straining dams across Mormon channel below the point where defendant has been excavating and east of Center street. The effect of these dams has been to make a restraining basin of Mormon slough above the points where they were erected. The street from which the earth was removed crosses the slough, but has not been used as a highway for the reason that it has never been bridged. The blocks of land described in the complaint, in front of which the digging was done, are owned by the plaintiffs. The defendant claims the right to remove the earth under a resolution of the city council and a permit from the board of public works.

It is claimed by the appellants that the resolution of the city council and the permit given by the board of public works are void; that the work should have been done in accordance with the act of March 23, 1872, (St. 1871-72, p. 540;) but that, if the council or board of public works is clothed with the right to authorize the removal of earth from the streets, such authority can be granted only by ordinance. We do not think the contentions of the appellants are sound. The charter of the city of Stockton, approved by the legislature March 2, 1889, (St. 1889, p. 577,) provides: "Sec. 30. The council shall have power to pass ordinances

* (9) to regulate, under the superintendence of a board of public works, the moving and anchoring of vessels within the waters of the city, and to prevent obstruction to the free navigation of the same." Section 147 provides that "the department of streets and wharves shall embrace the control of the water front and wharves; of the streets, sidewalks, bridges, and public thoroughfares; # of the water courses

and channels within the city; * ** and of everything of a public nature pertaining to said subjects." The mayor, the city surveyor, and the superintendent of streets constitute the board of public works, and are designated as the "department of streets and wharves," and it is their duty to see that the water courses and channels are not obstructed by anything which will cause the waters thereof to overflow and injure or destroy the public streets or property of the city. The fact that the filling of the streets in front of plaintiff's land is a benefit to the land is immaterial. The city has the right to have the waters flow through the channel without interruption or obstruction, and to as full an extent as when Capt. Weber, who owned the entire site of the city by grant from the Mexican government, transferred the streets and squares to the city, (in 1851.) The streets were conveyed by him to the city authorities without any reservation, and with reference to a map made by him in 1850, in which Mormon channel was de lineated from the western to the eastern limits of the city. Those who framed the charter doubtless saw that, if the board of public works were required, in the exercise

of their authority, to proceed under an ordinance of the city council, great damage to the property of the city and its residents might be caused by obstructions in the water courses within the city. Authority was expressly conferred upon the board, therefore, to act in respect to the control and protection of water courses and channels directly, and no ordinance was necessary in the case at bar. The act of March 23, 1872, was intended to provide against overflow by authorizing the city authorities to widen and deepen the channel of Mormon slough from Hunter street, a distance of five miles easterly. The act provides for condemnation proceedings, but it is not contended in this case that the respondent has removed, or attempted to remove, any portion of the land belonging to plaintiffs, or has attempted to widen or deepen the channel. All defendant pro

poses to do is to remove a deposit of earth which has partially filled up the channel, and which, if allowed to remain, will tend to cause an overflow of the waters, and an injury to property of the city. The fact that the deposit is due in whole or in part to the acts of the United States government in improving the navigable portion of the stream below is immaterial. The city has the right to remove obstructions from a natural water course, so as to preserve it in its natural form, without regard to the cause of such obstruction.

The judgment is affirmed.

(4 Cal. Unrep. 4) (No. 15,040.)

HAMLIN v. PHILIPS. (Supreme Court of California. June 6, 1893.) REVIEW ON APPEAL.

Where, in an action to establish a trust, the findings controvert plaintiff's claims at all points, and there is evidence to support the findings, a decree for defendant will not be set aside except on the most satisfactory and convincing grounds.

Department 1. Appeal from superior court, Sonoma county; R. F. Crawford, Judge.

Action by Catherine Hamlin against Nancy M. Philips, and Nancy M. Philips as administratrix of the estate of P. J. Philips, deceased, to establish a trust in certain real estate. From a judgment for defendant and from an order denying her motion for a new trial, plaintiff appeals. Affirmed.

R. P. Clement, A. G. Burnett, and T. J. Geary, for appellant. J. W. Rose and Barham & Bolton, for respondent.

GAROUTTE, J. This action was brought to obtain a judgment and decree that the land described in the complaint, the title to which stood in the name of P. J. Philips at the time of his death, and also certain personal property, was the property of the plaintiff, and that P. J. Philips, deceased, was her trustee, and that his estate had no right or interest in said property, or any part thereof. Judgment went for defendant, and

this appeal is taken from the judgment and order denying a motion for a new trial. The findings are full and complete: They controvert the claims of the plaintiff at all points, and warrant the judgment rendered. It is now insisted that the evidence does not support the findings. We have examined with great care the record containing a detailed statement of the evidence given at the trial, and find ample there to justify the findings of the court. The plaintiff is a sister of Philips, deceased. She was about 77 years of age at the date of the trial, and was the principal witness in the case. She was a woman of means, and advanced money to her brother for various purposes. The property involved in this litigation was purchased with this money, and the title taken in the name of Philips. The administratrix of the estate now insists that the money was a loan, and plaintiff claims that it was invested for her benefit, and that the title to the property purchased was held by Philips in trust for her. Plaintiff's testimony is selfcontradictory in many respects, apparently attributable to weakness of memory, but sufficient is found therein to support defendant's theory of the case, that the money was advanced to plaintiff's brother as a loan. It is not necessary to enter into a review of the evidence in detail for the purpose of indicating in this opinion wherein it supports the findings. Upon a careful examination of the record, the fair import of all the evidence, taken together, is in line with the findings and judgment of the court. The arguments of the learned counsel for appellant as to the improbability of these advances being made by her as loans, and as to the inferences of fact that may be drawn from the rather peculiar circumstances of the case, might well have been addressed to the trial court before final judgment rendered, and also upon the hearing of the motion for a new trial. Such arguments necessarily possess much greater force and weight when addressed to the court of original jurisdiction than when directed to the appellate tribunal. The case is essentially one wherein it devolved upon the trial court to carefully sift and weigh the evidence, and where this court would not be justified in setting aside a decree made in the exercise of that power and that duty, unless upon the most satisfactory and convincing grounds.

For

a "public" cemetery. Section 3106 declares a place where six or more bodies are buried "a cemetery." Section 3 declares no part of the Code retroactive, unless so expressed. Held, that title to land which had ceased to be used as a public cemetery before enactment of said sections was not affected thereby, but remained in the original owner; and that upon abandonment for cemetery purposes, and removal of bodies, the title would be discharged from such use.

2. The owner whose land had been used for some years for cemetery purposes conveyed same to a city for nominal consideration, provided the city obtain authority from the legislature, and remove the dead therefrom within certain time; said city to preserve the land as an ornamental public square, or use it for erection of public buildings, with reverter to the grantor in case of sale or otherwise to private uses. Held, that abandonment of the land for cemetery purposes and removal of the bodies was a condition precedent to the vesting of title.

3. Such a condition was not void as in contravention of Const. art. 4, § 25, subd. 7, forbidding special legislation, since, if other and general legislation could not be obtained, it made the condition simply impossible, not unlawful.

Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county; Ansel Smith, Judge.

Action of the city of Stockton against Helen Weber, Charles M. Weber, Jr., Thomas J. Weber, and Julia H. Weber. Judgment for defendants. Plaintiff appeals. Affirmed.

Swinnerton & Rutherford, for appellant. James H. Budd, for respondents.

HAYNES, C. This action is brought by the city of Stockton to quiet title to "block 237, east of Center street," in said city, which, prior to 1872, was outside the city limits. The complaint alleges that prior to 1860 Charles M. Weber was the owner of the block in question, and dedicated it to the public as a cemetery, and that such dedication was accepted by the public prior to that year. The fourth paragraph of the complaint is as follows: "That on the 12th day of May, 1880, said Charles M. Weber, by a deed signed, sealed, and acknowledged by him, and by him delivered to plaintiff, sold, granted, bargained, and conveyed to plaintiff said block No. 237, to be preserved and kept as an ornamental square, and for the erection of public buildings thereon; and ever since the said delivery of said deed

and order be affirmed.

We concur: HARRISON, J.; PATERSON, J.

(98 Cal. 433)

CITY OF STOCKTON v. WEBER et al. (No. 14,775.) (Supreme Court of California. June 3, 1893.) CEMETERIES-ABANDONMENT-RECONVEYANCE FOR OTHER PURPOSES-CONDITIONS PRECEDENT.

1. Pol. Code, § 3105, vests title in the inhabitants of a city or town to lands "used" as

fee of said block No. 237, subject to the use thereof as a public cemetery, and to be kept by plaintiff as an ornamental square, and for the erection of public buildings thereon." Charles M. Weber died in 1881, and respondents, his widow and heirs, claim title in fee. The answer sets out the deed mentioned in the complaint. It is a bargain and sale deed for the expressed consideration of one dollar. Following the granting part and description of the property, down to the in testimonium clause, the deed is as follows. "Provided, the city, by its legal represent

atives, obtains authority from the legislature of this state and makes the necessary removals of the dead from the said block within twelve months from the first day of January, A. D. 1881. Said city to preserve the same as an ornamental public square, or use it for the erection of public buildings, without any right to sell or dispose of the same for private uses, and to revert back to and become the property of said Weber, his heirs or legal representatives, in the event of sale or otherwise for private uses, and the title to the same to be as valid in such event as if this deed had never been made. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part and to its assigns, forever, subject to the foregoing conditions." The answer denied the dedication of the block as a public cemetery, or that any dedication for such purpose was accepted by the public; admitted that prior to 1860 Weber permitted a large number of bodies to be buried there, and gave verbal license therefor, but that no time was fixed during which the bodies should remain, or when they should be removed; alleged that the city accepted the delivery of the deed upon the conditions expressed therein, and under an agreement to carry out said conditions before title should vest thereunder, and that the city had never procured such act of the legislature, nor removed the bodies of the dead, nor improved the block. Findings and judgment passed for defendants, and plaintiff appeals upon the judgment roll and a bill of exceptions.

The court found that for about 10 years prior to 1860 Charles M. Weber was the owner of a tract of land adjacent to the city of Stockton. That he surveyed and platted the same into lots and blocks and public streets, a part of which is the block in question; and that said Weber until his death, and since that time the defendants, his heirs, owned said tract so laid out continuously from the year 1860 to the time of the trial of this action, and are in the exclusive possession thereof. That prior to 1860 said C. M. Weber permitted a number of dead bodies to be buried in said block under a verbal license. That no time was fixed or agreed upon during which they should remain, nor when they should be removed. That said C. M. Weber, deceased, and his heirs, always reserved his and their rights as the absolute owners of said block in fee simple. That no burials were ever permitted by C. M. Weber without a reservation of all his rights in and to said block, and the whcle thereof, and he never consented to its use by the public as a burial ground That no part of it was ever used by the public for a burial ground for five years, nor was there an uninterrupted use thereof by the public for any purpose; and that it never was dedicated to nor accepted by the public

ever

as a cemetery. The testimony shows that the first interment in that block was in or about 1852, and the last in the spring of 1862; that about 1861 the Rural Cemetery was established; and that prior to the execution of said deed nearly all the bodies had been removed from that block. The number remaining is not definitely shown, but said to be "six or more."

Appellant contends that the finding that there was no dedication to nor acceptance by the public of the block in question as a public burial ground is not sustained by the evidence, and cites the act of 1854, which declared that, "where the bodies of six or more persons are buried, such place is a public graveyard." But whether it was or was not a public graveyard is immaterial, unless that fact divested the legal title of Weber. Upon this point counsel for appellant cite section 3105 of the Political Code, which is as follows: "The title to lands used as a public cemetery or graveyard, situated in or near to any city, town, or village, and used by the inhabitants thereof continuously, without interruption, as a burial ground for five years, is vested in the inhabitants of such city, town, or village, and the lands must not be used for any other purpose than a public cemetery." Section 3106 of the Political Code re-enacts the above-mentioned provision of the act of 1854, omitting the word "public," so that it now reads: "Six or more human bodies being buried at one place constitutes the place a cemetery." These provisions of the Political Code took effect January 1, 1873, and by section 3 of the same Code it is declared that "no part of it is retroactive, unless expressly so declared." Section 3105 vests title in the inhabitants of, etc., only to lands "used as a public cemetery or graveyard," while under the following section the place where six or more bodies are buried is a cemetery, though not used as a public cemetery or graveyard. The block in question ceased to be used for the burial of the dead more than 10 years before this section of the Code was enacted, and, not being then used as a public cemetery, Weber's title was unaffected by its enactment. Whether that section operates in any case to divest the title absolutely, or further than is necessary to the use, leaving it to revert to the original owner when the ground is abandoned and all the bodies removed, is not considered or decided. That the title to the block in controversy remained in Weber notwithstanding the use of the ground for burial purposes, subject to such use, and that the abandonment of the ground for such use, and the removal of all the bodies, would leave the absolute title discharged from such use in the respondents, is fully sustained by Schlessinger v. Mallard, 70 Cal. 326, 11 Pac. Rep. 728. There the city of Los Angeles conveyed certain public lands in 1857 to three trustees, of whom Mallard was the survivor, in trust

for the purpose of a city cemetery. A portion of the land was so used until 1861, when the city by ordinance discontinued its use, and provided for the removal of the bodies, and all except a few were removed. In 1870 the city conveyed to plaintiff, who brought an action against the surviving trustee to compel a conveyance, and the action was sustained. The circumstance that the legislature confirmed the conveyance by the city to the plaintiff did not, we think, affect plaintiff's title.

Appellant further contends that the deed made by Weber in May, 1880, conveyed the title to the city, to be preserved and kept as an ornamental square, and for the erection of public buildings thereon, "subject to the use thereof as a public cemetery." Respondents contend that the deed contained a condition precedent, which was never performed by the city, and that, therefore, no title ever vested in appellant. It is expressly conceded that no act of the legislature was procured under which the bodies might lawfully be removed, and that none were removed by the city; and, if the clause relating thereto is a condition precedent, it is plain no title under the deed has vested in appellant. Appellant's construction of this deed cannot be sustained. The use of the block as an ornamental public square and the erection of public buildings is inconsistent with "the use thereof as a public cemetery." The deed, however, required the use as a cemetery to be absolutely ended by the removal of all bodies then remaining therein within 12 months from January 1, 1881. These uses, being inconsistent, could not coexist, and it was plainly the intention that they should not. "The first step in the construction of a deed is to ascertain the understanding and Intention of the parties at the time of contracting. To arrive at this intention, the situation of the parties and the subjectmatter at the time of contracting should be considered. The whole of the context must be considered to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause." Brannan v. Mesick, 10 Cal. 95, 106. Weber then owned, and respondents still own, a large amount of property in the vicinity of this block. It was obviously to his interest, in view of the remainder of his property, that this block should be devoted to other purposes. So long as any of the bodies buried there remained, it tended to depreciate the value of the remainder of his property; while its improvement as an ornamental square, or by the erection of city buildings, would enhance the value of his other property. The deed clearly shows an intention on the part of the grantor to terminate its use as a cemetery, and that, such termination being first accomplished, it should then be devoted to the other use. If its use as a cemetery was to continue, there was no reason why the conveyance should be made,

and none for the requirement that the bodies should be removed. The consideration named in the deed was merely nominal. The true consideration was the removal of the dead from the vicinity of his other property, and the future improvement and use of the block for the other purposes named; nor was there any necessity that the title should pass until the bodies were removed. It would therefore seem clear that the intention of the parties was that the removal of the dead then remaining should be a condition precedent to the vesting of title in appellant. The real intention, it is true, would not avail unless the language used is capable of a reasonable construction which would effectuate that intention. Here, however, the language used was apt and appropriate to express that intention. The grant is immediately followed by the proviso: "Provided, the city, by its legal representatives, obtains authority from the legislature of this state, and makes the necessary removals of the dead from said block within twelve months from the first day of January, 1881." "A proviso in deeds and laws is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided." Voorhees v. Bank, 10 Pet. 471. "It always implies a condition, unless subsequent words change it to a covenant." Bouv. Law Dict. tit. "Proviso." "A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." Civil Code, § 1436.

Counsel for appellant argue that, if this were a condition, the grantor would have stated in the deed that the title would not vest until the condition was performed, or, on failure to perform, that the title would revert; and that this is clear because the deed does state on what condition a reverter will take place, viz. if the grantee sells or disposes of the ground to private uses. But the use of words expressly stating that the title shall only vest upon performance of a condition precedent is not necessary. The word "provided" expresses as much, and is one of the apt words commonly used to create a condition. Raley v. Umatilla Co., 15 Or. 172, 13 Pac. Rep. 890; Gibert v. Peteler, 38 N. Y. at page 168. The first condition prevented the estate from vesting, if not performed, and in such case there could be no reverter; but a condition subsequent does not prevent the estate from vesting, and therefore upon a breach the grantor cannot again have the title except by a reverter, based upon the breach and a re-entry therefor.

But it is further contended that the condition under consideration requires an unlawful act, and is therefore void. Counsel base this contention upon article 4, § 25, subd. 7, of the constitution, prohibiting special legis lation authorizing, among other things, “va