no

included the premises here in contest. There was evidence that when the predecessor of appellant-the Los Angeles & Santa Monica Railroad Company-contemplated building a road across the land, the person whom it authorized to obtain rights of way, etc., for such contemplated road had an interview with respondent, at which the latter agreed that the railroad company might go on and build the road over his said land, provided it would put a good depot on it, at which all passenger trains would stop; and that when that was done he would make a deed conveying the right of way. This evidence was clearly admissible, although there was written contract to show that the railroad company entered upon the land by respondent's permission, and not hostilely. The result of the interview was reported to the company, and soon thereafter it began to build the road over the land, and, having completed it, it ran its trains over it. It continued to operate the road, but did not build the depot, nor stop its trains on respondent's land. It made no demand for a deed conveying the right of way, nor did respondent make a demand for the construction of the depot, until after five years had elapsed, when the present action was commenced by appellant. The court correctly found that appellant had no title. The railroad company having gone into possession under respondent's permission, and in consonance with the latter's title, which it was not to have until it should have performed the conditions named, the statute of limitations would not commence to run until the company had in some open way repudiated that title. This is elementary law, and we will simply refer to some authorities cited in respondent's brief: Farish v. Coon, 40 Cal. 33; Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Kirk v. Smith, 9 Wheat. 288, 6 L. Ed. 81; Wood, Lim. § 260.

Appellant contends that the findings are not full enough, because there is no express finding as to the statute of limitations and prescription. Assuming, without deciding, that this question can be raised on an appeal from an order denying a new trial, we do not think that this contention can be maintained. The whole question in the case was whether appellant had title. It based its only claim to title on prescription, and the finding of the ultimate fact that it had no title necessarily included the whole controversy.

The respondent filed a cross complaint in which he set up his ownership and prayed for judgment declaring him to be the owner in fee of the land in contest and restoring him to possession thereof, and the court rendered judgment in accordance with his prayer. Appellant contends that the part of the judgment giving respondent restitution of possession goes too far, and is, under any view, erroneous. It does not appear clear

to us that, even if we could consider the question, we should hold that part of the judgment unwarranted. Appellant brought respondent into court, and asked that he present whatever claim of title he had, and have it adjudicated. The respondent appeared, and set up title in fee, and the court adjudicated that he had such title; and it is difficult to see why, under section 578, Code Civ. Proc., the court did not have jurisdiction to "determine the ultimate rights of the parties on each side," which would include the right of respondent to possession of the premises in contest. It is doubtful if the case at bar could be brought within the declarations made in Railroad Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157, supposing that they correctly state the law. However, this question cannot be here raised. There are, perhaps, differences of opinion as to the question whether, on an appeal from an order denying a new trial, the point can be considered that the court failed to find on some issue material to the decision, which was not necessarily disposed of in the other findings, and upon which evidence was introduced. But the clear result of the cases, from Knight v. Roche, 56 Cal. 15, down, is that the question now under consideration cannot be raised on this appeal. "Whether the findings sustain the judgment entered thereon can be examined only upon an appeal from the judgment." Wheeler v. Bolton, 92 Cal. 159, 28 Pac. 558. "The judgment itself can be reviewed only by a direct appeal taken after its entry." Brison v. Brison, 90 Cal. 323, 327, 27 Pac. 186. There are other cases to the same effect, and these cases do not conflict with Knight v. Roche, supra.

The order appealed from is affirmed.

We concur: TEMPLE, J.; HENSHAW, J.

(136 Cal. 14) SPRING VALLEY WATERWORKS v. FIFIELD et al. (S. F. 1,778.) (Supreme Court of California. March 12, 1902.)

PUBLIC NUISANCE-ABATEMENT-SPECIAL INJURY-PLEADING-TRIAL FINDINGS POLLUTION OF STREAM-CIVIL ACTION-MISDEMEANOR.

1. A complaint to abate a public nuisance alleged that plaintiff owned a certain reservoir, from which he furnished the city water, and into which flowed a certain creek, on the banks of which defendants maintained a dairy, and that offal from the dairy yards flowed into the creek. Held, that under Civ. Code, § 3493, providing that a private person cannot abate a public nuisance unless it is especially injurious to him, the complaint did not state a cause of action.

2. Findings by the court that the act of defendants in conducting a dairy polluted a stream at the point where the dairy was situated, and, if continued, "may pollute the waters" of plaintiff's reservoir, did not show a nuisance within Civ. Code, § 3479, defining a nuisance as "anything which is injurious to health, or is indecent or offensive to the senses.

or an obstruction to the free use of property, so as to interfere with the free use of property," and did not support a judgment abating the dairy as a public nuisance.

3. Pen. Code, § 374, declaring pollution of streams to be misdemeanors, has no application to a civil action to abate a nuisance alleged by the pollution of a stream.

Department 1. Appeal from superior court, city and county of San Francisco; Jas. M. Troutt, Judge.

Bill by the Spring Valley Waterworks against W. J. Fifield and others. From a decree for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Ben Morgan, for appellants. Edward F. Fitzgerald (M. B. Kellogg, of counsel), for respondent.

GAROUTTE, J. This action is brought to abate an alleged public nuisance. The complaint, in substance, states that plaintiff is the owner of the Crystal Springs reservoir; that water is furnished therefrom for the use of the inhabitants of the city of San Francisco; that the waters of San Mateo creek flow into this reservoir; that defendants maintained and are now maintaining and conducting a dairy business upon the borders of the aforesaid creek, and that the offal drainage from the dairy yards flows into this creek. As a result of the trial, this dairy business of defendants, as SO conducted upon the banks of the stream, was declared a public nuisance, and ordered abated. The present appeal is taken from the judgment, and also from the order denying a motion for a new trial.

The complaint does not state a cause of action against defendants which justifies plaintiff in invoking the aid of a court of equity for relief. Section 3493 of the Civil Code provides, "A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." There is no allegation in this complaint which shows that the alleged nuisance is specially injurious to plaintiff. A bald allegation of that fact is insufficient, for it is a mere conclusion of law. When a private individual seeks to abate a public nuisance, he must allege specific facts showing that the maintenance of the nuisance results in special injury to him. By construing the allegations of the complaint broadly, it may be admitted that the waters of the creek are polluted by this drainage at the point where the dairy is situated; but there is no attempt made by the pleader to allege that these waters of the creek are polluted at the reservoir by reason of the aforesaid drainage. There is no allegation even showing the distance that the dairy is situated from the reservoir. Perchance it may be 20 miles away. Perchance the waters in transit between the dairy and the reservoir may become absolutely pure by reason of natural filtrations. It follows

from what has been said that, in the absence of an allegation to the effect that the waters of the reservoir are polluted by reason of the location of this dairy upon the banks of San Mateo creek, there is nothing in the pleading showing special damage to plaintiff, and for this reason the complaint does not state a cause of action in its favor.

The court made findings of fact to the effect that the acts of defendants in conducting the dairy business as it was conducted resulted in a pollution of the waters of San Mateo creek at the point where the dairy was situated; and the court further found as a fact that, if the acts of defendants were continued, then this drainage "may pollute the waters of said reservoir." Now, counsel for plaintiff has not pointed out any evidence in the record which even tends to support this rather equivocal finding, and this finding is the only one that in any way connects the acts of defendants with the pollution of the waters of the reservoir. Mr. Schussler, the chief engineer of the plaintiff, and the only witness testifying as to the condition of the waters of Crystal Springs reservoir, in answer to the following question, "Do you know what the condition of this water is in the reservoir, either at San Andreas or Crystal Springs, as to pollution or nonpollution?" said, "It is nonpolluted in either reservoir." But, even closing our eyes to the evidence, and passing to the findings, we find them too weak to support a judgment abating defendants' dairy business as a public nuisance, for no special injury is shown to plaintiff. Indeed, it is not shown by the findings that the acts of defendants have resulted or will result in any injury to plaintiff at all. It is a serious matter to destroy the business of defendants by judicial decree, and it cannot be done upon the mere surmise that certain of their acts may injure plaintiff. Both the evidence and the findings should be certain and specific to the effect that the acts of defendants do injure plaintiff. A nuisance is defined as "anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use in the customary manner of any navigable lake," etc. Section 3479, Civ. Code. In this case there is no finding of fact filling the measure furnished by the aforesaid section of the Civil Code defining a nuisance. Much stress is laid by respondent's counsel upon section 374 of the Penal Code, but the court does not see its application to this case. That section declares various acts bearing upon the pollution of certain classes of streams of water constitute a misdemeanor. If these defendants were being prosecuted by the people of the state under that section of the Penal Code, then its provisions could be invoked, but in litigation involving the abatement of a nuisance it has no direct bearing.

1. Pinze by the trial court on co.dicting STE ... A e distorted on appeal. 2. Paint wed to declare a partnership in Ti..i alleged to arise from an agreement with a derment, but did not sne bis estate, so that Code Civ. Proc. 1880, forbidding a party to testify on a claim against the estate of a densavel to matters arising before his death, did we appits, and plaintiff testified to the agreement stating that no one else was present. A witome, to impeach plaintiff, was asked if he had not stated that he had no agreement with decedent, but expected witness to do the right thing. "or words to that effect." Held that, while technically the question might be objectionable, as differing from the quesfon asked plaintiff, the rule should not be rigidly enforced, since the rules permitting plaintiff to testify were liberal.

Department 1. Appeal from superior court, Amador county; R. C. Rust, Judge. Proceedings by Joseph Bernardis against Annie E. Allen and others. From a judg ment for defendants, and from an order denying new trial, plaintiff appeals. Affirmed.

Edward Lynch, John F. Davis, and D. L. Donnelly, for appellant. Wm. J. McGee and C. P. Vicini, for respondents.

VAN DYKE, J. Suit was brought to declare a partnership in the Maximilian mine, situated in Sutter Creek mining district, Amador county, arising from the development thereof, and for an accounting of the proceeds of the sale of said mine. Judgment went for the defendants in the court below, from which, and an order denying plaintiff's motion for a new trial, the appeal is taken. In 1893, and prior thereto, George Allen, now deceased, owned the mine in question, containing about 8% acres of surface, with a 1,500 foot lode, and the plaintiff, by permission of Allen, prospected the mine, and in May, 1894, entered into an agreement in reference to the working of the same, which the plaintiff claims to have been a partnership agreement, but on the part of the defendants it is contended to have been an agreement to allow the plaintiff, as a practical miner, to work the mine, furnishing the mill, machinery, and implements for that purpose, and paying all expenses, and, if anything should be realized over such expenses, that the net proceeds, if any, should be divided between the plaintiff and the owner of the mine. The court found, on all the issues presented, against the claim of the plaintiff, in

reference to a partnership. The mi az bention on the appeal is that the flings are Aot supported by the evidence. The er dence is quite voluminons, but we bite EIanted it quite carefully, and the most that an be wid in favor of appellant's esatention is that there is a substantial acfix in reference to the alleged partnership; and in sock case it is a rule of this court, so well recognized as not to require eases to be cited, that the findings must be allowed to stand.

Many errors are assigned by appellant in the admission of evidence and refusal to strike out evidence. Those urged on the appeal relate mostly to impeaching evidence, and particular stress is laid upon the quesCons pot to the impeaching witness, the following being a sample: "Q. Mr. Cleveland, about July, 186, at the Maximilian mine, in the presence of yourself and Mr. Bernardis and Rolly Noe, did Mr. Bernardis tell you that he had just had George Allen's word to work the mine; he had no agreement or arrangement with him. but that Bernardis expected Allen to do the right thing with him if he sold the mine, or words to that effect?" The objectionable part of the question, as contended by appellant, is adding "or words to that effect." In reference to the rule of impeachment of a witness by contradictory evidence, the appellant may be technically correct in his contention that the same question should be propounded to the impeaching witness, without the addition of other words. as those asked the witness to be impeached; but in this case, however, the witness sought to be impeached was also a party in interest. By the liberal rules of the Code, parties to an action, with certain exceptions, are allowed to testify in their own behalf. One of the exceptions in which they cannot testify is where the action is "upon a claim or demand against the estate of a deceased person, as to any matters of fact occurring before the death of such deceased person." Code Civ. Proc. 1880. In this case the action, not being technically founded upon a claim | against the estate of George Allen, deceased, the plaintiff was permitted to testify. In his testimony, in reference to the alleged agreement between himself and George Allen, deceased, he repeats several times that "no one else was present." Thus he is given full sweep to give his version of the transaction, whereas the lips of the other party to it are sealed in death. The purpose of the rule excluding the testimony of a party, where the action is founded upon a claim or demand against the estate of a deceased person, is very obvious. It was greatly to the advantage of the plaintiff that he was not excluded from being a witness in his own behalf, and under such circumstances rules in reference to the admission of evidence should not be too rigidly enforced. Such rules are designed to aid in arriving at the truth, and not for the purpose of suppressing the truth. Aside from the question of impeachment,

(Supreme Court of California. March 10, 1902.)

EXECUTION SALE-NOTICE-SUFFICIENCY-AC-
TION AGAINST OFFICER FOR PEN-
ALTY-DEFENSES.

1. An action against a constable and his sureties to recover the penalty and damages for selling personal property on execution without giving the notice required by law, implies, and for its maintenance requires, a valid execution, and an objection by plaintiff that the execution is void cannot be heard.

2. Code Civ. Proc. § 12, providing that the time in which any act required by law is to be done is computed by excluding the first and including the last, applies to a notice of sale on execution, and where notice was given February 20th, and sale made as advertised February 25th, there was a compliance with the statute requiring five days' notice.

Department 2. Appeal from superior court, Solano county; A. J. Buckles, Judge.

Action by Harry Bellmer against James Blessington and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Kierce & Gillogley, John T. Ryan, E. L. Foster, and T. F. Bachelder, for appellant. George A. Lamont and Frank R. Devlin, for respondents.

TEMPLE, J. This action is based upon section 693, Code Civ. Proc., and is against a constable and his sureties, to recover the penalty and damages for selling personal property belonging to the plaintiff, under a writ of execution, without giving the notice required by law.

It is contended by plaintiff that the execution was void, because not dated, but this point will not be further noticed than to say that the action implies, and for its maintenance requires, a valid execution, and the point is, therefore, as to plaintiff's case, felo de se.

Five days' notice is required by the statute. The notice was posted on February 20th, and the sale was made as advertised on February 25th. If section 12, Code Civ.

days' notice. That it is applicable was held in Misch v. Mayhew, 51 Cal. 514. That was an election contest. The Code required each party in such contest to give his opponent a written list of the illegal votes he would attempt to prove at least three days before the trial. Defendant served his list on the 7th of December, and the trial commenced on the 10th of the same month. The trial court held that this was not sufficient notice, and excluded the evidence offered. In reversing this ruling this court said: "The language of section 1116 of the Code of Civil Procedure, which fixes the time when the list of alleged illegal votes shall be served, is equivalent to a requirement that the opposite party shall have three days' notice of the illegal votes which the party serving the list expects to prove at the trial. The case is, therefore, covered by section 12 of the same Code, and a list served on the 7th of December could properly be relied upon and proven in the trial on the 10th of December." Section 12 provides that the time in which any act provided by law is to be done is computed by excluding the first and including the last, etc. It was contended that this rule only determines the time for which notice must be posted, and that the sale could be made only after the full period required for the notice had expired. For instance, the 20th, on which day the notice was posted, should be excluded, and to give five full days' notice after that would require all of the 25th, and the sale could not legally take place until the 26th, for which day the notice should have been given. I think the point squarely determined by the case cited, which was affirmed in Hagenmeyer v. Board, 82 Cal. 214, 23 Pac. 14; Landregan v. Peppin, 86 Cal. 126, 24 Pac. 859; Derby & Co. v. City of Modesto, 104 Cal. 522, 38 Pac. 900; Bates v. Howard, 105 Cal. 182, 38 Pac. 715.

Of course, where the law fixes the time within which an act is to be done, all of the last day of that period is within the time, and a default for not doing the act could only be taken on the next day. How this rule would apply, or whether it was applicable at all, to the different case, where notice for a definite period was required before an act could be done, was at least doubtful before these decisions.

The rule having been thus established, however, there is no occasion now to depart from it. If the rule of section 12 does not apply to the case it might well be argued that the first day of posting is not excluded in determining the length of the notice.

This point being decided against the plaintiff, his action must fail, and the judgment be affirmed, without reference to other questions discussed.

Judgment and order are affirmed.

PROCEEDINGS TO DETERMINE HEIRSHIP-UNPROBATED

WILL-ADMISSIBILITY-PROBATE OF A WILL-CONVERSION OF PROCEEDINGS -INSTRUMENT ATTACHED TO PLEADINGDENIAL OF ITS EXECUTION.

1. In a proceeding to determine heirship under Code Civ. Proc. § 1664, authorizing an action to determine the rights of all persons to the estate of a decedent, evidence of the execution of decedent's olographic, unprobated will, under which certain persons claim an interest in his estate, is properly excluded.

2. A proceeding under Code Civ. Proc. § 1664, authorizing an action to determine the rights of the heirs of a decedent, cannot be converted into a hearing for the probate of a will of the decedent, for section 1299 et seq., relating to the probate of wills, provide for the only procedure under which a will can be probated.

3. In a proceeding to determine heirship under Code Civ. Proc. § 1664, authorizing an action to determine the rights of the heirs of a decedent, an unprobated will of decedent, set forth in a defendant's pleading, is not an instrument upon which a defense could be founded, so as to require the plaintiff to deny its execution, as required by Code Civ. Proc. § 448, requiring plaintiff, unless admitting the execution of an instrument pleaded by defendant, to file an affidavit denying the same.

Department 2. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge. Proceedings by Jacobsen and others against Norton and others to determine the heirs of Peter Christensen, deceased. From a judgment that plaintiffs were the true heirs of deceased, Plotz and others, a part of the defendants, appeal. Affirmed.

A. V. Scanlan and James H. Budd (C. H. Fairchild, of counsel), for appellants. Loewy & Gutsch and Budd & Thompson, for respondents.

MCFARLAND, J. The above plaintiffs, having instituted proceedings under section 1664, Code Civ. Proc., to have the rights of all claimants to the estate of Peter Christensen, deceased, adjudicated, and all preliminary steps having beer properly taken, on June 3, 1899, filed their complaint, in which they averred that said decedent died intestate, and that they (setting up the facts constituting their claims) were entitled, as heirs, to all his estate. A number of persons were brought in and made defendants as claiming some interest in the estate. The defendant Norton was administrator, and filed an answer, in which he claimed no interest in the estate but merely prayed that the court determine to whom distribution thereof should be made, and for his costs, etc. Other defendants, who may be designated as Anderson, Christensen et al., filed answers, in which they also claim to be the heirs of the decedent, and entitled as such to his estate, setting up the facts constituting their respective claims. The con

test between these defendants and between them and plaintiffs were fully heard and determined, and the court found that the plaintiffs were the true heirs, and that neither of said defendants had any ownership or interest in the estate, and rendered judgment for plaintiffs. Said defendants have not appealed. The defendants Plotz, Doan, and Jessen, who were also defendants, and have appealed from the judgment and from an order denying their motion for a new trial, filed an answer, in which they denied the intestacy of the decedent, and alleged that on February, 5, 1898, he made an olographic will, which they set out in the answer, under which they claim part of the estate as devisees under said will. There is 'no averment in the answer that the alleged will had been admitted to probate, or that any steps had been taken to have it probated. In the prayer they ask "the judgment of this court that said will be declared to be the last will and testament of Peter Christensen, deceased, that it be admitted to probate, that letters of administration with said will annexed issue to the one entitled thereto," etc. It appears in the statement on motion for a new trial that "it was announced on behalf of John Plotz, D. M. Doan, and Louis Jessen that they do not desire to participate in the trial of the question as to who were the heirs of Peter Christensen; and they did not participate in the trial of such question"; and "that said findings as to the matter of heirship are and were abundantly sustained by the evidence and the defendants Plotz, Doan, and Jessen do not attack such findings as to the matter of heirship on this motion or otherwise." After the evidence as to the issues between all the other parties had been closed, counsel for the appellants addressed the court, saying that he was doubtful as to what course his clients should pursue, and that he was there "for such steps as the court and counsel on both sides deem proper to take," and that, "of course, whatever the ruling of the court is, we shall put in an exception." After some conversation between court and the counsel, counsel for appellants called a witness, and offered to prove the execution of the will by showing by the testimony of the witness that it was in the handwriting of the decedent. To this testimony, and to some other evidence, which merely went to show former proceedings in the administration of the estate, counsel for respondents objected upon the ground that an unprobated will could not be admitted in evidence, and that in this proceeding the court had no jurisdiction to entertain the question whether the instrument was a will upon evidence other than its probate, nor, the statutory notices and proceedings for the probate of a will not having been given or taken, to then and there enter upon the matter of admitting the will to probate. The objection was sustained, and appellants excepted.

This ruling of the court was not erroneous.