with her, constitutes assault with intent to commit rape, although she may have actually consented and submitted without resistance to defendant's advances. Department 1. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge. Prosecution against Frank Verdegreen for assault with intent to commit rape upon a girl seven years old. From a conviction and sentence to the state prison for a term of years, defendant appeals. Affirmed. P. A. Bergerot, for appellant. Atty. Gen. Fitzgerald, for the People. VAN FLEET, J. Defendant was convicted of an assault with intent to rape, and was sentenced to a term of years in the state prison. He appeals from the judgment. The evidence disclosed that the object of the alleged assault was a girl of the age of seven years; that she went voluntarily to the room of defendant, and submitted, without resistance, to his advances. Upon this evidence, defendant requested the court to charge the jury that: "In an assault with intent to commit rape, there must not only be an intent to commit a rape, but that intent must be manifested by an assault upon the person intended to be ravished. The law requires both ingredients, and neither can be dispensed with. An assault implies force upon one side and repulsion or want of assent upon the other. An assault upon a consenting female, young or old, is a legal impossibility. Although a child under fourteen years of age is incapable of giving a legal consent, yet if she gives an actual consent there can be no assault. In a word, a child under fourteen years of age cannot legally consent to rape upon her, yet she may consent to an act with intent to commit it; and such attempt or act, if committed with her consent, is not an assault." This instruction was refused, and its refusal is assigned as error. The contention of appellant-in line with the principles announced in his requested instruction-is that there can be no such thing as an assault upon a consenting female, regardless of the fact that she may be under the age when she can legally consent to an act of sexual intercourse; that while one may be convicted of rape, or of an attempt to commit it, upon a female under the statutory age, notwithstanding her actual consent, that he cannot under like circumstances be guilty of an assault to commit rape, because the latter offense implies resistance on the part of the one assaulted. In this view of the law appellant is unquestionably sustained by very excellent authority. It is so held in State v. Pickett, 11 Nev. 255, where the same question was before the court; and a like doctrine is announced in Smith v. State, 12 Ohio St. 466, and in some English cases there cited. But such is not the view taken by this court in construing our statute upon In the subject. Our Code provides: "Rape is an act of sexual intercourse accomplished with a female not the wife of the perpe trator, under either of the following circumstances: 1. Where the female is under the age of fourteen years. 2.,"-etc., enumerating a number of other circumstances under which the offense may be accomplish ed. Pen. Code, § 261. And it is further provided that one who assaults another with intent to commit rape is punishable as for a felony. Id. § 220. And it is held that the latter offense is included in the former. the case of People v. Gordon, 70 Cal. 467, 11 Pac. 762, the precise question here presented arose. The defendant was convicted of assault with intent to rape, committed upon a girl under 10 years of age. The evidence did not disclose whether she consented or resisted, and the defendant contended that she must be held to have consented because she did not resist. This court said: "It is, however, a presumption of law that a girl under ten years of age is incapable of consenting to the offense of rape (Pen. Code, § 261); and as such an offense includes an attempt to commit it, accompanied by such force and violence upon the person as constitutes an assault, a girl under ten years of age is incapable in law of consenting to the assault in connection with the attempt to commit the offense. Whether the girl in fact consented or resisted was therefore immaterial. Being incapable of consenting to an act of carnal intercourse, it was criminal for the defendant to make an assault upon her to commit such an act." It is true that in that case the cases above relied on by appellant do not seem to have been called to the attention of the court, since they are neither cited by counsel nor referred to in the opinion; but we think the doctrine there announced more in accord with the evident purpose and intent of our statute, and that it should be adhered to. It is the declared policy of our law, as expressed in the statute, that any female under the age there fixed shall be incapable of consenting to the act of sexual intercourse; and that one committing the act with a girl within that age shall be guilty of rape, notwithstanding he obtain. her actual consent. The obvious purpose of this is the protection of society by protecting from violation the virtue of young and unsophisticated girls. To hold that one of this class, although incapable of consenting to sexual commerce, could nevertheless give her assent to an assault upon her person, made for the express purpose of accomplishing the sexual act, would be to largely emasculate the statute, and defeat in great part its beneficent object. It is the insidious approach and vile tampering with their persons that primarily undermines the virtue of young girls, and eventually destroys it; and the prevention of this, as much as the principal act, must undoubtedly have been the intent of the leg islature. The incapacity extends to the act and all its incidents. It is true that an assault implies force and resistance by the one assaulted; and that one is not, in legal contemplation, injured by a consensual act. But these principles have no application to a case where, under the law, there can be no consent. Here the law implies incapacity to give consent, and this implication is conclusive. In such case the female is to be regarded as resisting, no matter what the actual state of her mind may be at the time. The law resists for her. These principles are in keeping with the construction given to similar statutes in other states. In Hays v. People, 1 Hill, 352, where the same question was under discussion, Judge Cowan, speaking for the court, said: "The assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender. That the infant assented to or even aided in the prisoner's attempt cannot, therefore, as in the case of an adult, be alleged in his favor any more than if he consummated his purpose." The same construction was adopted by the supreme court of Michigan in People v. McDonald, 9 Mich. 150. We think the offered instruction was properly refused. The judg HAWLEY v. GRAY BROS. ARTIFICIAL 1. A resolution of a board of directors of a corporation authorizing the president "to make and sign contracts" in its name, "and do a general business for said corporation," authorizes him to lease premises for the use of the corporation, and which are necessary for carrying on its business. 2. It is within the power of the president of a corporation to furnish the lessor of premises leased by him for corporate purposes with evidence that the corporation has ratified the lease by what purports to be a certified copy of a resolution of the board of directors, and his act in doing so is binding on the corporation, which cannot repudiate it on the ground that no such resolution had ever been, in fact, passed. Department 1. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by Laura L. Hawley against the Gray Bros. Artificial Stone Paving Company to recover rent under an alleged lease executed by the president of the defendant corporation. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Fisher, Ames, Jacobs & Wolfe, for appellant. Warren Olney, for respondent. GAROUTTE, J. This action was brought to recover $500 claimed to be due to plaintiff from defendant corporation for rent under 1 Rehearing denied. v.33P.no.6-39 the provisions of an alleged lease. As a defense to the action it is insisted that the corporation never executed the lease, and that it surrendered the leased premises before the rent sued for became due. The facts leading up to the litigation may be stated as follows: The plaintiff executed a lease to the defendant corporation for a certain tract of land for the term of 15 years at a monthly rental. George F. Gray, as president of the corporation, signed the lease, and acknowledged it as such president. Prior to the day fixed for the entry under the lease, plaintiff notified said Gray that she had doubts as to the validity of it by reason of want of power in him to act for the corporation, and re quested that the board of directors of the corporation ratify his acts in entering into the contract; whereupon said Gray forwarded to plaintiff the following duly-certified copy of the proceedings of a meeting of the board of directors of the defendant, held October 23, 1889: "At a legal meeting of the board of directors of the Gray Brothers Artificial Stone Paving Company, incorporated, held at the office of the said company, on the 23d day of October, 1889, the following resolution was adopted and a copy ordered to be sent to Mrs. Laura L. Hawley: 'Resolved, that the board of directors of the Gray Brothers Artificial Stone Paving Company hereby confirms the action of its president, G. F. Gray, in making the lease dated October 3, 1889, of the property on Berry and Channel streets, between Sixth and Seventh streets, in San Francisco, for the term of fifteen years from December 1, 1889, from Laura L. Hawley, of Oakland, California. The Gray Brothers A. S. P. Co., Incorporated, F. F. Ward, Secretary. [Corporate Seal.]'" At the time this purported certified copy of the minutes of the board was sent, and accompanying it, was a letter from Gray, directed to the plaintiff, to the effect that her previous letter had been receiyed, and "Inclosed please find copy of resolution, which I hope is correct. Yours, respectfully, G. F. Gray." Thereafter the corporation entered into possession of the premises, paid the rent, as provided in the lease, for several years, and then vacated. At the trial, defendant offered in evidence the record of the minutes of various meetings of the board of directors, which showed no action of the board whatever in accordance with the resolution furnished by Gray to the plaintiff. The defendant also proposed to show by the parol evidence of Gray and others that no such action was ever taken by the board, but this line of evidence was rejected by the trial court. Some months prior to the date of the aforesaid lease, the board of directors of defend. ant adopted a resolution authorizing the president of the corporation, Mr. George F. Gray, "to make and sign contracts in the name of the corporation • and do s general business for said corporation." 1. We think the power given to Gray by the above authorization of the board of directors sufficiently broad and comprehensive to include the right to lease premises for the use of the corporation. The language of the resolution expressly gives the power to make contracts. The leasing of the premises, and the agreement to pay a certain amount of rent therefor, was but the making of a contract. Under this authorization, the president, Gray, had the power to make any contract involving any sum of money which came within the general scope of the business of the corporation. The binding force of the lease as to the defendant was but an agreement upon its part to pay a certain sum of money at certain stated times. Such an agreement Gray had the right and the power to make, if the subject-matter thereof came within the proper scope and limits of the business of the corporation. We think it apparent that the leasing of these premises came within the scope of such power. The leased premises were used by the corporation for several years in the conduct of its business. The premises were necessary to the conduct of the business; just as necessary as the materials used in carrying out its contracts. For these reasons we believe the authority given to the president, as shown by the records of the board of directors, sufficient to carry the power to make the lease. 2. The evidence discloses that the corporation entered under the lease made by its president, and occupied the premises, paying rent therefor at the times and in the amounts stated in the writing. Under such circumstances it is possible that the corporation might be held to know the contents of the lease, and to have ratified its provisions by such acts and conduct upon its part. Still, it is not necessary to an affirmance of the judgment that this court should so declare. But it is plain that under the general powers vested in Gray by the aforesaid resolution, taken in connection with his general powers as president of the corporation, it was his duty to secure suitable premises for the occupation of the defendant, and to look after the general details leading up to the making of the lease. These were duties peculiarly and essentially resting upon him, and duties which, from the evidence, it is plain he undertook and performed. In the performance of his duty in this particular line he was called upon to furnish the owner of the lot with evidence that the corporation ratified and sanctioned the lease; and, in response to that demand, he did furnish the owner with a purported certified copy of a resolution of the board of directors, ratifying and confirming his acts in making the lease. This act of Gray was within the scope of his power, and in the line of his duty as president and business manager of the corporation; and, such being the fact, his act in furnishing the resolution was the corporation's act. If the corporation had handed this resolution to the plaintiff in response to her demands, it would be bound by it, and could not impeach it. The act being done by its business manager and president, within the scope of his powers and duties, the corporation likewise is bound by it, and is estopped from denying it. We conclude, therefore, that the genuineness of the resolution furnished by Gray to plaintiff, ratifying his acts in leasing the premises, cannot be assailed, and that it was full and complete in its terms as a ratification of Gray's acts there can be no question. For the foregoing reasons, the judgment and order are affirmed. We concur: HARRISON, J.; VAN FLEET, J. (106 Cal. 257) DE BAKER v. SOUTHERN CAL. RY. CO. (No. 19,391.) (Supreme Court of California. March 8, 1895.) OBSTRUCTION OF WATER COURSE OVERFLOW OF LAND-PLEADING-LIABILITY OF CITY CONTRACTOR-EVIDENCE. 1. A pleading is not demurrable for want of facts of which the court will take judicial notice. 2. A court may take judicial notice of the boundaries of an incorporated city, and of the location and course of a river frequently mentioned in the public statutes of the state. 3. A pleading containing statements relative to the "east bank" and the "west bank" of a river sufficiently indicates its course. 4. In an action for injuries caused to plaintiff's land by the obstruction of the channel of a river by defendant's levee, the location of the land with relation to such river and levee is sufficiently shown by allegations that the levee was so situated that it changed the natural course of the river, and caused it to flow over and upon the plaintiff's land. 5. In an action for damage caused by obstructing the course of a stream, it is error to strike out the special defense that such obstruction was built by the defendant as a contractor for the city, which owned the lands on which it was located, in order to protect such lands, and so as not to affect the channel except in times of flood, and not for defendant's own benefit. 6. An error in striking out portions of a pleading is not harmless because the evidence introduced under the amended pleading contradicts the matter so struck out. 7. Where a contractor constructs for a city a work which, by reason of its nature and location, causes damage to another, which might have been prevented by the exercise of reasonable prudence as to the plan and location of such work, the contractor and the city are severally liable. 8. Under a pleading setting up that a certain levee was built for the protection of defendant's railroad property, the city ordinance granting the right to locate such railroad and levee in the city is admissible to prove that they were legally so located. 9. A city which is directed and authorized by legislative act to improve a channel and banks of a river therein is not liable to one injured by an horest error of judgment on the part of the authorities in locating and planning such improvements. 10. A city ordinance passed under legislative authority, providing for an improvement of the banks of a stream, is not void because it fails to provide for compensation to one whose land is injured by a change in the channel of the stream caused by such improvement. In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Action by Amelia B. De Baker against the Southern California Railway Company (a corporation). From a judgment for the plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed. C. N. Sterry and W. J. Hunsaker, for appellant. Wells, Monroe & Lee, for respondent. BEATTY, C. J. The plaintiff in this action is the owner of a large tract of land lying adjacent to and partly within the charter boundaries of the city of Los Angeles. The defendant is a railway corporation, formed by the consolidation of several older corporations, whose properties it has acquired and whose obligations it has assumed. The Los Angeles river flows through the city of Los Angeles from north to south. Ordinarily it is a small stream, and within the limits of the city is confined to a narrow channel, which sometimes flows in one place and sometimes in another, over a sandy bed about a half a mile in width, which is bounded on the east by a well-defined and comparatively high natural bank, and on the west by a bank considerably lower and less plainly defined. Owing, however, to the fact that the river has its sources in the high mountains near the city, it is subject during the rainy season to sudden floods, which fill the entire bed of the stream, and frequently overflow its banks. Occasionally, at irregular intervals of from 2 to 20 years, during the last 50 years, such floods have reached an extraordinary height, carrying away dwellings and other structures erected near the banks of the stream. The city of Los Angeles, as successor to the pueblo,-the original owner of most of the lands within the charter limits,-granted to one of the predecessors of defendant a strip of land, including the west bank and a large portion of the bed of the Los Angeles river, and extending from the southern patent line of the pueblo lands (which is parallel to and about 1,200 feet north of the southern charter line of the city) aorthward, along the river, for a distance of several miles. This grant also included a right of way for railway tracks along and across the streets of the city; and such tracks, with the necessary sidings, turnouts, etc., have since been laid and operated by the grantees, including the defendant. The lands so granted, as well as other adjacent lands within the city, were, however, subject to overflow from the river floods, and one of the conditions of the grant was that the grantee should erect a levee for the protection of such lands along the western line of the tract granted, down to a designated point below First street. Such levee was accordingly built by the grantee down to the point designated, and more than a mile beyond said point to the southern charter line of the city. The line of the levee, down to the point designated in the ordinance and grant of the city, seems to have been located on or beyond the western bank of the river, and wholly outside of the river bed. But defendant's predecessor did not stop at the point so designated; it continued the levee in a direct line to the southern charter boundary, as stated, and in so doing extended it into and nearly across the river bed. As so constructed, this levee, which is protected on its eastern face by piling and planking, intersects the west bank of the river about a mile above the charter line at a point where the river bed curves to the west, and at its lower extremity approaches to within 300 feet of the eastern bank,-the distance between the natural banks at that point being fully 2,300 feet. This levee was commenced in 1877, and completed in 1888. In January, 1890, occurred one of those unusual floods in the Los Angeles river above referred to, and the water, being prevented by the levee from spreading out over the river bed, as it had formerly done, was directed with such force against the eastern bank a short distance south of the charter line that it cut a new and permanent channel through the lands on and adjacent thereto, including the tract owned by plaintiff. The damage sustained by plaintiff consisted in the washing away of a considerable acreage of land, the deposit of sand and bowlders on other portions, the division of the tract into two parts separated by the new and permanent channel of the river, destruction of fences, etc. This action was brought for the recovery of such damages; the plaintiff had judgment in the superior court; and the defendant appeals from the judgment and an order denying its motion for a new trial. The foregoing statement of the case is based upon the evidence adduced at the trial, and is necessary to a proper discussion of the exceptions of the defendant to the rulings of the superior court upon objections to evidence, and in giving, refusing, and modifying instructions requested by the parties. It will also serve to illustrate some of the points involved in the assignments of error in regard to the order overruling the defendant's demurrer to the complaint, and the order striking out of the original answer the principal matter of defense therein alleged, which assignments will be first considered. The demurrer to the complaint was general for want of facts, and the principal point urged in its support is that the facts alleged do not show that the defendant, or its predecessor, violated any duty to the plaintiff, because they do not show how her land was situated in relation to the Los Angeles river, or to the levee complained of; and, consequently, that it does not appear from the allegations of the complaint that the builders of the levee had any reason to anticipate damage to her lands from the work in which they were engaged. The complaint is certainly not as definite and specific in regard to the relative situation of the plaintiff's land to the defendant's levee as it might easily have been made; but with the aid of certain facts, of which the courts may take judicial notice, its deficiencies in this respect can be supplied. The boundaries of the city of Los Angeles are defined in the act of incorporation by reference to the public surveys of the United States, and, the lands of plaintiff being described by reference to the same surveys, we are enabled to spell out the fact that the northwestern corner of the plaintiff's lands constituted the southeastern corner of the city according to the act of incorporation, of which, as a public act of the legislature of California, we take judicial notice. In the same way we know the relative position of the entire tract to the corporate boundaries of the city. The Los Angeles river, also, is mentioned in more than one public statute, and no doubt we may properly take judicial notice of the fact that it flows from north to south through the city of Los Angeles, and near its eastern limits. But, even if we cannot take notice of these facts, the complaint alleges that said river flows down through "the city." In what direction it flows is not stated, but from the allegations that it has an east bank and a west bank, and that the obstruction of its channel and diversion of its current by a levee erected along or partly along the west bank within the city causes the river to cut through the east bank and flow across the lands of plaintiff, which, as we have seen, adjoin the city on the southeast, it may be inferred that the situation and flow of the stream are as above stated. That the words "the city," which occur several times in the complaint, mean the city of Los Angeles, appears from their use in the description of plaintiff's lands in connection with boundaries which can only be long to that particular city. As to this matter, therefore, of the relative situation of plaintiff's lands and the levee, the complaint, though lacking in directness and precision, is sufficient as against a general demurrer, and the other facts alleged make out a prima facie case of violation of rights of the plaintiff, which it was the duty of defendant's predecessors to regard. It is alleged in substance that, for the purpose of reclaiming and securing to themselves certain lands which had theretofore been inundated, they commenced and undertook to build a levee along the western side of the Los Angeles river; that they constructed said levee in a straight line down said river from First street without regard to the bed of the stream or the channel thereof, or where the water usually flowed, thereby diverting the same into a new channel; that the river flowed down through the city; that its banks were low on the west side and high on the east; that during the rainy season the river spreads over a large area of country, especially on the west side; that the channel of the river is tortuous and irregular; that the defendant and its predecessors, disregarding the current of said river and the quantity of water usually flowing down during the rainy season, and disregarding the natural channel of said river, carelessly and neglige_tly built and constructed said levee, and have since maintained it in such a manner as to obstruct the natural channel thereof and the natural flow of the water, and have so narrowed the channel as to cause the water flowing therein to diverge from its natural course and its usual flow over and upon the lands of plaintiff, by reason whereof the water so diverted did on or about the 26th of January, 1890, begin to flow and ever since has flowed out of its natural channel, in and upon the aforesaid lands of plaintiff, and cut, destroyed, and carried away a large quantity of land, and rendered a large quantity unfit for use, covering the same with bowlders and sand, and cutting a large and deep channel through said land, where the stream continues to flow, destroying about 900 acres, etc. Certainly these facts, if true, gave plaintiff a right of action, if the situation of her land was such as to cast any duty of guarding against damage to her upon the builders of the levee, and we think that, considering its proximity to the east bank of the river, and the fact that the actual and direct consequence of the diversion of the river was to cause it to cut and flow in a new channel across her lands, a prima facie case of actionable negligence was made out. This is not like the case of Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 Pac. 625, and other similar cases, in which it has been held that the erection of a levee along the banks of our rivers to keep out flood waters gives no right of action to those upon whose unprotected lands the flood is thereby made to rise higher. Here, according to the allegations, the levee was built in the bed of the stream, obstructing and narrowing the channel, directing the current against the opposite bank, and causing it to cut a new channel across plaintiff's lands, where it permanently flows. These facts broadly distinguish the present case from those referred to. No natural person, or corporation organized for the profit of its stockholders, has a right to inflict damage of this character upon another; and to allege that such acts have been carelessly and negligently done is, perhaps, sufficient to show a cause of action without any showing as to the relative situation of the land and the obstruction complained of. Stephenson v. Pacific Co., 102 Cal. 146, 34 Pac. 618, and 36 Pac. 407. Here, however, the relative situation of the land and the levee is shown in the manner above stated, and sufficiently, in our opinion, to throw up |