Page images

saying that he was pow ready, and that a draft i need not be confined to the very day, but Front
on him for $2,500 would be honored, and the of value within a reasonable time before
mortgage executed. Defendant did not answer after the transaction may be received and to
said letter, and refused to fulfill the contract, sidered by the jury. - Constant v. Lekcie
or return the deposit. Held that, having suffer- (Kan.) 34 P. 745.
ed no actual damages by plaintiff's default, he 12. Where wagons and harness are destros
was liable for the whole deposit, in view of their cost, less a reasonable amount for free
Civil Code, $8 1670, 1671, which forbid con- and tear, is proper evidence of their rate-
tracts for liquidated damages for breach of an Union Pac., D. & G. Ry. Co. . Wüllasi,
obligation unless, from the nature of the case, (Colo. App.) 34 P. 731.
it would be impracticable to fix the actual 13. Where there is no home market ?
damage.--Easton v. Cressey, (Cal.) 34 P. 622. goods destroyed, it is proper to base their tas
Measure for breach of contract.

on a foreign market, less the freight-tka

Pac., D. & G. Ry. Co. v. Williams, (Colo. An
4. Where parties by mistake convey land to 34 P. 731.
which they have no title, the measure of dam-
ages ordinarily is the consideration paid and
interest thereon; and the expenses of the pur-

Dangerous Premises.
chaser for railway fare and hotel bills while at. See “Master and Servant," 5–7; "Negligence, "?
tempting to make a settlement with the ven-
dors cannot be included.-Doom V. Curran,
(Kan.) 34 P. 1118.

5. In an action for breach of a contract Abatement of action, see “Abatement and Le
whereby plaintiff was to harvest defendant's

grain, it appeared that plaintiff bad spent sev-
eral days in preparing to perform, hauling horse
feed and provisions for his men, with two four Death by Wrongful Act.
horse teams and men in charge; that he was
discharged the third day of harvesting; that he Retrospective effect of statute, see "Statutes."
was using 24 horses, 6 of them hired, and his

own machine, worth $2,000; that after said

discharge his men, teams, and machine lay idle
a week before he could obtain other work for See "Descent and Distribution;" "Execute
them. Held, that a verdict for $400 actual

and Administrators;" "Wills."
damages was sustained by the evidence.-Ceder-
berg v. Robison, (Cal.) 34 P. 625.

Measure for torts.

6. Where a hayrack built by the owner is See, also, "False Pretenses;" "Fraudulent Car
destroyed, the cost of the materials and value

of time taken to build it is the proper measure When action lies.
of damages.-Union Pac., D. & G. Ry. Co. v.
Williams, (Colo. App.) 34 P. 731.

1. A person making misrepresentations a
7. In an action to recover damages for to the title of land may be held liable to the
fraudulently inducing the plaintiff to enter into purchaser for the loss occasioned, tborst be
a joint purchase of lands with the defendants, may not have had any direct interest in the
where the fraud charged is that the defendants transaction, nor have received any of the cor-
were part owners in the land, and concealed sideration. -Carpenter v. Wright, (Kan.) 34 P.

such fact from the plaintiff, the measure of the
plaintiff's recovery is the difference between the

2. A fraudulent representation that a tract
price paid and the fair market value of the of land is clear of incumbrances upon which
property at the time of

the purchase.-Constant representation another relies, and is therebs
v. Lehman, (Kan.) 34 P. 745.

duced to purchase the land, which in fact is

subject to a valid mortgage, will sustain 2
Excessive damages.

action for damages, though the injured party
8. Where the proprietor of a musical enter- might have discovered the incumbrance by
tainment employs a man for six months at $15 searching the public records.-Carpenter 1.
per week, and agrees to employ the latter's Wright, (Kan.) 34 P. 798.
wife, from week to week, for an indefinite time, Damages.
at $25 per week, but at the end of one week
dispenses with the services of both without any the condition of the water supply on defend

3. In an action for misrepresentations as to
valid or legal reason, a judgment of $50, in ant's ranch, it appeared that plaintiff's acet
favor of the husband, for breach of the con- visited the ranch, and knew the condition of
tract, is neither excessive nor improper.-Man- the water, before placing

a herd of cattle there
ger v. Grodnick, (Colo. App.) 34 P. 658.

on; that they had exclusive charge of the cat.

tle while on the ranch; and that an abundance
9. Under a complaint containing only a of pure, running water was accessible, withia
general allegation that plaintiff had suffered half a mile. Held, that defendant was not ab
damages in the sum of $500 by defendant's insurer of the herd, and chargeable with the
wrongful ouster and withholding possession of Palue of all cattle which died as a result of
plaintiff's premises, some damages may be the insufficiency or unwholesomeness of the
proved: and a contention on appeal that the

on the ranch. – Godding v. Colorado
complaint is insufficient to sustain the judg- Springs Live-Stock Co., (Colo. App.) 34 P.
ment for damages entered cannot be noticed,
where the judgment roll, only, is upon review, Declarations and Admissions.
and there is nothing from which to judge
whether the proof received was germane to the See "Evidence,” 5-8.
allegations and the damages that might be
proved thereunder.-Haggin v. Lorenz, (Mont.)

34 P. 607.

10. Defendant may give evidence in miti- of streets.
gation of damages, under the general issue.-
Huning v. Charez, (N. M.) 34 P. 44.

1. The drawing of side lines through

block in a plat of land, indicating that it ma!

be intended for a street, but not designating it
11. In an action to recover damages for by name as such, is merely an offer to dedicate

fraudulently inducing plaintiff to buy land, to and where the land so designated is not a car
prove the market value of the land the evidence tinuation of any existing street, and bas dot



been accepted or used by the public, and no one

was acted on the offer by purchasing lots on the
faith of the delineation of the land as a street, Waiver of objections.
the owner may revoke the offer.-Schmitt v.

Where the certificate to a deposition is
City and County of San Francisco, (Cal.) 34 insufficient, or the deposition is defective in
P. 961.

any other respect that can be remedied by re
Revocation of offer.

taking it, and no motion to suppress it is made,
2. A deed of the entire block by the owner, objection thereto is waived, and cannot be
describing it by metes and bounds, without ref made when the deposition is offered in evi-
erence to the alleged street delineated on the dence on the trial.-American Pub. Co. v. 0.
plat, and conveying it as part of the land sold, E. Mayne Co., (Utah,) 34 P. 247.
operates as a revocation of the offer to dedicate.
-Schmitt v. City and County of San Francisco,

(Cal.) 34 P. 961.

3. The fact that after the revocation of an Powers, see "Sheriffs and Constables," 9.
offer to dedicate a street the city attempted to
accept the offer by delineating the street on
the official city maps is immaterial, since, after DESCENT AND DISTRIBUTION.
the revocation of the offer, the land became
private property:-Schmitt i City and County See also: "Executors and Administrators;"
of San Francisco, (Cal.) 34 P. 961.

Distribution of estate, see "Executors and Ad.

ministrators,” 11, 12.
See, also, "Fraudulent Conveyances;”. “Spe-

Children by former wives.
cific Performance:" "Vendor and Purchaser.” by three wives, dies, one-half of his estate

1. Where a married man, having children
Estoppel by, see "Estoppel,” 1, 2.

goes to his widow in fee, (Gen. St. 1889,
Filling blanks-Names of parties.

par. 2599,) and, on her death, her estate de-
Where the owner of land gives a deed 2620, cl. 1, providing that children of the half

scends to her own children, and paragraph
thereof to secure a debt, and the grantee there- blood shall

' inherit equally with children of the
after executes a deed of the land to the debtor whole blood, does not affect the descent, since
with the name of the grantee blank, and the the third wife is not related by blood to the
debtor fills in the name of his daughter, and children of the former wives, and paragraph
delivers the deed to her, it conveys the title 2020, c. 2, providing that children of a de-
to her against him and his heirs. -Jennings v.
Jennings, (Or.) 34 P. 21.

ceased parent inherit in equal proportions the
portion their father or mother would have in-

herited if living, cannot apply.-Carlton v. Bur-
De Facto.

leigh, (Kan.) 34 P. 1050.
Corporation, see "Corporations,” 3.

Children omitted from will.
Officers, see “Office and Officer," 7.

2. A will reciting that testator, knowing

that his wife would ever continue the same

kind, devoted mother to their children which

she had always proven herself, gave all his
Judgment by, see "Judgment," 1-3.

property to his wife, expressly excluding said

children. Held, that an intentional omission to

provide for issue of deceased children appeared

on the face of the will, within Civil Code, 8
Of parties, see “Parties," 5.

1307, providing that in case of an omission to

provide for any child or the issue of a deceased
Defective Appliances.

child, unless it appears that such omission was

intentional, he shall take as though there had
See “Master and Servant," 8.

been no will.-Rhoton v. Blevin, (Cal.) 34 P.

Defective Streets.

See “Municipal Corporations," 23.

Of mortgaged property, see “Chattel Mort-

gages," 4.
Defective Title.

See "Vendor and Purchaser," 7, &

See "Replevin."
Delegation of Legislative Powers. Devise and Legacy.
See "Constitutional Law," 3, 4.

See “Wills.”

Before suit, see "Replerin," 1.

See “Payment;" “Release and Discharge.”

Of insolvent, see "Insolvency,” 5.
See “Pleading," 7-9.


Examination of adverse party before

Consent of parties--Effect.

A formal order requiring defendant to
Where goods, for the recovery of which answer interrogatories is not necessary, but it
an action has been brought, are converted into is sufficient merely to serve the interrogatories
money, and the money is, by consent of all par- op defendant.-Livesley v. O'Brien, (Wash.) 34

P. 134.
ties, placed in the hands of an officer of the
court, it is at the risk of one party as much as

the other. Mansfield v. First Nat. Bank,
(Wash.) 34 P. 143.

Of appeal, see "Appeal.” Go


swore that her husband told her said

would be brought for desertion. Held that's

view of the harshness of the jod mat.
1. Under 1 Hill's Code, $ 2894, providing court should have set it aside, whether defani
that "all houses

used as a place of ant had colluded with, or had been deceived by
resort where women are employed to draw cus- her husband; her application and sfidat:
tom, dance, or for purposes of prostitution showing eufficiently the grounds of her proposed

are nuisances,” an information which answer.-Mulkey V. Mulkey, (Cal.) 34 P. 621
charges that defendant kept a house which Alimony.
"was then used as a place of resort where
women are employed to draw custom and to

6. In a divorce case, wherein plaintif !
dance" is insufficient, in that it does not allege leged that she was defendant's lawful wife by
that women were employed to draw custom and a marriage in Russia, defendant denied the
to dance at the time defendant was said to validity of the marriage, but admitted less
have kept the house.-State r. Brown, (Wash.) continued cohabitation, and the birth of te
34 P. 132.

children. Defendant also charged plaintift
2. The information is also defective in not adultery, and alleged that he had obtaice's

Mosaic divorce from her.
showing that the character of the women em-

Held, that tbere u
ployed or their conversation and deportment sufficient prima facie proof of marriage to
were such as tended to draw crowds of disor- title plaintiff to alimony pendente lite. -Piibe
derly persons, or to corrupt the morals of per- stein v. Finkelstein, (Mont.) 34 P. 1090.
sous resorting to the place.—State v. Brown, ducting a large tailoring business, though in e

7. Where it appears that defendant is ec
(Wash.) 34 P. 132.

other's name, an allowance of $30 per mosti

as temporary alimony and $50 as counsel fes

not unreasonable.-Finkelstein . Finkeiscin
Of injunction, see “Injunction," 9.

(Mont.) 34 P. 1090.
Of partnership, see "Partnership," 2.

Division of property.

8. Where husband and wife live apart, ani
District and Prosecuting At-

appear to be in equal wrong, and the court it

fuses to grant a divorce, it may direct an eine

division of the property when the wife bis

title to more than her share.
Discretion of district attorney, see “Manda- Van Brunt v. Van Brunt, (Kan.) 34 P. 1117.

Code, 643-
mus," 6.

9. Where the husband's property did De

exceed $400 in value, and the wife's property

was worth at least $14,000, the court proverit

adjudged that she pay him $1,000.-Van Bran
1. Civil Code, $ 128, as amended by Act v. Van Brunt, (Kan.) 34 P. 1117.
March 10, 1891, providing that a divorce must
not be granted unless plaintiff has been a resi-

dent of the county "in which the action is
brought three months next preceding the com- See “Evidence," 22–24.
mencement of the action," does not prevent a
change of the place of trial of an action for

divorce to the county in which defendant re
sides, since Code Civil Proc. § 395, provides

See “Gifts."
that "in all other cases (excepting actions re-
lating to real property, for the recovery of pen-

alties, and those against municipal corpora-
tions and public officers, etc.) the action must Defective drains, see "Municipal Corporations."
be tried in the county in which the defendants,

or some of them, reside at the commencement Police power, see "Constitutional Law," 22
of the action.” De Haven, J., dissenting.-
Warner v. Warner, (Cal.) 34 P. 523.

Pleading and proof.

As defense to crime, see "Homicide," 2.
2. A divorce should not be granted for acts
of cruelty entirely different from those alleged

Due Process of Law.
in the petition. Winterburg v. Winterburg,
(Kan.) 34 P. 971.

See “Constitutional Law," 17-21.
Annulling decree-Collusion.
3. Where, after a summons and complaint

for a divorce has been served on defendant,
she, understanding the nature of the action, See, also, “Adverse Possession;" "Quieting Ty
fails to defend, under a collusive agreement tle.'
with plaintiff, for a money consideration to be Between cotenants,
paid her, a decree for plaintiff will not be set

see "Tenancy in Com-

mon," 1.
aside on her petition, it appearing that she
feels no remorse for her fraud on the court, Ouster and possession by defendant.
but is actuated solely by a desire to obtain the. 1. In an action in the nature of ejectment
money.-Hubbard v. Hubbard, (Colo. Sup.) 34 where the evidence tends to prove that defend-
P. 170.
4. Nor will the decree be set aside in such the action was commenced, an answer depring

ants were in possession of the premises when
case on the ground of public morals.--Hubbard plaintiff's title and right of possession is set
v. Hubbard, (Colo. Sup.) 34 P. 170.

cient evidence of ouster.-Moore v. Moore, (Cal!
5. Code Civil Proc. $ 473, provides that 34 P. 90.
the court may, after notice to the adverse par 2. In ejectment by a widow against her
ty, on such terms as may be just, relieve a husband's administrator for premises which
party from a judgment taken against him had been set apart as a homestead to plaintif
through his mistake, inadvertence, surprise, or and her minor children, it appeared thai, fra
excusable neglect. Defendant suffered a 'de the time of defendant's appointment as admix
fault in a suit for divorce for adultery, brought istrator till the homestead was set apart. de
by her husband, who was awarded the custody fendant collected the rents of the premises

of the children and the entire community prop- and paid taxes; that two months thereafter
erty. She applied to vacate the judgment un plaintiff demanded possession of him, with
der said section, and, by affidavit annexed, I he refused to give; that in his 'Perived

[ocr errors]

atement to the tax collector he included this Maxwell Land-Grant Co. v. Dawson, (N. M.)
omestead property; and that he leased part 34 P. 191.
hereof to another. Held, that the evidence
istified a verdict that defendant was in pos-

ession when the action was commenced.-Moore

10. A judgment for the recovery of land
Moore, (Cal.) 34 P. 90.

entered in September, 1891, described a cer-

tain tract, but excepted from its effect such

parts "as were sown to grain by the defendant
3. Where one erects a building on vacant during the fall of 1890 and the winter of 1891."
ind, and then rents the property, he cannot, Held, that the term "winter of 1891" referred
i an action to recover possession and mesne

to the winter of 1890-91, and the description
rofits, defend on the ground that he asserted is prima facie sufficient to identify the land
o right to the land, but that his acts and con- excepted.-Rosenthal v. Mathews, (Cal.) 34 P.
rol were limited to the improvements.-Ghost | 624.
Shuman, (Colo. App.) 34 P. 733.

4. The fact that the equitable owner of

11. In ejectment, the verdict of the jury is
and perinitted a number of years to elapse conclusive as to damages, and the court can.
vithout taking action, which he might have not allow a different sum on finding made by
aken, to obtain the legal title, does not pre- the court.-Mills v. Fletcher, (Cal.) 34 P. 637.
rent bim, when sued for the land, from setting
ip such equity as a defense.--Dutertre v. Sbal-
enberger, (Nev.) 34 P. 49.

Election of Remedies.
5. After foreclosure sale, but before exe- Release of surety, see "Principal and Surety,” 3.
ution of sheriff's deed, the mortgagor's interest
in the land was attached. Judgment was not
rendered till nine years later, and the land was ELECTIONS AND VOTERS.
zold a year after that. Four months after at-
wachment, the judgment debtor, being still in Submission of questions to voters, see "Munic-
possession, deeded the land to defendant, who ipal Corporations,” 7-9.
thereupon took and kept possession, and paid
taxes regularly thereafter. Held, that defend- Constitutional law

Qualifications of
int could plead adverse possession running voters.
from the time he took possession, against plain 1. The word "elections," in Const. art. 7,
tiff claiming under the sale in the attachment $ 1, providing that every male citizen over 21
suit. This defense was not in effect a plea of years of age "shall be entitled to vote at all
outstanding title under the foreclosure sale, elections,” refers merely to public elections for
within the rule that in ejectment for lands pur- the choice of public officers, and a statute re
chased on execution against a debtor in pos, quiring the question of the annexation of a
session when the lien attached defendant and town or city to be submitted to the determina-
his vendees cannot show that he had no title, tion of such qualified electors of the municipal-
or that the true title is outstanding.-Robinson ity as have in the year next preceding paid a
5. Thornton, (Cal.) 34 P. 120.

property tax therein is not unconstitutional.---
6. Plaintiff could not introduce a deed from Town of Valverde v. Shattuck, (Colo. Sup.) 34
te the assignee of the purchaser on the foreclosure P. 947.

sale, executed after this suit was begun, on the Notice of election.
ground that defendant had put the foreclosure
"in evidence as an outstanding title, There was

2. The posting on October 4th of notices
no issue of outstanding title, and the fore for holding an election on November 8th to de
closure was only introduced to show that the termine the question as to the formation of a
lien on which plaintiff's title was based had sanitary district, which notices remain posted

for four successive weeks, is a sufficient com-
been extinguished. — Robinson V. Thornton,

pliance with St. 1891, p. 223, § 3, which re-
(Cal.) 34 P. 120.

quires notices "to be posted for four successive
Release of occupying codefendant-

weeks prior to the election," and not that the

posting shall be during the four weeks next
Abatement of action.

preceding the election.- Woodward v. Fruitvale
7. Civil Code, c. 23, § 266, provides that, Sanitary Dist., (Cal.) 34 P. 239.
if the premises for which an action to recover
E' possession is brought are continually occupied,

the occupant shall be made defendant with any

3. A certificate of nomination, required to
one claiming an interest adversely to plaintiff'

. be filed by the Montana ballot laws, (section 4,)
Section 267 provides that damages for ouster or which is regular upon its face, and filed with
detention shall be recovered in the same action. the proper officer, is prima facie evidence of
Section 269 provides that the verdict may be the nomination of the person so certified. -
against either defendant. Held, that where, aft- State v: Benton, (Mont. 34 P. 301.
er action brought against one in possession and

4. The secretary of the committee to which
one from whom he rented, the former recog-

was delegated the power to make a nomina-
nized plaintiff's title, and took a lease froin him, tion by a political convention, who certified

a release of him by plaintiff would not abate such nomination to the proper 'officer, testified
1 the action as to the other, the latter being the that he was present at a committee meeting
only one claimed to be liable for mesne profits. ings were held at several places, and that sev.

where the nomination was made; that meet-
-Ghost v. Shuman, (Colo. App.) 34 P. 733.

eral committee men were present; that such

nomination was decided on at several meet-
8. Where a defendant in ejectment is in ings, but he could not name the particular
possession of any part of the premises as ten- meeting at which the nomination was made,
ant of another, it is proper to join the latter as

no minutes having been kept. Held, that such
party defendant.-Moore v. Moore, (Cal.) 34 P. testimony did not overthrow the prima facie

case made by the certificate of nomination.
Burden of proof.

Harwood, J. dissenting. — State v. Benton,

(Mont.) 34 P. 301.
9, Where plaintiff in ejectment claims un 5. A political convention delegated to a
der deeds which cover a tract of which the committee power “to fill all vacancies that now
land in dispute is a part, but which except and exist, or that may hereafter occur." The con-
reserve from the grant a certain number of vention failed to make a certain nomination,
acres, not described, which had been conveyed and the committee, after the adjournment of
by a former owner to other persons, the bur- the convention, made such nomination. Held.
den is on plaintiff to show that the land in dis- that the Montana ballot law does not forbid a
pute is not a part of the land so excepted. - nomination to be so made, and that it was

properly made. Harwood. J., dissenting.-State a public road established.-Long 5. Bila
. Benton, (Mont.) 34 P. 301.

(Wash.) 34 P. 936.
6. Where papers in apparent conformity to
the provisions of the Australian ballot law, Property subject to-Tide lands.
Laws 1893, c. 78, nominating a candidate for.

3. Tide lands belonging to the state a
judge of a judicial district, have been filed' not "state lands," within Code Proc. & 642, pra
with the secretary of state more than 30 days viding for service of notice in condense
before the day of election, and such nomination proceedings if the property sought to be ap,
papers have not been held insufficient by the priated is state, school, or county lands. c)
secretary of state, auditor of state, and attorney cannot be condemned, there being so auth-
general, or a majority of them, it is the duty of therefor. - Seattle & M. Ry. Co. v. Sote,
the secretary to certify to the county clerk of (Wash.) 34 P. 551.
each county within the judicial district the Taking interest in public lands-Right
name and residence of the candidate named in
such nomination papers, not less than 15 days

of pre-emptor.
before the election, notwithstanding the fact

4. A pre-emptor who has filed his declin
that objections thereto have been filed, and re- tory statement, but has not paid for the ssd
main undetermined. - Simpson Osborn,

has a "possessory claim," within the nearis:
(Kan.) 34 P. 747.

of Act Cong. March 3, 1875, 3, which pro

vided for the condemnation of such boltica

in the public lands by railroads taking adva
7. The fact that the person named in nomi- tage of the act, and is entitled to compensain
nation papers

as the candidate of the pe for a right of way taken through his las
titioners is also the ca didate of another politi- Enoch v. Railway Co., (Wash.) 33 P. 36. -
cal party does not affect the right of petitioners lowed.--Reidt v. Spokane Falls & N. Ry. Co
to have his name printed on the official ballot, (Wash.) 34 P. 150; Flutsch v. Same, Id.
in a separate column, under the heading of their condemnation proceedings.
party name, as their candidate.--Simpson v.

5. Under Hill's Code, $ 3263. prosiding tha:
Osborn,. (Kan.) 34 P. 747.

defendant in an action to condemn land en

set forth any legal defense to the appropriati.
8. Code Civil Proc. $ 1111, providing that of such land, and also allege the value of the
any elector of a county, or political subdivision land and the damage from the appropriation, a
thereof, may contest the right of any person owner may deny plaintiff's right to appropriate
"declared elected" to an office to be exercised the land, and also set up a claim for damages
therein, for causes enumerated, only authorizes „Brida! Veil Lumbering Co. v. Johnson, (0:2
an examination of the right of a person “de-

34 P. 1026.
clared elected" at an election, the canvass of

6. Where the award of commissioners give
which is questioned, and does not authorize a

a person in possession of the land a part 6
recanvass of votes where the election has been which is appropriated, and having a life ister
declared to have resulted in the election of no

est therein, a gross sum for compensation, se
one, in which case a new election must be held. person may appeal from the award
-Austin v. Dick, (Cal.) 34 P. 655; Id. 822.

joining with him the owner of the legal title-

Chicago, K. & N. Ry. Co. v. Ellis, (Kan.) 34 P.
Offenses against election laws—Indict- 352.

9. Rev. St. U. 8. § 5515, makes it an of 7. In condemnation proceedings, goes
fense for an election officer to neglect or re tion: "For what purpose could that property
fuse to make and return the certificate of elec- be used properly?" - is properly disallosed
tion as required by law, or to refuse to per- City of Santa Ana v. Harlin, (Cal.) 34 P. 24.
form any other duty imposed by law. Held, 8. In condemnation proceedings the owner
that an indictment under such section need is entitled to show the adaptability of the lead
only allege the duty, its undertaking, and the to the different practical purposes to which it
intentional refusal to perform it.—United States is naturally, adapted, but the proof should be
v. Vigil, (N. M.) 34 P. 530.

limited to showing the present condition of the
10. Allegations in such indictment that the property, and the uses to which it is adapted,
acts were done willfully and maliciously are and not extended to speculative inquiries as to
surplusage, and need not be proved.-United possible future uses under altered circun-
States v. Vigil, (N. M.) 34 P. 530.

stances. - City of Santa Ana v. Harlin, (Cal)

34 P. 224.

9. In proceedings to condemn land, the

present market value is the measure of dan
By creditor, action by assignee, see "Insolven- ages, and not its value in use to the owder
cy," 3, 4.

to those seeking to condemn.-City of Santa
Ana v. Harlin, (Cal.) 34 P. 224.

10. The term "present market valge" df

land means the price he could obtain after

such a reasonable and ample time to sell ss
Taking land for private way of necessity, see would ordinarily be taken by, an owner.-City
"Constitutional Law," 2.

of Santa Ana v. Harlin, (Cal.) 34 P. 224.
Transfer of proceedings from one judge to an-

other, see “Practice in Civil Cases," 4.

11. In condemnation proceedings the 01-
Necessity for taking.

er cannot show offers received for the proper
1. As Acts 1889, p. 70, giving the city ty. Muller v. Railway Co., 23 P. 265, $3 Cal
council power to open streets, imposes on it 240, distinguished.-City of Santa Ana y. Har
the duty of determining the necessity, and lin, (Cal.) 34 P. 224.
makes the official order opening the street con-

12. Even if the owner could testify as to
clusive evidence of the necessity, the question offers received for property sought to be con-
of necessity is purely for the council, and will demned, a question whether he received often
not be passed upon by the courts.-City of San. was properly excluded, where no time Fis
ta Ana v. Harlin, (Cal.) 34 P. 224.

specified, and he had just testified that he had
Condemnation for private way.

owned the property for 16 years.- City of Santa

Ana v. Harlin, (Cal.) 34 P. 224.
2. At common law, where a purchaser of 13. To show the market value of land con-
land was cut off from access to a highway by demned, the report of commissioners appointed
lands not the property of his grantor, he could to assess neighboring land, reciting the price
not have such lands condemned for a private to be paid for neighboring land, and the cor
way of necessity. His only remedy was to have I sideration which determined such report, 15

« PreviousContinue »