The order to show cause is discharged, and [2. ADVERSE POSSESSION 17-TIMBER LAND -PATROLLING LAND. the proceeding dismissed.

RODGERS v. JORDAN, Secretary of State. tion being for the ordinary use of the occupant.

COUSINO et al. v. WESTERN SHORE LUM-name of Mary Huot, and patents therefor

struing this clause in said conveyance the court said:

"It has been suggested in argument that such a description includes only the joint estate or hypercritical and is too narrow and technical. interest of the grantors, but this construction is In a large majority of cases such a construction would defeat the real intention of the parties. If there be several adverse claimants to separate undivided interests in a tract of land, and if all the claimants unite in a joint deed to a stranger, conveying all their right, title, and interest in and to the lands, it would not be passed by the deed because the grantors had seriously contended, I apprehend, that nothing no joint interest in the land."

band and seven children, who constitute the plaintiffs in this action, basing their claim of title upon their heirship of Mary Huot. The defendant bases its claim of ownership of the lands in question upon several grounds, the first of these being that of an alleged conveyance by Mary Huot and her husband to Wm. S. Chapman, dated July 26, 1871, by whom the premises were conveyed to the defendant. The deed from Mary Huot and her husband to Wm. S. Chapman was executed on their behalf by one Henry T. Welles, purporting to act as their attorney in fact under a certain power of attorney executed by them In the case of Douglas v. Fulda, 50 Cal. 77, on May 20, 1871, by which Mary Cosineau, the instrument in question was a power of formerly Mary Huot, and John Cosineau, her attorney given by a husband and wife, joint husband, of the county of Pierce, state of in form, authorizing one Calderwood to lease Wisconsin, constituted and appointed said a certain lot, and under which he undertook Henry T. Welles their true and lawful at

torney

"for us, and in our names, places, and stead,
to enter into and upon and take possession of
any and all pieces and parcels of land or the
timber and other material therein in the state
of Minnesota and in any state or territory of
the United States, which we now own or which
we may hereafter acquire or become seised of,
or in which we may now or hereafter be in any
way interested, and we further authorize and
empower our said attorney to grant, bargain,
sell, demise, lease, convey, and confirm said
land or any part thereof *
to such per-
son or persons and for such prices as to our
said attorney shall seem meet and proper," etc.

* *

to execute a lease of the lot, which was the separate property of the wife. The court said:

In

"The power of attorney was sufficient. Castro v. Tennent, 44 Cal. 253, a similar question arose upon the construction of a deed executed by the husband and wife jointly, and purporting to convey their joint interest in the land. It was contended that the separate estate or interest of the wife did not pass by the conveyance. But this court said that this construction was hypercritical and too narrow and technical, and held that the separate estate of the wife passed by the deed. The question now It was unpresented is substantially the same. doubtedly the intention of the parties to confer upon Calderwood the power to deal with the separate property of Elizabeth Douglas, and that power was conferred by the instrument, as we construe it."

The rule of construction declared in these two cases has never been departed from or criticized in any later cases, and has, therefore, we think, become a rule of property in this state which should not now be changed.

In addition to this, however, the Supreme Court of the United States has declared the same rule for the construction of powers of attorney joint in form. In the case of Holladay v. Daily, 19 Wall. 606, 22 L. Ed. 187, involving the validity of a transfer of the separate property of the husband under a joint power of attorney executed by the husband and wife, Mr. Justice Field, in sustaining such conveyance, said:

The first point urged by the appellants herein is that said power of attorney was not sufficient in its grant of powers to have authorized said Henry T. Welles, as the attorney in fact of Mary Cosineau, formerly Mary Huot, to convey her separate property, their particular contention being that said power of attorney, being joint in its terms, must be construed as having reference only to the joint property of the parties executing the same, or, at most, to such property as both of the parties "now own" or "may hereafter acquire or become seized of," or "may now or hereafter be in any way interested" in; and that since the property with respect to which the power was attempted to be exercised was situated in California, and was the separate property of the wife, in which the husband had no present or prospective interest, it "A power of attorney created by two or more was not covered by the terms of the power. persons possessing distinct interests in real Whatever the rule may be in other jurisdic-prevent a sale of the interest of either separateproperty may, of course, be so limited as to tions, we are constrained to hold that from ly; but in the absence of qualifying terms, or an early date in the judicial history of Cali- other circumstances, thus restraining the aufornia it has been the rule that conveyances thority of the attorney, a power to sell and and powers of attorney joint in form are to in general terms, as in the present case, is a convey real property, given by several parties, be construed as conveying or authorizing the power to sell and convey the interest of each, conveyance of whatever interest both or ei- either jointly with the interests of the others, ther of the parties have in the property to be or by a separate instrument." affected by the instrument under consider- [1] The chief reliance of the appellants ation. In the early case of Castro v. Ten- herein is upon the case of Gilbert v. How, 45 nent, 44 Cal. 253, the instrument in question Minn. 121, 47 N. W. 643, 22 Am. St. Rep. 724, was a conveyance wherein the grantors un- in which a power of attorney substantially dertook to convey all of the undivided half in the form of the power under review in this of the right, title, and interest of the said case was held to be insufficient to authorize parties of the first part of, in, and to that the donee of the power to convey lands in

was interested. That this case is in conflict to invade the property bodies of fire fighters with the rule laid down in the foregoing Cali- were used in preserving its timber from defornia cases and also with the statement of struction. It is conceded that the defendant the rule by the Supreme Court of the United paid the taxes assessed against the property States in the case above cited was pointed during all these years. The lands, as we out by Mr. A. C. Freeman in his notes to the have seen, were timber lands. The defendcase of Gilbert v. How, as reported in 22 Am. ant, who was thus the occupant of said lands, St. Rep. 724. It is also to be noted that the was a lumber company, and the ordinary and rule announced in the case of Gilbert v. How eventual use to which said lands were to be has been very much modified by the courts put was that of the cutting, logging, and of Minnesota in three later cases, viz. Tuman milling of the timber thereon; and this being v. Pillsbury, 60 Minn. 520, 63 N. W. 104, Snell so, we think the possession of the defendant, v. Weyerhauser, 71 Minn. 57, 73 N. W. 633, and as indicated by its foregoing assertion of Roy v. Harrison Iron Mining Company, 113 control over said property, based as it was Minn. 143, 129 N. W. 154, in each of which upon a claim of title founded upon a writlater cases powers of attorney in almost the ten instrument, was sufficient to constitute precise phraseology of that under review adverse possession for the required statutory herein were held to be sufficient to support period under subdivision 3 of section 323, of conveyances of the separate property of the the Code of Civil Procedure. Coryell v. Cain, husband, in which at most the only interest 16 Cal. 567; Wolf v. Baldwin, 19 Cal. 306; of the wife was an inchoate right of dower. Brumagim v. Bradshaw, 39 Cal. 24; Spotts In each of these last-named cases the Su- v. Hanley, 85 Cal. 155, 24 Pac. 738; Webber preme Court of Minnesota lays special em- v. Clarke, 74 Cal. 11, 15 Pac. 431. phasis upon the clause in the power authoriz- The other points made upon the appeal do ing the donee thereof to convey any lands, not require discussion. wherever situated, in which the donors of Judgment affirmed. the power "may now or hereafter be in any way interested"; holding that these words must be given a broadening effect so as to take these cases out of the rule laid down in Gilbert v. How. The same precise phrase occurs in the power in question here. We are therefore of the opinion that for all of the foregoing reasons the power of attorney given by Mary Cosineau, formerly Mary Huot, and her husband, John Cosineau, was sufficient to have authorized the execution of the conveyance of the lands in question to Wm. S. Chapman, and hence to sustain the defendant's title derived through such con

veyance.

[2] The respondent further supports its claim of title to the premises by the plea and proof of adverse possession, and we think its claim in that behalf should also be sustained. The lands in question are rough mountain timber lands valuable chiefly, if not solely, for the timber thereon, which consists of a heavy growth of redwood, fir, and oak. From a period not long after the defendant received the conveyance of these lands from Chapman it began patrolling the same for the prevention of trespassing and for the protection of the timber against fires. In connection with both of these purposes trails were laid out and constantly maintained through various portions of the property from a time shortly after the conveyance to it of the property down to the date of the inception of this action, and which were made use of constantly by the agents of the defendant to keep hunters, fishers, campers, and other trespassers off the property, and to protect all portions thereof against fires. A cabin for the use of the patrols was built and maintained upon the premises, and from time to time as fires occurred within or threatened

. We concur: SHAW, J.; SLOSS, J.

(178 Cal. 803)

PEOPLE ex rel. JONES v. ZEMANSKY et al. (S. F. 8872.)

(Supreme Court of California. Sept. 16, 1918.) 1. ELECTIONS 156-RIGHT TO CERTIFICATE OF NOMINATION-PRIMARY ACT.

Under Primary Act, § 23, as amended by St. 1917, p. 1356, two candidates for judge of superior court of city and county of San Francisco were not entitled to certificate of nomination, where neither was "majority candidate" under section, that is, one receiving majority of all votes cast in San Francisco at primary election, and there were not four such majority candidates nominated at primary. 2. CONSTITUTIONAL LAW 43(2)-VALIDITY OF STATUTE-ESTOPPEL TO RAISE QUESTION.

Where establishment of claim of petitioner for writ of mandate to compel respondents to issue certificate of nomination to her, that the whole primary act is unconstitutional, would bar her from receiving certificate of nomination sought, Supreme Court need not consider points made by petitioner as to unconstitutionality of act.

In Bank. Application for writ of mandate by the People of the State of California, on the relation of Charlotte F. Jones, against Application J. H. Zemansky and others. denied.

Charlotte F. Jones, of Seattle, Wash., for petitioner.

PER CURIAM. [1, 2] Notwithstanding its title, this proceeding in so far as it can be considered by us, is in effect simply one by Charlotte F. Jones to obtain a writ of mandate compelling respondents to issue certificates of nomination to her and another, as candidates for judges of the superior court of

the city and county of San Francisco, by reason of the votes received by them respec tively at the recent primary election. As to neither herself nor the other candidate, who does not join in or assent to the petition, are sufficient facts alleged to make a prima facie

tion of trench was completed before injured employés entered it.

Department 2. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge.

Actions by William T. Noakes and by George B. Noakes against the City of Los

From judgments for plaintiffs, and orders denying new trials, defendants appeal. Affirmed.

case for relief, in that it is not made to ap pear that either was a "majority candidate" under the provisions of section 23 of the Pri-Angeles and others. mary Act (St. 1913, p. 1404, by St. 1917, p. 1356), that is, one receiving a majority of all the votes cast in San Francisco at said Albert Lee Stephens and Charles S. Burprimary election, and that there were not nell, both of Los Angeles, for appellants. four such "majority candidates" nominated Harriman, Ryckman & Tuttle, of Los Angeat said primary. If this was the situation, les, and Hyman Levin, of San Francisco, for neither she nor the other candidate named in respondents. her petition was entitled to a certificate of nomination, in view of certain provisions of said section 23 as to the validity of which provisions we can perceive no serious question. Furthermore, as to herself, her name not having been printed on the primary ballot and her 49 votes having been received from persons writing in her name on the ballot, it is not made to appear that she received a sufficient number of votes to equal the number required for a nomination paper, so as to entitle her to a certificate of nomination, under a provision of subdivision 9 of section 5 of the Primary Act.

[3] It is further claimed by petitioner that the whole Primary Act is violative of our Constitution. The establishment of any such claim would effectively bar her from receiving the certificate of nomination sought, and it is therefore unnecessary to consider the points made by her in that regard.

The application for a writ is denied.

(179 Cal. 38)

MELVIN, J. Defendants appeal from two certain judgments against them for damages and from the orders denying their motions for new trials. The plaintiffs, who are brothers, were both injured August 14, 1913, while at work in a trench excavated for the purpose of laying water pipes in Sixteenth street in the city of Los Angeles. They were workmen employed by the defendant board of public service commissioners of the city of Los Angeles. The other defendants were the city of Los Angeles, E. R. Flores, foreman in charge of the work, and the individuals composing the board of public service commissioners. Plaintiffs were nonsuited as to their asserted causes of action against the members of the board. The two complaints were essentially the same; the only differences arising from the fact, as pleaded, that one brother was more seriously injured than the other. There was a general demurrer to each complaint, which was overruled in each case. Appellants contend that the court

NOAKES v. CITY OF LOS ANGELES et al. erred in failing to sustain the demurrers, in

(two cases). (L. A. 4574.)

(Supreme Court of California. Sept. 24, 1918.) 1. PLEADING 403(4)-CURING OF DEFECTS -DEFECTIVE COMPLAINT - ANSWER - EVIDENCE.

Where demurrer was overruled, failure to allege that employers failed to provide safe place for work, and that he should have known place was unsafe, was cured by answer raising such issues, and by evidence and requested instructions relating thereto.

2. MASTER AND SERVANT 289(35)-INJURY TO EMPLOYÉ-ACTIONS-JURY QUESTION.

In employé's action against city for injuries sustained in water main excavation, caused by caving in of walls, whether city had provided safe place for work, which had been made unsafe by disobedience of orders by injured employé, held for jury.

refusing to grant a motion for nonsuit in each case, and because of error in one of the instructions to the jury.

The complaint in each instance alleged that the city was engaged in the business of selling and supplying water to its inhabitants; that the board of public service commissioners was the administrative branch of the government in charge of the water system; that on August 14, 1913, said board was excavating a trench on Sixteenth street and installing therein a main for use in its business of distributing water; that the plaintiff was working in said trench as a laborer, and as a servant of the city and its said board, under the immediate direction and control of defendant Flores; that while plaintiff was so employed the sides of the trench suddenly fell upon him, crushing and injuring him in a manner and to an extent specified; and "that said injuries and damage and said falling of the walls of said trench were and are due to the negligence of Rule requiring employer to provide safe defendants in failing to take proper, or any, place for work applied, where actual construc-precautions to prevent said walls from cav

3. MASTER AND SERVANT 286(19)-NONSUIT -CONFLICTING EVIDENCE.

In city employé's action for injuries sustained in water main trench, where evidence as to whether city had provided employés safe place in which to work was conflicting, there was no error in denying motion for nonsuit.

4. MASTER AND SERVANT 107(5)—INJURY TO SERVANT-SAFE PLACE.

ing in, and in leaving them in an unsafe, in- being a substantial conflict. secure, and dangerous condition."

It is contended that the demurrer in each case should have been sustained, because [4] The instruction criticized by appellants of lack of averment in the complaint that the is denounced merely because it was prediinjury was the natural and proximate result cated upon the rule requiring an employer of the negligence of defendants; because said to provide a safe place for his workmen. As pleading does not, if taken as true, show the actual construction of the trench was that defendants failed to exercise reasonable completed before plaintiffs entered it, the apcare to provide a safe place to work; because plicability of the instruction is obvious. Ryit fails to set forth any facts showing that an v. Oakland Gas, Light & Heat Co., 21 Cal. defendants knew, or should have known with | App. 14-21, 130 Pac. 693. exercise of reasonable care, that the place was unsafe; and because the "safe place" rule has no application in cases like these (citing in support of the last point Thompson v. California Construction Co., 148 Cal. 35, 82 Pac. 367).