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on defendant the burden of alleging and prov- of the ordinance it is declared that “said ing due care.

levee shall be built for the public benefit The superior court did not err in overrul- of the city of Los Angeles, and is intended ing the demurrer to the complaint. The de- to confine the high waters of the Los Anmurrer having been overruled, the defendant geles river within the levee so to be confiled an answer admitting the construction, structed, and to prevent the property of the by itself and its predecessors, of a levee inhabitants of said city on the westerly side along the western side of the Los Angeles of said levee from being injured or destroyed river, but denying that it was constructed in times of high flood by waters overflowing for the purpose of reclaiming to itself lands the banks of the river.” Aside from this theretofore inundated, and denying that it declaration, the substance of the ordinance was constructed in a straight line down the is a grant to the railway company named in Los Angeles river from First street without the title--one of defendant's predecessorsregard to the bed or channel of the stream, of a strip of land bounded on the east by or where the water usually flowed, or that the west line of the official bed of the Los by means thereof the water of the river was Angeles river, and extending from the southdiverted into a new channel. For a further ern patent line of the pueblo lands several answer, and as a special and additional de- miles into the city, together with rights of fense to the action, the defendant set up a way across and along the streets of the city plea in substance as follows: That said for its tracks; the purpose of the grant belevee was constructed and has since been ing, as declared in the ordinance, "for the maintained under the terms and conditions laying down, operating, and maintaining” a of a certain ordinance of the city of Los An- steam railway for the transportation of geles, for the uses and purposes therein ex- freight and passengers, and for the construcpressed and not otherwise, and in the man- tion of switches, turnouts, depots, and other ner prescribed by the city of Los Angeles structures necessary for the successful conthrough its duly-constituted authorities, and duct of its business. This grant is made upon the line by said city declared to be the on condition (along with numerous regulaofficial western boundary of said river; that, tions and reservations for the benefit of the after the construction of said levee, under city and the public) that the grantee shall and in pursuance of and in accordance with construct and maintain a levee along the the terms and conditions of said ordinance, western line of the official bed of the river the city of Los Angeles, by its duly-consti- from Mission street to a designated point tuted officers and authorities, on the 26th south of First street, for which work, when day of March, 1888, duly accepted said work completed, the railway company is to reand said levee; that, by reason of the prem- ceive '$12,000 in money, in addition to the ises aforesaid, the said city of Los Angeles said grant of land and rights of way. The is, and at all the times mentioned in the deed of grant, which is also set out in full, complaint was, the owner and in possession seems to follow strictly the terms of the orof the said levee, and the whole thereof, and dinance. It is dated April 13, 1888, the leyee this defendant maintains the same by reason having been formally accepted by the city of the provisions of said ordinance, and as a March 26, 1888. In connection with these alpart of its consideration for the lands and legations, in regard to the building of the premises conveyed to it by the city of Los levee for and under contract with the city, Angeles, and this defendant has not now, and as a part of the same defense, the deand had not at any time since the date of fendant repeats its denials that it recklessly said acceptance by the city, any right, title, or negligently built or constructed said levee interest, claim in, or authority over said in disregard of the current of said river, or levee, or any portion thereof, saving and ex- the quantity of water usually flowing there. cepting to keep the same in repair as re- in during the rainy seasons, or that it mainquired by the said ordinance, and the same tains said levee in such manner as to obis the property of the city of Los Angeles, struct the natural channel of said river, or and subject to its authority and control. In the natural flow of the water thereof, or connection with these allegations, the ordi- that it or its predecessors have narrowed the nance referred to is set out in full, and also channel in such way or manner as to cause a grant of lands and rights of way from the the water flowing down said channel to dicity to defendant's predecessor, made in pur- verge from its natural course or its usual suance of the ordinance. The following is flow over and upon plaintiff's lands, or that the title of the ordinance, which was duly by reason of any acts or doings of the deadopted December 8, 1886: “An ordinance to fendant said water was diverted or made provide for the construction of a levee upon to flow over the lands of plaintiff, etc. the westerly side of the Los Angeles river With the exception of these denials, all that for the protection of property of inhabitants portion of the answer setting up the ordiof said city from the high waters of said riv. nance of and contract with the city, and the er; for the sale of city lands and grant of defense that the levee was constructed there. right of way to the Riverside, Santa Ana & under for the city and not for the defendant, Los Angeles Railway Company for the con- was, on motion of the plaintiff, stricken out. struction of such levee." And in the body Subsequent to the making of this order the defendant amended its answer, as so modi. exclusively, and in no wise attached to the fied, by alleging, among other things, that defendant or its predecessors. "said levee was constructed along the west- In considering the various questions inern side of said Los Angeles river, as a ne- volved in these two propositions, it is to be cessity, upon its own land, for the purpose borne in mind that the city of Los Angeles of protecting the roadbed and roadway of is not only a municipal corporation, and, as the said California Central Railway Compa- | such, invested for local purposes with a ny, pro ssor of this defendant, and that large share of the police power of the state the same was done in a workmanlike and

as well as the privilege of invoking the powskillful manner, with proper care, prudence, er of eminent domain; it was also shown and foresight, for the purpose of prevent by the allegations of the plea which was ing its tracks and roadbed from being flood- stricken out to have been, at the date of the ed, injured, and washed away during times passage of the ordinance providing for the of food and high water from the river, and erection of this levee, the owner and produring the time of year commonly known as prietor of the land upon which the line of the ‘rainy season' of California, and for the the levee was located, as well as other lands protection of its property, and for the safety within the city which it was one of the oband interest of patrons and passengers be- jects of the levee to reclaim or protect. The ing transported over its said line." It was rights of the city in these diverse characupon the answer so amended (including oth- ters must not be confounded, and we will er matters of defense not material to the first consider its rights as owner of said present discussion) that the defendant was lands. compelled to go to trial, and the assignment It cannot be doubted that as such owner of error mainly relied upon in support of the or proprietor the city had the right to proappeal is the order of the court striking from tect its own lands from overflow by erecting the original answer the special defense above a levee along or outside of the natural banks set forth.

of the stream, without incurring any liaThe correctness of this order is to be test- bility for the effects of a consequent increase ed by reference to the state of the pleadings of the flow of flood waters upon the lands of at the time it was made. It cannot be sup- neighboring proprietors. Lamb v. Reclamaported upon the ground that subsequently tion Dist. No. 108, 73 Cal, 125, 14 Pac. 625; the defendant amended its answer by set- McDaniels v. Cummings, 83 Cal. 515, 23 Pac. ting up the somewhat inconsistent defense 795. It may be, also, that in the case of a that it built the levee on its own lands for stream such as the Los Angeles river was the protection of its roadbed, tracks, and shown to be by the testimony, viz. a river other property. If both these defenses had with a sandy bed, half a mile in width, been pleaded together in the original answer, through which, except in times of flood, the the mere fact of their partial inconsistency water runs in a small and insignificant would not have justified the striking out of stream, now in one channel and again in aneither of them. McDonald v. Railway Co., other, a proprietor of the bed of the stream 101 Cal. 213, 35 Pac. 643, 646, and cases cit- may have an equal right to reclaim a reaed. Still less can the order be upheld upon sonable portion of such bed by means of a the ground that the evidence at the trial did levee constructed within the banks; but cernot support or was inconsistent with the de- tainly he could have no right for such purfense stricken out. A defense which a party pose so to obstruct the channel or divert the is not allowed to plead is not likely to find current as to force the water into a new and support in the evidence offered or admitted permanent channel through the lands of othat the trial. The question, therefore, is er proprietors outside of the natural banks. whether the facts as pleaded would consti- Did the allegations stricken from the answer tute a defense to the cause of action stated show a lawful structure, within this docin the complaint.

trine? They were, as above shown, to the The appellant contends that such facts effect that the levee was erected on the west would, for more than one reason, constitute line of the “official bed" of the river, i. e. a good and sufficient defense. In the first upon a line which had been declared by a place it is claimed that the city of Los An- city ordinance to be the western bank of the geles, for the protection of its inhabitants river. This, so far as the court could see, and their property (the declared object of might have been the natural bank or a line the ordinance pleaded in the answer), had very widely divergent therefrom (which in the undoubted right to build the levee in point of fact it is), and the court was therequestion, without incurring any liability for fore justified in assuming, as against the such Indirect and consequential damages as pleader, that it was not the natural bank. the plaintiff alleges in her complaint; and, Upon this assumption, and in the absence of consequently, that the defendant, a mere con- any allegations as to the character of the tractor for the work, cannot be liable. In river and its bed, or other facts justifying the second place it is claimed that, even if the construction of a reclamation levee withthe city became liable to compensate the in the natural banks, it cannot be said that plaintiff for the resulting damage to her this part of the answer stated a complete lands, such liability rested upon the city defense based upon the right of the city, as a proprietor, to protect its lands from over- Conceding that the negligence complained of flow, unless its affirmative allegations were consisted solely in the faulty plan and locaaided by the denials, with which they were tion of the work, and not at all in the mancoupled, of the allegations of the complaint ner in which it was executed by the defendto the effect that the levee was built in disre- ant, it seems to be settled by the decisions gard of the natural channel of the stream, of this court that if the damage was actionetc. We cannot, however, see why, in con- able the city and the defendant would be struing this part of the answer, such denials jointly and severally liable. To place an should be disregarded. The special defense unlawful obstruction in the bed of a stream, should be taken in its entirety, and, so con- by which the current is directed into a new strued, it states in effect that the levee was channel across another's land, makes a case built by defendant for the owner of the lands clearly within the principle recently applied upon which it was located to reclaim and in Green v. Berge (No. 15,545; Cal.) 38 Pac. protect them, and in such manner as not to 539, and in the cases therein cited. If the interfere with the channel of the river or to work was such as to make the city liable, divert its waters therefrom, except in so far it made the defendant liable also, and the as it might in times of flood cause them to plaintiff could maintain her action against overflow neighboring lands not similarly pro- either or both. Of course, if the city exertected. This was, if true, a justification of cised such care and skill in creating the the city, and necessarily of the defendant in plan and fixing the location of the work as doing the work for the city. And since, for to exempt it from any liability to the plainthe purposes of the motion to strike out, the tiff, and the damage was wholly caused by superior court was bound to assume that such location and plan,-no negligence being everything alleged in the answer could be attributed to the defendant in the construcproved, it was error to grant the motion. tion of the work, nor any departure from

It is true, as above stated, that the evi- the plan,-the defendant would be no more dence adduced at the trial not only failed to liable than the city. But if the work was sustain this defense, but was in direct con- innerently, and according to its plan and loflict with it. It showed clearly that the levee cation, a dangerous obstruction to the river, was constructed by the defendant-apparent

such as ordinary prudence should have ly for purposes of its own-more than a mile guarded against, not only the author of the beyond its southern extremity as designated plan to obstruct the stream, but the person in the ordinance, and it showed that this ad placing the obstruction, were severally liable ditional and unauthorized portion of the levee for the entire damage. was the only part that encroached upon the The questions which have so far been connatural bed of the stream. The maps, dia

sidered solely with reference to the rights grams, and other evidence introduced by the of the city of Los Angeles, as the owner of defendant, no less than the evidence intro- lands subject to overflow and capable of duced by the plaintiff, all agree upon this reclamation, assume a somewhat different point, and all tend strongly to show that but aspect when considered with reference to for this unauthorized addition to the levee the powers and duties of the municipal coras planned by the city the damage to plain-poration as a. public agent for the exercise of tiff's lands would not have occurred. But the police power of the state. By section 1 we cannot, for this reason, hold that the or- of article 4 of the charter of Los Angeles, der striking out was harmless error. But

which was in force at the date of the pasfor the order the defendant might have in- sage of the ordinance pleaded in the defendtroduced evidence as to these matters that ant's answer (St. 1875–76, p. 697), very exwould have changed the aspect of the case,

tensive police powers were conferred upon and we cannot assume that, as the evidence the corporate authorities for the protection is, the jury would have viewed it in the light of persons and property within the city; and in which it appears to us, if the case had by section 11, art. 11, of the present constibeen submitted to them upon the theory that

tution, which was also ther. in force, every the defense pleaded was a good defense. municipal corporation may make and enOur conclusion on this point involves a re

force within its limits all such local, police, versal of the judgment, but, since the result sanitary, and other regulations as are not in will be a new trial of the cause, it is neces- conflict with general laws. In other words, sary that we should indicate our views with the corporate authorities were not only by reference to several other assignments of er- act of the legislature, but by the direct manror, involving questions likely to arise in the date of the people as expressed in the orfuture progress of the litigation.

ganic law, authorized to exercise the police We cannot sustain the proposition of the power of the state for local purposes. There appellant that in view of the allegations of was also in existence an act of the legislaits original answer-and admitting, for the ture, passed in 1868 (St. 1867-68, p. 167), sake of the argument, that it disclosed no by which the common council of the city absolute right on the part of the city to were empowered to levy a special tax for the build the levee--the only person owing any purpose of creating a Los Angeles river fund, duty to the plaintiff to exercise care and skill which was to be expended in such manner to avoid damaging her property was the city. as the mayor and common council should

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direct, “in improving the channel and banks liable. On the contrary, since in the case of said river in any manner deemed neces- supposed the state or corporation would be sary by said mayor and common council for liable, not for a tort, but only upon its oblithe protection of property on the banks of gation to compensate the damages resulting said river.” Under these statutory and con- from the rightful exercise of its power, the stitutional provisions it became the duty, liability would rest upon it alone, and the as it was clearly within the power, of the contractor, who has merely constructed the corporate authorities to improve the channel work carefully and properly according to the and banks of the river as they might, in the plan, will be exempt from any liability. exercise of a sound discretion, deem most There was no taking of plaintiff's property advantageous to the city and its inhabitants. in this case, either according to the facts The work which they were called upon to alleged or facts found, even if tested by the perform was, like the work performed by the doctrine of Pumpelly v. Green Bay Co., 13 levee commissioners under the act of the Wall. 166, which has been held to be an exlegislature referred to in Green v. Swift, 47 treme case. Green v. State, 73 Cal. 29, 11 Cal. 539, distinctly of a public character, Pac, 602, and 14 Pac. 610; Lamb v. Rec. and within the police powers of the state, lamation Dist. No. 108, 73 Cal. 125, 14 Pac. its design being to protect a populous and 6:25. Neither was the damage to it the natuimportant district of the state. The means ral, certain, and immediate consequence of of accomplishing this object, as in the case the facts alleged. It did not appear, therefore, referred to, was confided, and in more am- that the ordinance of the city was invalid ple measure, to the discretion of the body by reason of its failure to provide for comcharged with the execution of the work; and pensation to plaintiff in advance of the con. if, in creating a plan and locating the lines struction of the levee. of the levee, they exercised their judgment What has been said with reference to the honestly, and not maliciously, oppressively, error of the court in the order to strike out or arbitrarily, to the injury of the rights of applies to the error assigned upon the ruling other persons, they—the corporation and its limiting the purpose for which the ordinance authorities--could not be held liable for mere was admitted in evidence. Even under the errors of judgment, and the persons execut- pleadings as they stood at the time of the ing the work with due care, and according trial, the ordinance was admissible for the to such plan, would be equally exempt from purpose of showing that defendant's track liability for any direct or consequential dam- had been rightfully laid within the city, age to third parties. Green v. Swift, supra. and, consequently, that it could protect them It was error, therefore, in this aspect of the by a lawful and proper levee, the question case also, to strike from the defendant's an- whether this levee had been constructed with swer the matters of defense above mention- due care being a question for the jury. ed; for, although they may have been de- There were some rulings of the court upon fectively pleaded in some particulars, the objections to evidence, and in giving and reproper method of reaching such defects was fusing instructions, which, although proper by demurrer, and not by motion to strike enough under the pleadings as they stood, out. A party who defectively pleads a good would not have been proper if the defense defense should be allowed an opportunity of pleaded in the original answer had not been amending his pleading.

stricken out. We need not specify these It is suggested that, in view of the pro- rulings more particularly, since they are vision of our present constitution (article 1, sufficiently indicated by what has been said. § 14), that "private property shall not be The court did not err in giving instruction taken or damaged for public use without No. 4, requested by the plaintiff. Read in just compensation having been first made connection with other instructions, it could to, or paid into court for, the owner,” the not have been understood to require the dedoctrine of Green v. Swift is no longer ap- fendant to exhaust all possible sources of plicable to cases of this character. It is pos- inquiry as to previous extraordinary floods. sible that this may be true, but it can make Instruction No. 10 was not sufficiently guardno difference in the present case whether it ed, even according to the theory upon which is true or not. Conceding, for the sake of the case was tried. Instruction 13 was, perthe argument, that the effect of the consti- haps, erroneous in assuming as a fact the tutional provision is to make the state, or occurrence of extraordinary soods in the a public agency by it employed in the con- past, though, in view of the unanimity of struction of a work designed to protect the the witnesses on that point, it can scarcely lives and property of a large community, have been prejudicial. There was no error liable for indirect and consequential dam- in the modification made by the court in deages, such as were alleged and proved in this fendant's instruction 14. Instruction No. 2, case, and which could not have been esti- asked by plaintiff, seems to have been upon mated or compensated in advance, although a point not in issue, and should have been some damage might naturally have been ap- omitted for that reason. Aside from these prehended, it does not follow that the con- particulars we see no error or inconsistency tractor, executing the work carefully and in the instructions. For the reasons above properly according to the plan, would be given the judgment and order appealed from

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are reversed, and the cause remanded for had been in the temporary custody of the further proceedings in accordance with the trust company was a matter of no concern views herein expressed.

to the defendants, and constituted no de

fense to the action. The note was merged We concur: MCFARLAND, J.; HARRI- in the judgment, and a satisfaction of the SON, J.; GAROUTTE, J.; VAN FLEET, J.

judgment will extinguish the obligation of the defendants thereon. The judgment and

order are affirmed. (4 Cal. Unrep. 979) CORNWALL v. McELRATH et al. (No. 15,778.)

(106 Cal. 302) (Supreme Court of California. March 8, 1895.)

PEOPLE V. LEONARD. (No. 21,145.) 1 ACTION BY ADMINISTRATOR — Note DEPOSITED IN TRUST COMPANY.

(Supreme Court of California. March 9, 1895.) It is no defense to an action by an ad

EXBEZZLEMENT FROM CORPORATION EvideNCB ministrator upon a note due his decedent that

OF INCORPORATION - INDICTMENT EVIDENCEpending the settlement of the estate the note was

BOOKS OF ACCOUNT-GRAND JURY-VALIDITY OF deposited with a trust company by order of

DRAWING. court, and was produced therefrom only for the 1. Articles of incorporation of a bank expurpose of the action.

ecuted in 1875 need not state the number of

shares subscribed, or the names of the subscribDepartment 1. Appeal from superior court,

ers; the amendment of Civ. Code, $ 290, so reAlameda county; F. B. Ogden, Judge. quiring, not being passed until 1876. Action by one Cornwall, administrator,

2. On the trial of the manager of a bank against one McElrath and others. From a

for embezzling its funds, a cash book showing

the receipts and disbursements, and kept in the judgment for plaintiff, and an order denying bank under the supervision of the defendant, is a new trial, defendants appeal. Affirmed. admissible to show the balance of cash on hand

at the time of the alleged embezzlement. J. E. McElrath, for appellants. Jas. C. 3. An averment in an indictment for emMartin and Geo. M. Shaw, for respondent. bezzlement that the funds were those of a cor

poration is supported by proof that it was a corPER CURIAM. Action by the personal

poration de facto.

4. On a trial of a Bank manager for embezrepresentative of Jerusha Cornwall, deceas- zlement, a charge that if defendant, when ined, upon a promissory note executed to her solvent and aware of such insolvency, "took large by the defendants. The defendants do not

sums of money from the vaults of the bank,

and executed therefor his unsecured promissory deny the execution of the note, or the note to the bank, such taking "was a fraudulent amount claimed to be unpaid thereon, In appropriation, and falls within the definition of their answer they deny that the plaintiff has

embezzlement," supplemented by another charge

that it must also be found that he took such or is entitled to the possession of the note,

money "contrary to his trust," is not prejudicial either as administrator with the will an- to the defendant. nexed or otherwise. At the trial the note

5. When the records of a corporation are exwas offered in evidence on behalf of the

cluded from evidence on the ground that the cor

poration was not legally organized, oral evidence plaintiff, and the defendants, in support of is admissible to show who are the acting officers. the above denial, rely upon the fact that it 6. Section 242, Code Civ. Proc., which pro was shown by the plaintiff that under an or

vides that the 19 persons whose names are drawn

shall constitute the grand jury, does not deprive der of the court, made in accordance with the court of the power to discharge persons reg. the provisions of section 3 of the act of ularly drawn who do not possess the statutory April 6, 1891 (St. 1891, p. 490), the plaintiff

qualifications.

7. Under Code Civ. Proc. $ 210, providing had deposited the note with the California

that the persons whose names are returned shali Safe-Deposit & Trust Company, a corpora- serve for one year, and until other persons are tion, and that it was produced from that selected and returned, a grand jury organized custody under the order of court for the

in November, 1893, and not discharged by the

court nor by the subsequent selection and return purposes of this action. This evidence was

of another grand jury, may find a valid indictsufficient to justify the findings of the court. ment in January, 1894. The note was a part of the estate of the

8. A de facto oflicer of a corporation is crim

inally liable for embezzlement of funds in hiæ deceased, and the plaintiff, as the adminis

hands. trator with the will annexed of said estate,

Commissioners' decision. In bank. Appeal was authorized to bring the action for its collection. The action of the superior court

from superior court, Santa Clara county:

John Reynolds, Judge. appointing the plaintiff as such administra

H. M. Leonard was convicted of embezzle tor, or fixing the amount of his bond, or issuing letters of administration, or giving him

ment, and appeals. Affirmed. directions regarding the temporary custody Morehouse, Tuttle & Richards, for appelof the estate, cannot be collaterally attack. lant. Atty. Gen. Hart, for the People. ed in any action by him upon a omissory note belonging to the estate. The note was SEARLS, C. The appellant, H. M. Leonheld by the trust company subject to the or- ard, was convicted of the crime of embezzleder and direction of the court, and it was ment, and adjudged to suffer imprisonment produced at the trial under the order of the in the state prison for the term of three years. court. Its production authorized it to be He appeals from the judgment, from an or admitted in evidence, and the fact that it | der denying his motions for a new trial, and

1 Rebearing denied.

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