction of the superintendent of streets," ample protection is afforded to the inhabitants of the city against any unnecessary encroachment or hindrance in their use of the streets.

The suggestion on the part of the respondent that it is the purpose of the corporation herein to supply gas through its pipes for other purposes than light, even if founded upon fact, does not deprive it from exercising the right conferred upon it by the constitution, or authorize the municipality to prevent it from enjoying that right. Even though the pipes when laid may be available for other purposes than supplying gaslight, the corporation is not thereby deprived of the right which the constitution has given it to lay its pipes in the streets, nor can it be required, as a condition of exercising that right, to declare that the gas to be supplied by it shall be used exclusively for illumination, or is to be supplied solely for such use. It may be added that it is not made to appear that the streets will be subject to any other or greater obstruction than is requisite for the supplying of gas for illuminating purposes. One of the purposes for which the corporation the Valley Gas & Fuel Company is organized is to supply municipalities and their inhabitants with

gas for artificial light, and it has given to the city of Pasadena a bond, executed in accordance with the ordinance of that city, to indemnify it for damages, and, by its notice to the superintendent of streets of the time and place at which it would commence to lay its pipes, has given to that officer an opportunity of having the work done under his direction. The corporation has thus complied with all the conditions named in the constitution as requisite to confer upon it the right to lay its pipes in the streets of that city, and while so engaged, its servants and employés are in the exercise of a lawful occupation, for which they cannot be subjected to criminal prosecution or arrest.

The petitioner is discharged.

We concur: BEATTY, C. J.; GAROUTTE, J.; MCFARLAND, J.; TEMPLE, J.; HENSHAW, J.

(137 Cal. 154)

WELSH v. BARDSHAR. (Sac. 959.)1 (Supreme Court of California. Aug. 7, 1902.)

AMENDED ANSWER--CONSTRUCTION—HARMLESS ERROR.

1. An amended answer which, after making, as to the first count of the complaint, certain denials, numbered from 1 to 5, inclusive, by paragraph 6 alleges that for amended answer

to the second cause of action defendant adopts paragraphs 1 to 5, inclusive, of the answer to the first cause of action, and makes them a part of the amended answer to the second cause of action, as if repeated, will be held to refer to such paragraphs of the amended answer, and not of the original answer.

2. Plaintiff cannot complain that while the answer claims 30 inches of water the court finds defendant only claims 25 inches, and gives him judgment for that amount.

3. Plaintiff, in action to restrain defendant from taking water from a ditch, being found to be the owner subject to defendant's rights under an agreement, and defendant being giv en by the judgment no greater rights than given by the agreement. mistake in a finding, giv ing the date of the agreement as later than it was, is immaterial.

Commissioners' decision. Department 2. Appeal from superior court, Siskiyou county; J. S. Beard, Judge.

Action by John O. Welsh against F. H. Bardshar. Judgment for defendant. Plaintiff appeals. Affirmed.

L. F. Coburn, for appellant. Gillis & Topscott, for respondent.

COOPER, C. This action was brought to restrain defendant from interfering with a certain water ditch alleged to belong to plaintiff, and to recover damages for alleged wrongful acts of defendant. The case was tried before the court, findings filed, and judgment thereupon entered for defendant. The appeal is from the judgment on the judgment roll, and the sufficiency of the evidence to justify the findings is not questioned. Appellant claims that the findings are contradictory and contrary to the admissions of the answer in several respects. This claim is 1 Rehearing denied September 6, 1902.

69 P.-62

based upon the contention that the original answer is as to certain matters made the answer in the case, and that the portions of the answer so claimed to be the defendant's pleading contain admissions contrary to the findings.

The amended answer superseded the original as a pleading. Gilman v. Cosgrove, 22 Cal. 358; Pfister v. Wade, 69 Cal. 133, 10 Pac. 369; Schneider v. Brown, 85 Cal. 206, 24 Pac. 715.

The answer as amended contains certain specific denials and averments, numbered in paragraphs 1, 2, 3, 4, and 5, as to the first count or cause of action alleged in the complaint. It is then alleged in paragraph 6 as follows: "And for amended answer to the second cause of action set forth in the complaint herein defendant adopts paragraphs 1, 2, 3, 4, and 5 of the answer to the first cause of action set forth in the complaint, and makes them a part of the amended answer to the second cause of action herein, the same as if they were repeated herein." We think it was plainly the intention of the pleader to adopt the preceding paragraphs of the amended answer. The answer referred to the answer as amended. This was evidently the construction placed upon it by the parties, agraph 6 of the amended answer is in almost and by the court in making its findings. Parprecise language of an allegation at the end of paragraph 5 of the original answer in which defendant adopts paragraphs 1 to 5, inclusive, of his answer to the first cause of action, "and makes them a part of his answer to the second cause of action." Hence it is plainly seen that the reference in the amended answer is to its preceding paragraphs, and not to the original answer.

Appellant contends that under the amended answer, as we have construed it, the de

fendant claims 30 inches of the waters of the ditch, and admits that he threatens to divert that amount of water. He then complains that the court finds, contrary to the admissions of the answer, that the defendant only claims 25 inches, and gives judgment for that amount to defendant. If the defendant were the complaining party, there would be much force in the contention, but we do not see that appellant has any cause of complaint because the defendant did not get the right to 30 inches of water instead of 25. The court found upon the issue, and the finding is for a less amount of water than the defendant claims in his answer. It is urged that the court found that the contract with the predecessors in interest of the defendant by which they agreed to allow the plaintiff to construct the ditch across their lands in consideration of the right to take from the ditch 30 inches of water was made on April 1, 1898, which was long after the completion of the ditch, and after the defendant had become the owner of the land. This is evidently a clerical mistake, as the answer alleges the contract to have been made April 1, 1888.