DIVORCE (Continued). 2. SEPARATION AGREEMENT-CONDONATION.-An agreement executed by a husband and wife eight days after the desertion of the former by the latter, by which they mutually agree to live separate and apart from each other, is in the nature of a condonation, and in effect the same as though defendant had returned to her home, and after the restoration of the marital relation for a time had again left with intent to desert plaintiff, the date of desertion being the last departure; and an action for divorce brought within a year from the latter date is premature. (Id.) 3. SEPARATION AGREEMENT WHEN BINDING.-A separation agree ment in the absence of a claim that the signature of either party was obtained by fraud, duress, or undue influence, and no reformation being sought for mutual mistake, is binding, although one of the parties claims that she did not intend to sign a contract of separation, and did not understand its terms when she executed it, and that the other party did not understand its purport, and therefore there was no meeting of minds. (Id.) 4. ACTION FOR DIVORCE - · DENIAL OF DECREE AWARD OF ALIMONYEFFECT OF ACCEPTANCE-WAIVER OF RIGHT OF APPEAL.-Where, in an action for divorce, a decree is denied to both parties, but an award of alimony is made to the wife, her acceptance of the payments of the alimony awarded estops her from making a motion for a new trial for the purpose of having the judgment reviewed on appeal. (McCaleb v. McCaleb, 648.) 5. JUDGMENT-PART ACCEPTANCE-APPEAL FROM REJECTED PORTIONRULE. Where the different provisions of a judgment are so connected that a part cannot be reversed without a reversal of the whole, a party is not permitted to enforce the provisions of the judgment in his or her favor and appeal from the adverse portions thereof. (McCaleb v. McCaleb, 648.) See Contempt, 3; Husband and Wife, 5-11; Judgment. ELECTRICITY. See Negligence, 3-6. ELEVATOR. See Negligence, 7. EMBEZZLEMENT. See Criminal Law, 20, 21. EMINENT DOMAIN. 1. ABANDONMENT OF PROCEEDINGS-DISMISSAL OF ACTION-PROCEDURE. In an action in eminent domain where the plaintiff proposes to abandon the proceedings, the judgment of dismissal of the action which is to be entered is not the one which the clerk of the court is authorized to enter under the provisions of section 581 of the Code of Civil Procedure, but is the one entered by the court upon motion of the EMINENT DOMAIN (Continued). defendant as provided by section 1255a of such code. (Silver Lake Power and Irrigation Company v. City of Los Angeles, 123.) 2. ATTORNEY'S FEES AS COSTS-CONSTITUTIONAL PROVISION.-The portion of section 1255a of the Code of Civil Procedure which authorizes the court upon the abandonment by the plaintiff of a proceeding in eminent domain to include in the costs assessed against the plaintiff the fee of the defendant's attorney in the proceeding, is not violative of the fourteenth amendment of the constitution of the United States, nor of the provisions of the constitution of the state of California requiring that laws of a general nature shall be uniform in their operation and prohibiting the passage of special laws. (Id.) 3. SURVEYED SCHOOL LANDS WITHIN FEDERAL RESERVATION.-School lands situated within the boundaries of a federal forest reservation, which had been surveyed before they were included in the reservation, may be taken in eminent domain proceedings against the state. (Pacific Power Company v. State of California, 175.) 4. RESERVATION OF STATE LANDS FROM SALE RIGHT OF CONDEMNATION NOT AFFECTED.-The statutes of this state do not say that state lands reserved from sale, or state lands not offered for sale, shall not be subject to the right of eminent domain. They declare that all the lands of the state shall be subject to this right, saving such lands alone as are devoted to a public use. (Id.) 5. CONDEMNATION OF UNSURVEYED SCHOOL LANDS WITHIN FEDERAL RESERVATION-ACTION AGAINST STATE-DISCLAIMER OF OWNERSHIP -RIGHT OF APPEAL FROM JUDGMENT.-In an action brought against the state of California to condemn for public use unsurveyed school lands included within the exterior boundaries of a national forest reservation, the state is not a party aggrieved, and has no right of appeal from a judgment condemning the land and awarding it compensation, where in its answer at the trial, on the appeal, and at all times it disclaimed any ownership in the lands and asserted that they belonged to the United States. (Mono County Irrigation Company v. State of California, 184.) 6. APPEAL DISCLAIMER OF INTEREST IN JUDGMENT-PARTY NOT AGGRIEVED. Where a party appeals from a judgment which apparently may affect him injuriously, and upon the hearing of the appeal he openly and emphatically declares that he is not interested in the subject matter of the litigation, he assumes an attitude from which it must be concluded that he is not and cannot be aggrieved by the judgment. (Id.) 7. CONSTRUCTION OF STORM DRAINAGE CANAL-TENDENCY TO FLOOD LAND NOT TAKEN EVIDENCE.-In an action brought by a county to condemn a strip of land through a larger tract owned by the defendant, over which the county proposed to construct a canal for the EMINENT DOMAIN (Continued). purpose of carrying flood-waters which in times of heavy rains accumulated upon the watershed contiguous to such tract, it is proper to admit evidence tending to show that the construction of such a drainage canal would subject the lands of the defendant not taken to danger from flooding, and thereby materially impair their market value. (County of Los Angeles v. Sullivan, 325.) 8. LANDS WITH GROWING CROPS - AWARD OF DAMAGES VALUE OF CROPS NOT INCLUDED-RECOVERY BY TENANT.-In an action for the condemnation of orchard lands in the possession of a tenant, under a lease which provided that the lease should terminate in the event that any of the demised lands should be condemned for public use, the tenant cannot recover the value of the crops growing on the lands at the time of the condemnation proceedings out of the damages awarded to the landlord, where he was made a defendant in the condemnation proceedings, but did not appear therein, or make any claim for damages on account of the taking of the right to remove the crops, and no evidence was introduced as to their value, or that he was prevented from harvesting them, or that plaintiff took possession of the lands before the crops were harvested. (Vallejo and Northern Railroad Company v. Reed Orchard Company, 347.) 9. AGREEMENT OF TENANT AS TO PROCEEDS OF CROPS - PENDENCY OF ACTION TO DETERMINE RIGHTS-RECOVERY PREVENTED.-Such a tenant cannot recover the value of the crops from his landlord out of the award of condemnation, where he entered into an agreement with the plaintiff and others, whereby he was entitled to retain possession of the lands and harvest the crops therefrom, the proceeds to be deposited in a bank to be paid to the person or persons finally determined to be entitled thereto, and a suit was pending in the federal court to determine such rights. (Id.) 10. STREET RAILROAD PROPERTY DAMAGES · - EVIDENCE.-In an action brought by a municipal corporation for the condemnation of certain lands for the opening and widening of a street, pursuant to proceedings had under the Street Opening Act of 1903, a street railroad corporation which owns a right of way over a part of the lands sought to be condemned, and upon which it maintains and operates a railroad, is entitled to introduce evidence of the nature and extent of the proposed improvement, and the changes in the railroad required thereby, for the purpose of showing the extent of its damage. (City of Los Angeles v. Allen, 553.) 11. CONSTITUTIONAL LAW TAKING OF STREET RAILROAD PROPERTYCOMPENSATION.-Taking of property of a street railroad for street purposes, longitudinally covering its right of way, is a taking within the meaning of article I, section 14, of the constitution, providing EMINENT DOMAIN (Continued). that private property shall not be taken for public use without just compensation. (Id.) 12. MEASURE OF DAMAGES.-The measure of damages for property of a street railroad taken by a city for street use, longitudinally covering its right of way, is the decrease in value of the use of the land for railroad purposes by reason of its use for street purposes. (Id.) 13. ORDER GRANTING NEW TRIAL - VALUE OF PROPERTY CONFLICT OF EVIDENCE-PRESUMPTION ON APPEAL.-On an appeal from an order granting a new trial in an action in eminent domain, where there is a pronounced conflict in the evidence on the question of the value of the property sought to be condemned, the appellate court is authorized to presume, in support of the order, that one of the reasons allowing the motion was that the evidence was insufficient to support the verdict. (Pacific Gas & Electric Co. v. Rollins, 782.) 14. CONDEMNATION OF MINING PROPERTY-RIGHT OF WAY FOR CONVEYANCE OF WATER-VALUE-CONFLICT OF EVIDENCE-ORDER GRANTING NEW TRIAL-DISCRETION.-In an action in eminent domain to condemn certain mining property for a right of way to convey water, where the witnesses for the defendant testified that the value of all the defendant's properties was from one hundred thousand dollars to one hundred and twenty-five thousand dollars, and the plaintiff's witnesses testified that the properties were valueless, for any purpose, an order granting a new trial on the ground of the insufficiency of the evidence to support the verdict fixing the value at four thousand dollars is not an abuse of discretion. (Id.) EMPLOYER AND EMPLOYEE. See Contract, 2-4, 6-10; Negligence, 1, 2, 7–10, 14–16; Workmen's Compensation Act. ESTATES OF DECEASED PERSONS. See Parent and Child. EVIDENCE. 1. BOOKS OF ACCOUNT - TESTIMONY OF MANAGER OF PLAINTIFF.-In an action to recover an alleged balance due for lumber sold and delivered, books of account containing the original charges are properly admitted in evidence, upon the testimony of the manager of the lumber company that the books were kept under his direction and were correct, although the entries were made by other employees. (Montgomery & Mullen Lumber Company v. Ocean Park Scenic Railway Company, 32.) 2. ACCOUNT-BOOKS-FOUNDATION FOR ADMISSION.-In order to lay the foundation for the admission of such evidence it must be shown that the books in question are books of account kept in the regular course of the business, that the business is of a character in which it is proper or customary to keep such books, that the entries were EVIDENCE (Continued). either original entries or the first permanent entries of the transactions, that they were made at the time, or within reasonable proximity to the time, of the respective transactions, and that the person making them had personal knowledge of the transactions, or obtained such knowledge from a report regularly made to him by some other person employed in the business whose duty it was to make the same in the regular course of business. (Id.) 3. ADMISSION OF EXHIBITS.-Where the record shows that certain exhibits "were introduced in evidence and marked for identification," it cannot be successfully contended that the exhibits were merely produced for identification. (Consolidated Lumber Co. v. Frew, 118.) - 4. ORAL EVIDENCE - CONTRADICTION OF WRITING.-In an action on a promissory note given on a claim for lumber sold, evidence that the note was given subject to the terms of an oral understanding that a deduction would be made on account of some quantity of lumber not delivered, is inadmissible where it is not claimed that the note was obtained by fraud, or that by reason of any mistake the parties failed to understand the writings signed by them. (Id.) 5. IMPEACHMENT OF WITNESS-EXCEPTION TO RULE.-A party calling a witness is not precluded from proving the truth of any particular fact by any other competent evidence in direct contradiction to what such witness may have testified; and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief. (Callahan v. Danziger, 405.) See Agency, 4; Appeal, 5, 6; Broker, 3, 4; Certiorari, 2-4, 9; EXCHANGE. See Broker, 3-7. EXECUTION. See Appeal, 7; Conversion; Justice's Court, 5; Pledge. FALSE PRETENSES. See Criminal Law, 15–17. FEES. See Office and Officers, 1-4. FINDINGS. See Appeal, 5. FOREST RESERVE. See Eminent Domain, 3-6. |