an

with her, constitutes assault with intent to the subject. Our Code provides: “Rape is commit rape, although she may have actually

act of sexual intercourse accomplished consented and submitted without resistance to

with a female not the wife of the perpe defendant's advances.

trator, under either of the following cirDepartment 1. Appeal from superior

cumstances: 1. Where the female is under court, city and county of San Francisco;

the age of fourteen years. 2.,"-etc., enuWilliam T. Wallace, Judge.

merating a number of other circumstances Prosecution against Frank Verdegreen for

under which the offense may be accomplist assault with intent to commit rape upon a

ed. Pen. Code, $ 261. And it is further pro girl seven years old. From a conviction and

vided that one who assaults another with in. sentence to the state prison for a term of

tent to commit rape is punishable as for a years, defendant appeals. Affirmed.

felony. Id. $ 220. And it is held that the P. A. Bergerot, for appellant. Atty. Gen. latter offense is included in the former. In Fitzgerald, for the People.

the case of People v. Gordon, 70 Cal. 467, 11

Pac. 762, the precise question here presented VAN FLEET, J. Defendant was convict- arose. The defendant was convicted of ased of an assault with intent to rape, and sault with intent to rape, committed upon a was sentenced to a term of years in the state girl under 10 years of age. The evidence prison. He appeals from the judgment. did not disclose whether she consented or

The evidence disclosed that the object of resisted, and the defendant contended that the alleged assault was a girl of the age of she must be held to have consented because seven years; that she went voluntarily to she did not resist. This court said: "It the room of defendant, and submitted, with is, however, a presumption of law that a out resistance, to his advances. Upon this girl under ten years of age is incapable of evidence, defendant requested the court to consenting to the offense of rape (Pen. charge the jury that: "In an assault with Code, 8 261); and as such an offense includes intent to commit rape, there must not only an attempt to commit it, accompanied by be an intent to commit a rape, but that in- such force and violence upon the person as tent must be manifested by an assault upon constitutes an assault, a girl under ten years the person intended to be ravished. The law of age is incapable in law of consenting to requires both ingredients, and neither can the assault in connection with the attempt be dispensed with. An assault implies force to commit the offense. Whether the girl in upon one side and repulsion or want of as- fact consented or resisted was therefore imsent upon the other. An assault upon a con- material. Being incapable of consenting to senting female, young or old, is a legal im- an act of carnal intercourse, it was criminal possibility. Although a child under four

for the defendant to make an assault upon teen years of age is incapable of giving a her to commit such an act." It is true that legal consent, yet if she gives an actual con- in that case the cases above relied on by apsent there can be no assault. In a word, a pellant do not seem to have been called to child under fourteen years of age cannot le- the attention of the court, since they are neigally consent to rape upon her, yet she may her cited by counsel nor referred to in the consent to an act with intent to commit it; opinion; but we think the doctrine there and such attempt or act, if committed announced more in accord with the evident with her consent, is not an assault." This purpose and intent of our statute, and that instruction was refused, and its refusal is it should be adhered to. assigned as error. The contention of appel- It is the declared policy of our law, as exlant-in line with the principles announced in pressed in the statute, that any female unhis requested instruction is that there can der the age there fixed shall be incapable of. be no such thing as an assault upon a con- consenting to the act of sexual intercourse; senting female, regardless of the fact that and that one committing the act witb a girl she may be under the age when she can within that age shall be guilty of rape, notlegally consent to an act of sexual inter- withstanding be obtain. her actual consent. course; that while one may be convicted of The obvious purpose of this is the protection rape, or of an attempt to commit it, upon a of society by protecting from violation the female under the statutory age, notwith- virtue of young and unsophisticated girls. standing her actual consent, that he cannot To hold that one of this class, although inunder like circumstances be guilty of an as- capable of consenting to sexual commerce, sault to commit rape, because the latter of- could nevertheless give her assent to an asfense implies resistance on the part of the sault upon her person, made for the express one assaulted. In this view of the law ap- purpose of accomplishing the sexual act, pella nt is unquestionably sustained by very would be to largely emasculate the statute, excellent authority. It is so held in State and defeat in great part its beneficent obv. Pickett, 11 Nev. 255, where the same ques- Ject. It is the insidious approach and vile tion was before the court; and a like doc- tampering with their persons that primarily trine is announced in Smith v. State, 12 undermines the virtue of young girls, and Ohio St. 466, and in some English cases there eventually destroys it; and the prevention cited. But such is not the view taken by of this, as much as the principal act, must this court in construing our statute upon undoubtedly have been the intent of the leg.

a

islature. The incapacity extends to the act the provisions of an alleged lease. As a deand all its incidents. It is true that an as- fense to the action it is insisted that the sault implies force and resistance by the one corporation never executed the lease, and assaulted; and that one is not, in legal con- that it surrendered the leased premises betemplation, injured by a consensual act. But fore the rent sued for became due. The facts these principles have no application to a leading up to the litigation may be stated as case where, under the law, there can be no follows: The plaintiff executed a lease to consent. Here the law implies incapacity the defendant corporation for a certain tract to give consent, and this implication is con- of land for the term of 15 years at a monthly clusive. In such case the female is to be rental. George F. Gray, as president of the regarded as resisting, no matter what the corporation, signed the lease, and acknowlactual state of her mind may be at the time. edged it as such president. Prior to the day The law resists for her. These principles fixed for the entry under the lease, plaintiff are in keeping with the construction given notified said Gray that she had doubts as to to similar statutes in other states. In Hays the validity of it by reason of want of power v. People, 1 Hill, 352, where the same ques- in him to act for the corporation, and re tion was under discussion, Judge Cowan, quested that the board of directors of the speaking for the court, said: “The assent of corporation ratify his acts in entering into such an infant being void as to the principal the contract; whereupon said Gray forwardcrime, it is equally so in respect to the in- ed to plaintiff the following duly-certified cipient advances of the offender. That the copy of the proceedings of a meeting of the infant assented to or even aided in the pris- board of directors of the defendant, held oner's attempt cannot, therefore, as in the October 23, 1889: “At a legal meeting of the case of an adult, be alleged in his favor any board of directors of the Gray Brothers Artimore than if he consummated his purpose." ficial Stone Paving Company, incorporated, The same construction was adopted by the held at the office of the said company, on the supreme court of Michigan in People v. Mc- 23d day of October, 1889, the following resoDonald, 9 Mich. 150. We think the offered lution was adopted and a copy ordered to be instruction was properly refused. The judg- sent to Mrs. Laura L. Hawley: "Resolved, ment is affirmed.

that the board of directors of the Gray Broth

ers Artificial Stone Paving Company hereby We concur: GAROUTTE, J.; HARRI. confirms the action of its president, G. F. SON, J.

Gray, in making the lease dated October 3, (106 Cal. 337)

1889, of the property on Berry and Channel HAWLEY v. GRAY BROS. ARTIFICIAL

streets, between Sixth and Seventh streets, STONE PAVING CO. (No. 15,801.) 1

in San Francisco, for the term of fifteen (Supreme Court of California. March 11, 1895.)

years from December 1, 1889, from Laura L.

Hawley, of Oakland, California. The Gray CORPORATIONS-CONTRACTS OF PRESIDENT.

Brothers A. S. P. Co., Incorporated, F. F. 1. A resolution of a board of directors of a corporation authorizing the president "to make

Ward, Secretary. (Corporate Seal.]'” At and sign contracts" in its name, “and do a gen

the time this purported certified copy of the eral business for said corporation," authorizes minutes of the board was sent, and accomhim to lease premises for the use of the corporation, and which are necessary for carrying on

panying it, was a letter from Gray, directed its business.

to the plaintiff, to the effect that her pre2. It is within the power of the president vious letter had been receiyed, and “Inclosed of a corporation to furnish the lessor of premises please find copy of resolution, which I hope leased by him for corporate purposes with evidence that the corporation has ratified the lease

is correct. Yours, respectfully, G. F. Gray.” by what purports to be a certified copy of a

Thereafter the corporation entered into posresolution of the board of directors, and his act session of the premises, paid the rent, as proin doing so is binding on the corporation, which vided in the lease, for several years, and cannot repudiate it on the ground that no such resolution had ever been, in fact, passed.

then vacated. At the trial, defendant offered

in evidence the record of the minutes or Department 1. Appeal from superior court,

various meetings of the board of directors, city and county of San Francisco; J. C. B.

which showed no action of the board whatHebbard, Judge.

ever in accordance with the resolution furAction by Laura L. Hawley against the Gray Bros. Artificial Stone Paving Compa

nished by Gray to the plaintif. The defend

ant also proposed to show by the parol evi. ny to recover rent under an alleged lease

dence of Gray and others that no such action executed by the president of the defendant

was ever taken by the board, but this line corporation. From a judgment in favor of

of evidence was rejected by the trial court. plaintiff, defendant appeals. Affirmed.

Some months prior to the date of the aforeFisher, Ames, Jacobs & Wolfe, for appel- said lease, the board of directors of defend. lant. Warren Olney, for respondent.

ant adopted a resolution authorizing the

president of the corporation, Mr. George F. GAROUTTE, J. This action was brought

Gray, “to make and sign contracts in the to recover $500 claimed to be due to plaintiff name of the corporation

and do a trom defendant corporation for rent under general business for said corporation." 1 Rehearing denied.

1. We think the power given to Gray b. v.33p.p0.6–39

the above authorization of the board of di- demands, it would be bound by it, and could rectors sufficiently broad and comprehensive not impeach it. The act being done by its to include the right to lease premises for the business manager and president, within the use of the corporation. The language of the scope of his powers and duties, the corporaresolution expressly gives the power to make tion likewise is bound by it, and is estopped contracts. The leasing of the premises, and from denying it. We conclude, therefore, the agreement to pay a certain amount of that the genuineness of the resolution furrent therefor, was but the making of a con- nished by Gray to plaintiff, ratifying his acts tract. Under this authorization, the presi- in leasing the premises, cannot be assailed, dent, Gray, had the power to make any con- and that it was full and complete in its terms tract involving any sum of money which as a ratification of Gray's acts there can be came within the general scope of the busi- no question. For the foregoing reasons, the ness of the corporation. The binding force judgment and order are affirmed. of the lease as to the defendant was but an agreement upon its part to pay a certain sum We concur: HARRISON, J.; VAN FLEET, of money at certain stated times. Such an J. agreement Gray had the right and the power to make, if the subject-matter thereof came within the proper scope and limits of the

(106 Cal. 257) business of the corporation. We think it ap

DE BAKER V. SOUTHERN CAL. RY. CO. parent that the leasing of these premises

(No. 19,391.) came within the scope of such power. The

(Supreme Court of California. March 8, 1895.) leased premises were used by the corpora

OBSTRUCTION OF WATER COURSE - OVERFLOW OF

LAND-PLEADING-LIABILITY OF CITY tion for several years in the conduct of its

CONTRACTOR-EVIDENCE. business. The premises were necessary to

1. A pleading is not demurrable for want the conduct of the business; just as neces- of facts of which the court will take judicial sary as the materials used in carrying out its notice. contracts. For these reasons we believe the

2. A court may take judicial notice of the

boundaries of an incorporated city, and of the authority given to the president, as shown

location and course of a river frequently menby the records of the board of directors, suffi- tioned in the public statutes of the state. cient to carry the power to make the lease.

3. A pleading containing statements rela

tive to the east bank" and the "west bank" of 2. The evidence discloses that the corpora

a river sufficiently indicates its course. tion entered under the lease made by its presi- 4. In an action for injuries caused to plaindent, and occupied the premises, paying rent tiff's land by the obstruction of the channel of a therefor at the times and in the amounts

river by defendant's levee, the location of the

land with relation to such river and levee is suffistated in the writing. Under such circum

ciently shown by allegations that the levee was stances it is possible that the corporation so situated that it changed the natural course might be held to know the contents of the

of the river, and caused it to flow over and uplease, and to have ratified its provisions by

on the plaintiff's land.

5. In an action for damage caused by obsuch acts and conduct upon its part. Still, structing the course of a stream, it is error to it is not necessary to an affirmance of the strike out the special defense that such ob

struction was built by the defendant as a conjudgment that this court should so declare.

tractor for the city, which owned the lands on But it is plain that under the general powers which it was located, in order to protect such vested in Gray by the aforesaid resolution, lands, and so as not to affect the channel except taken in connection with his general powers

in times of flood, and not for defendant's own

benefit. as president of the corporation, it was his

6. An error in striking out portions of a duty to secure suitable premises for the occu- pleading is not harmless because the evidence inpation of the defendant, and to look after

troduced under the amended pleading contra

dicts the matter so struck out. the general details leading up to the making

7. Where a contractor constructs for a city of the lease. These were duties peculiarly a work which, by reason of its nature and locaand essentially resting upon him, and duties tion, causes damage to another, which might which, from the evidence, it is plain he un

have been prevented by the exercise of reason.

able prudence as to the plan and location of such dertook and performed. In the performance

work, the contractor and the city are severally of his duty in this particular line he was liable. called upon to furnish the owner of the 8. Under a pleading setting up that a cer

tain levee was built for the protection of delot with evidence that the corporation rati

fendant's railroad property, the city ordinance fied and sanctioned the lease; and, in re

granting the right to locate such railroad and sponse to that demand, he did furnish the levee in the city is admissible to prove that they owner with a purported certified copy of a

were legally so located.

9. A city which is directed and authorized resolution of the board of directors, ratifying

by legislative act to improve a channel and and confirming his acts in making the lease. banks of a river therein is not liable to one in. This act of Gray was within the scope of

jured by an horest error of judgment on the his power, and in the line of his duty as

part of the authorities in locating and planning

such improvements. president and business manager of the cor- 10. A city ordinance passed under legislative poration; and, such being the fact, his act authority, providing for an improvement of the in furnishing the resolution was the corpora

banks of a stream, is not void because it fails to

provide for compensation to one whose land is tion's act. If the corporation had handed this

injured by a change in the channel of the stream resolution to the plaintiff in response to her caused by such improvement.

In bank. Appeal from superior court, Los beyond said point to the southern charter Angeles county; Walter Van Dyke, Judge. line of the city. The line of the levee, down

Action by Amelia B. De Baker against the to the point designated in the ordinance Southern California Railway Company (a and grant of the city, seems to have been corporation). From a judgment for the located on or beyond the western bank of plaintiff, and an order denying a motion for the river, and wholly outside of the river a new trial, defendant appeals. Reversed. bed. But defendant's predecessor did not

stop at the point so designated; it continued C. N. Sterry and W. J. Hunsaker, for ap

the levee in a direct line to the southern pellant. Wells, Monroe & Lee, for respond

charter boundary, as stated, and in so doing ent.

extended it into and nearly across the river

bed. As so constructed, this levee, which is BEATTY, C. J. The plaintiff in this ac- protected on its eastern face by piling and tion is the owner of a large tract of land ly. planking, intersects the west bank of the ing adjacent to and partly within the char- river about a mile above the charter line at ter boundaries of the city of Los Angeles. a point where the river bed curves to the The defendant is a railway corporation, west, and at its lower extremity approaches formed by the consolidation of several older to within 300 feet of the eastern bank,-the corporations, whose properties it has ac- distance between the natural banks at that quired and whose obligations it has as- point being fully 2,300 feet. This levee was sumed. The Los Angeles river flows through commenced in 1877, and completed in 1888. the city of Los Angeles from north to south. In January, 1890, occurred one of those unOrdinarily it is a small stream, and within usual floods in the Los Angeles river above the limits of the city is confined to a narrow referred to, and the water, being prevented channel, which sometimes flows in one place by the levee from spreading out over the and sometimes in another, over a sandy bed river bed, as it had formerly done, was diabout a half a mile in width, which is rected with such force against the eastern bounded on the east by a well-defined and bank a short distance south of the charter comparatively high natural bank, and on the line that it cut a new and permanent chanwest by a bank considerably lower and less nel through the lands on and adjacent thereplainly defined. Owing, however, to the fact to, including the tract owned by plaintiff. that the river has its sources in the high The damage sustained by plaintiff consisted mountains near the city, it is subject during in the washing away of a considerable acrethe rainy season to sudden floods, which fill age of land, the deposit of sand and bowlders the entire bed of the stream, and frequent- on other portions, the division of the tract ly overflow its banks. Occasionally, at ir- into two parts separated by the new and regular intervals of from 2 to 20 years, dur- permanent channel of the river, destruction ing the last 50 years, such floods have of fences, etc. This action was brought for reached an extraordinary height, carrying the recovery of such damages; the plaintiff away dwellings and other structures erected had judgment in the superior court; and the near the banks of the stream. The city of defendant appeals from the judgment and Los Angeles, as successor to the pueblo,-the an order denying its motion for a new trial. original owner of most of the lands within The foregoing statement of the case is the charter limits.---granted to one of the based upon the evidence adduced at the predecessors of defendant a strip of land, trial, and is necessary to a proper discusincluding the west bank and a large portion sion of the exceptions of the defendant to of the bed of the Los Angeles river, and ex- the rulings of the superior court upon obtending from the southern patent line of the jections to evidence, and in giving, refusing, pueblo lands (which is parallel to and about and modifying instructions requested by the 1,200 feet north of the southern charter line parties. It will also serve to illustrate some of the city) aorthward, along the river, for a of the points involved in the assignments of distance of several miles. This grant also error in regard to the order overruling the included a right of way for railway tracks defendant's demurrer to the complaint, and along and across the streets of the city; and the order striking out of the original answer such tracks, with the necessary sidings, turn- the principal matter of defense therein alouts, etc., have since been laid and operated leged, which assignments will be first conby the grantees, including the defendant. sidered. The lands so granted, as well as other ad- The demurrer to the complaint was general jacent lands within the city, were, however, for want of facts, and the principal point subject to overfiow from the river floods, and urged in its support is that the facts alleged one of the conditions of the grant was that do not show that the defendant, or its predthe grantee should erect a levee for the pro- ecessor, violated any duty to the plaintiff, tection of such lands along the western line because they do not show how her land was of the tract granted, down to a designated situated in relation to the Los Angeles river, point below First street. Such levee was or to the levee complained of; and, conseaccordingly built by the grantee down to quently, that it does not appear from the althe point designated, and more than a mile legations of the complaint that the builders

of the levee had any reason to anticipate low on the west side and high on the east; damage to her lands from the work in which that during the rainy season the river spreads they were engaged. The complaint is cer- over a large area of country, especially on tainly not as definite and specific in regard the west side; that the channel of the river to the relative situation of the plaintiff's land is tortuous and irregular; that the defendto the defendant's levee as it might easily ant and its predecessors, disregarding the have been made; but with the aid of certain current of said river and the quantity of facts, of which the courts may take judicial water usually flowing down during the rainy notice, its deficiencies in this respect can be season, and disregarding the natural channel supplied. The boundaries of the city of Los of said river, carelessly and negligently built Angeles are defined in the act of incorpora- and constructed said levee, and have since tion by reference to the public surveys of the maintained it in such a manner as to obUnited States, and, the lands of plaintiff be- struct the natural channel thereof and the ing described by reference to the same sur- natural flow of the water, and have so narveys, we are enabled to spell out the fact that rowed the channel as to cause the water flowthe northwestern corner of the plaintiff's ing therein to diverge from its natural course lands constituted the southeastern corner of and its usual flow over and upon the lands of the city according to the act of incorporation, plaintiff, by reason whereof the water so diof which, as a public act of the legislature verted did on or about the 26th of January, of California, we take judicial notice. In 1890, begin to flow and ever since has flowed the same way we know the relative position out of its natural channel, in and upun the of the entire tract to the corporate bound- aforesaid lands of plaintiff, and cut, destroyaries of the city. The Los Angeles river, ed, and carried away a large quantity of also, is mentioned in more than one public land, and rendered a large quantity unfit for statute, and no doubt we may properly take use, covering the same with bowlders and judicial notice of the fact that it flows from sand, and cutting a large and deep channel north to south through the city of Los An- through said land, where the stream congeles, and near its eastern limits. But, even tinues to flow, destroying about 900 acres, etc. if we cannot take notice of these facts, the Certainly these facts, if true, gave plaintiff complaint alleges that said river flows down a right of action, if the situation of her land through “the city.” In what direction it was such as to cast any duty of guarding flows is not stated, but from the allegations against damage to her upon the builders of that it has an east bank and a west bank, the levee, and we think that, considering its and that the obstruction of its channel and proximity to the east bank of the river, and diversion of its current by a levee erected the fact that the actual and direct consealong or partly along the west bank within quence of the diversion of the river was to the city causes the river to cut through the cause it to cut and flow in a new channel east bank and flow across the lands of plain- across her lands, a prima facie case of actiff, which, as we have seen, adjoin the city tionable negligence was made out. This is on the southeast, it may be inferred that the not like the case of Lamb v. Reclamation situation and flow of the stream are as above Dist. No. 108, 73 Cal. 125, 14 Pac. 625, and stated. That the words "the city," which oc- other similar cases, in which it has been held cur several times in the complaint, mean the that the erection of a levee along the banks city of Los Angeles, appears from their use of our rivers to keep out flood waters gives in the description of plaintiff's lands in con- no right of action to those upon whose unnection with boundaries which can only be- protected lands the flood is thereby made to long to that particular city. As to this mat- rise higher. Here, according to the allegater, therefore, of the relative situation of tions, the levee was built in the bed of the plaintiff's lands and the levee, the complaint, stream, obstructing and narrowing the chanthough lacking in directness and precision, nel, directing the current against the opis sufficient as against a general demurrer, posite bank, and causing it to cut a new chan. and the other facts alleged make out a prima nel across plaintiff's lands, where it perfacie case of violation of rights of the plain- manently flows. These facts broadly distintiff, which it was the duty of defendant's guish the present case from those referred to. predecessors to regard. It is alleged in sub- No natural person, or corporation organized stance that, for the purpose of reclaiming for the profit of its stockholders, has a right and securing to themselves certain lands to inflict damage of this character upon anwhich had theretofore been inundated, they other; and to allege that such acts have been commenced and undertook to build a levee carelessly and negligently done is, perhaps, along the western side of the Los Angeles sufficient to show a cause of action without river; that they constructed said levee in a any showing as to the relative situation of straight line down said river from First the land and the obstruction complained of. street without regard the bed of the stream Stephenson v. Pacific Co. 102 Cal. 146, 34 or the channel thereof, or where the water Pac. 618, and 36 Pac. 407. Here, however, usually flowed, thereby diverting the same the relative situation of the land and the into a new channel; that the river flowed levee is shown in the manner above stated, down througb the city; that its banks were and sufficiently, in our opinion, to throw up