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VOL. I.

MAY 4, 1878.

No. 6.

Legal Notes.

ADMITTED TO PRACTICE.—Chas. B. Fitzpatrick was admitted on April 25, to practice in the Supreme Court, on motion of D. W. Welty, and license from the Supreme Court of Arkansas. And on April 30th, Peter S. Wilkes of Stockton, on motion of Matt F. Johnson, and license from the Supreme Court of Missouri;--and William Allen Johnson, also on motion of Matt F. Johnson, and license from Supreme Court of Michigan.

REHEARING GRANTED.-On April 29th and 30th, the Supreme Court decided to grant a rehearing in the case of Hagor vs Spect,--reported in RECORD of March 30th,- and, of Siew vs Kimner, 'ard Doid:n's:Clark, reported in RECORD of April 6th;—and of Zeinwaldt vs: Saci City Räilivay Co., reported in RECORD of April 13th;--and also of Winter vs. Belmont Mining Co. In Dowd vs. Clark the rehearing will be confined to the question*as to the interest since the tender.

WORK AHEAD.-Our Supreme Court has been working so rapidly and efficiently during the April term at Sacramento, that we have been obliged, not only to omit for the presents the publication of all foreign decisions——including an important one on file from the U. S. Circuit of Oregon, involving the landed rights of British subjects under the treaty of '46;-but are under the necessity of deferring for one more week the very interesting opinion on the “Mahoney Mining Co. vs. Samuel Bennett,” by Judge Sawyer of our.own U.S. Circuit; also several important land decisions. And we still have on file, for the earliest possible publication, 21 written opinions, and 56 unwritten decisions of our Supreme Court, which we hope to achieve in two or three more issues. We vote for the Court vacation which continues two months; the next term to commence in San Francisco on July 8th.

Supreme Court of California.

(April Term, 1878.]

(No. 5425.)
[Filed April 18, 1878. ]

DYER vs. BARSTOW.
Appeal from Third District Court, San Francisco, S. B.

MCKEE, Judge. STREET ASSESSMENT CONTRACT FOR GRADING---ACT OF APRIL 4, 1870 Con.

STRUED.--The contract being made before the act, and the assessment after, --could the contractor, or the city, maintain an action. -Held, that sec. 13 of said Act provides that the Act shall not be construed as "applicable" to previous contracts or the remedies for their enforcementhence the contractor might maintain action as though the Act of 1870 had never passed.

STATEMENT OF FACTS.

Action commenced December 2, 1875, by James S. Dyer, to recover $5,191,69 due on delinquent assessments for grading Vallejo street, from Webster to Pierce, -case tried without jury.august 28,. 1876, and.judgraeat for plaintiff, for $8,825.86 prineipai and interest, to be-apportioned among the defendants, George Barstow and others, in proportion to original indebtedness. Bill of ex. ceptions filed, and appeal taken by defendants, December 2, 1876.

J. C. Bates, attorney for plaintiff and respondent.
M. A. Edmonds, attorney for defendant and appellant.

The other necessary facts appear in the opinion.

OPINION BY THE COURT. Dyer vs. Pixley, 44 Cal., 158, was an action by the contractor to recover a street assessment, under a contract entered into in the year 1869, the diagram, assessment and warrant having been issued and recorded in July, 1870. The facts were precisely analagous to those involved in the present case, which is also an action by the contractor founded on a contract made in 1869, the diagram, assessment and warrant having been issued in November, 1870. In each case the contract was made before and the assessment after the passage of the act of April 4, 1870 (Statute 1869–70, p. 890). In the former case the point was made that the assessment having been made and issued after the passage of the act of 1870, the action could not be maintained by the contractor, but only by the city'and county of San Francisco, as authorized by that act. But the thirteenth Section of the act provides that the

act shall not be construed so as to "affect any contracts heretofore awarded or assessments issued." In construing this clause we held its correct interpretation to be that the act should not be construed as "applicable" to previous contracts, or the remedies for their enforcement, and consequently that the contractor might maintain the action as though the act of 1870 had never passed. We see no reason to doubt the correctness of this ruling and we think it is decisive of the present action.

Judgment affirmed. Remittitur forthwith.

[No. 5869.)

[Filed April 19, 1878.)

WANZER vs. SOMERS.

An appeal from Seventeenth District Court, Los Angeles Co.,

SEPULVEDA, Judge, Liro LANDS_CONTESTED PURCHASE-The defendant's application, when filed

on June 12th, 1868, was defective from repeal of act under which it was commenced. But, the Legislative Act of 1870 intervened before filing of application of plaintiff, in 1875,-hence, Held that the curative statute of March 24th, 1870 made the defendant's application validhowever defective--and he was therefore entitled to purchase the land from the State.

STATEMENT OF FACTS.

This action arises froin a contest in the State Surveyor General's office, on application to purchase certain Lieu Lands in Los Angeles County.-W. F. Somers, defendant, made application March 30, 1868, to the State Locating' Agent for the land, under Act of April 27, 1863, by affidavit, supported by those of three witnesses—which was accepted April 20, on condition of approval by the U. S., and the papers were filed with the State Surveyor General on June 12, 1868. The land was transferred to the State December 1, 1871-the defendant's location was approved by the Surveyor General January 21, 1873, and he made the twenty per cent. payment of purchase money to the County Treasurer, and received certificate of purchase March 14, 1873,--and on March 15, 1875 paid in full, and applied for a patent. And now, on December 21, 1875 Jas. 0. Wanzer, plaintiff, made application, for same land, -paid the proper fees, and the Surveyor General received and filed same in his office, --and on December 22, protested against the issuance of patent to Somers--and demanded a hearing before the proper tribunal. Whereupon the Surveyor General on May 3, 1876, referred it to the Seventeenth District Court, where it was tried May 21, 1877 upon the following issue:-On May 28, 1868, about one month after the acceptance of Somers' application, - and before the filing with the Surveyor General,-a change was made in the inanagement of the State Lands by the Locating Agents, by repeal of the acts of 1858 and 1863; and under the new provision of March 28, 1868, taking effect May 28,Somers' original papers became insufficient—although his subsequent proceedings appeared to be correct. Judgment was rendered for plaintiff, declaring defendant's application void, and decreeing the cancellation of certificates of purchase and authorizing the purchase of the land by Wanzer. From this defendant appealed, October 13, 1877, claiming relief under the act of March 27, 1872, and the legalizing act of March 24, 1870. Wanzer's application was not made until after both acts had taken effect.

Blanchard & Van Fleet and Howard & Hazard, attorney for plaintiff and respondent

Jno. D. Bicknell, attorney for defendant and appellant. Thos. A. Brown, of counsel for defendant and appellant.

OPINION BY THE COURT. We shall assume that the acts of defendant looking toward the acquisition of title prior to June 12, 1868, when his application was filed in the Surveyor-General's office, are not to be considered as in any way strengthening his claim.

But that application, however defective, was made valid and effectual by the curative statute of March 24, 1870. The plaintiff's application was not filed until after the last named date. When therefore the defendant made application there were not “two or more applicants for the purchase of the same land or conflicts between claimants."

The defendant is therefore entitled to purchase the land from the State.

Judgment reversed and cause remanded with directions to the Court below to enter judgment for defendant.

[No. 5491.)
(Filed April 20, 1878. ]

SHAFTER vs. EVANS.
Appeal from Seventh District Court, Marin County.

JACKSON TEMPLE, Judge.
NEOLIGENCE-EVIDENCE OF.-When circumstances tending to show negligence

are proved, the fact of negligence must be inferred from those circumstances, by the jury. It is not to be established by the mere opinion of witnesses; nor by experts. Hence, Held, that the evidence of the witnesses testifying to their opinion of the safety of the corral was inadmissible, and should have been excluded.

STATEMENT OF FACTS. The plaintiff James McM'Shafter, and one Howard, for whom defendant William Evans, was acting as agent, owned adjoining lands at Baulinas on the ocean shore.

Defendant had a corral on the ocean bluff, fenced on the other three sides bat not on the bluff, which was 50 feet high, and nearly perpendicular. Into this corral, defendant drove 250 certain cattle to separate, and among them 35 head of plaintiff's young cattle, which had got through the defective fence; and they were left in over night, without a watch-after notifying defendant of the fact. In the morning 29 of the 35 were found killed, and ruined, by going over the bluff, for which plaintiff brings suit for $725. Tried by jury, and verdict for defendant for his costs, $97.75. Motion by plaintiff for new trial on full statement and argument, but over-ruled. Plaintiff appeals December lst, 1876, from judgment and order. The law points in contest, appear further in the opinion.

Jas. McM’Shafter, attorney for plaintiff and appellant.
T. H. Hanson, for defendant and respondent.

OPINION BY THE COURT.

The ultimate question in issue at the trial was whether it was an actionable negligence in the testator of these respondents to cause the cattle of the plaintiff to be driven into the corral, under the circumstances alleged. When those circumstances were established by proof, the ultimate fact of negligence on the one hand, or ordinary care upon the other, was a matter to be inferred by the jury. The ultimate fact of negligence in such a case, is not one to be established by the mere opinion of witnesses called to testify. The evidence of experts is not admissible. A clear expression of this principle is found in New England Glass Company vs. Lovell, 7 Cush.R. 321, where Chief Justice Shaw observes as follows: "In applying circumstantial evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two distinct duties to perform: First, to ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the fact in issue. This inference depends upon experience. When this experience is of such a nature that it may be presumed to be within the common experience of all men of common education, moving in the ordinary walks of life, there is no room for the evidencs of opinion; it is for the jury to draw the inference."

These views were subsequently adopted and applied in the case of White vs. Ballou, 8 Allen R., 408, where the general question was one of negligence in kindling a fire under certain circumstances appearing in proof.

For these reasons we are of opinion that the evidence of the witness Parsons and others, testifying to their opinion of the safety of the corrall, was inadmissible, and should have been excluded.

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