Opinion
Department One
Hearing In Bank Denied.
Beatty, C. J., Dissented from the Order Denying a Hearing In Bank.
Appeal from a judgment of the Superior Court of Humboldt County, and from an order denying a new trial.
COUNSEL
The city had the right to fill the streets to the established grade, and if in consequence of so doing water collected in ponds or pools on the adjoining lots, which were thus brought below the level of the streets, the city would not be liable for damages thereby occasioned. (Wilson v. Mayor of New York , 1 Denio, 595; 43 Am. Dec. 719; Mills v. Brooklyn , 32 N.Y. 489; Gould v. Booth , 66 N.Y. 65; Clark v. Wilmington, 5 Harr. (Del.) 243; Baxter v. Tripp, 12 R.I. 310; Dillon on Municipal Corporations, 3d ed., sec. 1051.) The court did not err in allowing defendant's attorney to sign the statement and in allowing the prayer to be added. (Code Civ. Proc., sec. 473; Hayne on New Trial and Appeal, sec. 160, and cases there cited.) The statement shows that it was to be "used on a motion for a new trial." The court denied the motion, and the presumption must be that it was made on the statement settled by the court for that purpose. (Pico v. Cohn , 78 Cal. 384.)
J. N. Gillett, for Appellant.
E. W. Wilson, and J. W. Turner, for Respondent.
The statement cannot be considered, as it does not appear by the indorsement of the judge thereon that the so-called statement was used or identified as used upon the motion for a new trial. (Jue Fook Sam v. Lord , 83 Cal. 159; Mix v. San Diego, R. R. Co ., 86 Cal. 235.) It is also insufficient because it does not contain, nor purport to contain, as it must, all, or the substance of all, the evidence introduced upon the trial of the cause. (Paris v. Raynor , 76 Cal. 647; Brown v. Casey , 80 Cal. 504.) The alleged statement was not prepared or served within the time allowed by law. (Landers v. Lawler , 84 Cal. 547; Hayne on New Trial and Appeal, sec. 160; Bunnel v. Stockton , 83 Cal. 320; Stonesifer v. Armstrong , 86 Cal. 594.) The complaint states a cause of action. (Conniff v. San Francisco , 67 Cal. 45; Spangler v. San Francisco , 84 Cal. 12; 18 Am. St. Rep. 158; City of Richmond v. Long's Adm'r, 17 Gratt. 375; 94 Am. Dec. 461; Barnes v. Dist. of Columbia , 91 U.S. 540.) The question asked of the witness as to what would have been the condition of the plastering in the building if the building had settled was not a proper subject of expert evidence. (Protection Ins. Co. v. Harmer, 2 Ohio St. 455; Sowers v. Dukes , 8 Minn. 23; Fraser v. Tupper , 29 Vt. 409.)
JUDGES: Paterson, J. Harrison, J., and Garoutte, J., concurred.
OPINION
PATERSON, Judge
This is an action to abate a nuisance and to recover damages occasioned by the obstruction of a natural watercourse flowing across the plaintiff's land. The obstruction complained of consists of an embankment erected in grading a street in the city of Eureka across the natural watercourse referred to.
A motion was made to dismiss the appeal, but the same was denied (92 Cal. 64), the court saying: "Any defects alleged to exist in the statement of the case will be considered when the cause comes before us upon its merits." It is urged that the statement ought not to be considered, because it does not appear by any indorsement of the judge thereon that it was used on the hearing of the motion for a new trial, and that it does not contain or purport to contain all the evidence. Neither of these objections is well taken. The statement appears to have been duly presented, settled, and allowed by the court. It is a part of the record, and we must presume that it was used on the hearing of the motion, there being nothing to the contrary shown. There is no merit in the contention that the statement does not contain all the evidence. The certificate of the judge that the statement is correct is sufficient.
It is also contended that the statement was not authenticated. This contention is based upon the fact that it was not signed by the moving party or his attorneys. Objection was made on that ground to the settlement of the statement, whereupon the attorneys for the moving party asked permission to amend the statement by signing the same. This request was granted, and properly so. The statement, as presented to the attorneys for the respondent, was indorsed, "Defendant's statement of the case," and service thereof was accepted without objection. The attorneys for the respondent could not have been misled by the omission.
It is claimed, also, that the court erred in allowing the moving party to insert in the proposed statement a request for its settlement and allowance. If such matter was essential to the validity of the statement, there was no error in the ruling of the court, although the amendment was made after the time for filing the statement had expired. (Low v. McCallan , 64 Cal. 2; Macadamizing Co. v. Williams , 70 Cal. 538.)
It was alleged in the complaint that the waters which were caused to be thrown back upon plaintiff's property by the embankment in the street were the waters of a natural watercourse. The answer, in effect, admitted that there had been a natural watercourse across plaintiff's property, but averred that "for a long time prior thereto it had and now has no defined course or channel by reason of the improvements made in said city; that lots over and through which it formerly passed had been filled in, and buildings have been constructed thereon; that streets have been graded over and along said water-way, and the water flowing therein now runs through culverts and in sewers."
Upon the issue thus raised there was a sharp conflict of evidence. If it was a natural watercourse, the city was not authorized to place any obstruction across the channel without taking the necessary precautions for the escape of the water flowing therein. There is evidence tending to show that the city attempted to do this by the construction of a sewer, but the evidence on behalf of the plaintiff tended to prove that this sewer had been changed or abandoned, and that no proper channel of escape had been provided in lieu thereof. The charge of the court to the jury is not in the record, and we must presume that proper instructions were given upon all matters connected with the subject of the action.
[31 P. 459] We do not think the court erred in sustaining the objection to the question, "Now, in your opinion, as an expert, would that plastering be in the condition that you found it had the building, since the plastering was placed there, settled six or seven inches?" It must be apparent to any one that the plaster of a building which has settled six or seven inches cannot be in the condition that it was before it settled.
There are other exceptions argued by counsel for appellant, but we do not deem it necessary to discuss them in this opinion. We have examined them, and think there is no merit in any of them.
Judgment and order affirmed.