That

el is not merely formal, and about things with any great exactness the proportionate not essential, such as frequently creep into amount of damage done by each. But surefindings inadvertently. The contradiction ly there was no warrant for finding that all is, in our opinion, important, material, and the damage was done by the other water, and fatal to the judgment. For instance, how none (practically) by the water poured onto can the thirteenth finding, (upon which the the plaintiffs' land by the canal. A wrongjudgment rests,) that the results of the acts doer who contributes to a damage cannot esof defendants are "not an obstruction to the cape entirely because his proportional contrifree use of plaintiffs' property," and do "not bution to the result cannot be accurately interfere with the enjoyment thereof," etc., measured. (In a case like the one at bar it be reconciled with the other findings? And would be at least as near justice to hold him how can it stand if the other findings be for all the damage as to hold him for none.) true? In the other findings it is declared And we think the evidence did not warrant that the natural course of the sloughs east of the finding that the damage caused by the plaintiffs' lands is to the south-west; that acts of defendants was to the extent only of none of the waters of said sloughs, diverted one dollar. But the amount of the damage, by the canal, would flow upon said lands if estimated in money, was immaterial. allowed to take their natural courses to the finding was only as to the damage done in river: that the waters diverted by the canal 1878, when there was water on the land from do flow upon said lands; and that the em- other sources. The findings show that the bankments on the south side of the canal do waters diverted by the canal "flow" upon cause waters to flow upon plaintiffs' lands plaintiffs' land, which would not flow there "which would not flow there if the embank- if allowed to take their natural course; and ments were removed." These findings can- that the embankments erected by defendants not be true if it be also true that there was "cause" such artificial flowing. And to thus no interference with the "free use and enjoy- wrongfully cause water to flow upon another's ment" of plaintiffs' property. There can be land, which would not flow there naturally, no more marked interference with a man's is to create a nuisance per se. It is an infree enjoyment of his property than to wrong-jury to the right, and it cannot be continued fully cause water to flow onto his land which would not flow there naturally. And how can we take one of these findings as true, and disregard others which are directly contradictory of it? The rule on this subject may safely be said to go this far, at least: that where there are contradictory findings about matters material to the merits of the case, and the determination of which, one way or the other, is essential to the correctness of the judgment, there the judgment cannot stand. If one part of the contradictory findings would support the judgment. and another part would necessarily upset it, then the judgment must be reversed. Kerns v. McKean, 65 Cal. 411, 4 Pac. Rep. 404; Randall v. Hunter, 66 Cal. 512, 6 Pac. Rep. 331; Gilman v. Curtis. 66 Cal. 116, 4 Pac. Rep. 1094; Sloss v. Allman, 64 Cal. 47; Richards v. Dower, Id. 62; Carman v. Ross, Id. 249: Reese v. Corcoran, 52 Cal. 495.

The finding that the damage done to plaintiffs' land in 1878 by the water which defendants caused to flow there was only one dollar, does not affect the merits of the case. In the first place, we do not see how that finding can be held to be supported by the evidence. It clearly appears in the evidence that at that time plaintiffs were largely and seriously damaged by water flowing onto and over their land, and that a very large part of that water was caused to flow there by the acts of defendants. It is true that, when the damage was done at that time, the water from the canal was mingled with water from other sources, which (it may be admitted) was of a larger volume than that of the water brought there by defendants; and it may have been difficult to separate the mingled elements of mischief, and calculate

because other persons (whether jurors or not) might have a low estimate of the damage which it causes. And especially is this so when the continuance of the wrongful act might ripen into a right in the nature of an easement or servitude. Richards v. Dower, 64 Cal. 64, and cases there cited; Tootle v. Clifton, 22 Ohio St. 247; Casebeer v. Mowry, 55 Pa. St. 419; Wood, Nuis. (2d Ed.) 639. The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by a money standard. The maxim de minimis does not apply. The main object of the action is to declare a nuisance, and to prevent the continuance by a mandatory injunction. There is nothing in the point that, with respect to the removal of the embankment across the canal, the defendants are not maintaining or keeping it up. "It is an injury which keeps itself up." Our opinion, therefore, is that for the reasons above given the judgment should be reversed. Judgment and order appealed from reversed, and cause remanded for a new trial.

to in the opinion of Justice MCFARLAND re- | land was not described in the assessment roll late to matters which are not material to a proper decision of the cause.

(78 Cal. 450)

COOPER v. CHAMBERLAIN, Tax Collector. tiff, and he, at the same time, notified defend

(No. 11,800.)

(Supreme Court of California. March 22, 1889.)

DURESS-LEVY OF VOID TAX.

Where a tax assessment upon land is void, because the property has not been described in the assessment roll, the tax collector's levy and threat to sell to satisfy the tax do not constitute duress.1 Department 2. Appeal from superior court, Monterey county; J. K. ALEXANDER, Judge.

Wm. Matthews, for appellant. R. M. F. Soto, J. A. Wall, and W. H. Webb, (Hermann & Soto, of counsel,) for respondent.

as the law requires, or other description sufficient to identify it, and that the increase of said assessment by the board as aforesaid was made without legal notice to the plainant that suit would be brought against him for said sum of money, unless the same was refunded. No part of said sum has been paid to plaintiff. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, plaintiff declined to amend, and judgment was entered against him. The appeal is from the judgment. The case, as presented by the complaint, is, as we understand it, that the defendant levied upon and advertised property for sale for a delinquent tax which had not been validly assessed, and that, to prevent a sale, plaintiff paid the amount of the tax demanded under protest, and brings this action to recover it back. The question is whether the facts alleged sufficiently show that the sum paid was paid under duress. If not, the demurrer was properly sustained. According to the allegations of the complaint, the plaintiff's property was not assessed. It could not be assessed without being described, and the allegations of the complaint show that it was not described. Not being assessed, all the proceedings of the defendant in the premises were void, and his threat to sell constituted no duress. Wills v. Austin, 53 Cal. 152; Bucknall v. Story, 46 Cal. 589; De Baker v. Carillo, 52 Cal. 473; Brumagim V. Tillinghast, 18 Cal. 265. On the authority of these cases, the demurrer was properly sustained, and the judgment must be affirmed. I concur: THORNTON, J.

SHARPSTEIN, J. This action is to recover $2,742.99, paid by plaintiff to defendant, tax collector of Monterey county, for what plaintiff claims to have been unlawfully demanded for delinquent taxes. The plaintiff alleges that he was the owner of certain tracts of land in said county, all of which are described in the complaint by metes and bounds and proper designation. For the fiscal year 1883-84 the assessor of said county undertook to assess and to list, and in form listed and set down, said land in an assessment book, and valued the same in gross at $141,402.02. Said assessor undertook to levy against and did in form charge said property with a tax of $2,601.98. Afterwards the board of supervisors of said county, sitting as a board of equalization, attempted to increase the valuation of said property, and did in form increase the same by the sum of $20,972.98, making the total valuation thereof $162,393, and added to said pretended taxes the sum of $361, making the total of said alleged tax the said sum of $2,742.99. It is alleged that said tax was illegal, because said property was not described in the assessment roll, as required by law, by township, range, section, or fractional section, of any congressional or MCCORMACK v. NORTH BRITISH INS. Co. other subdivision, or by metes and bounds, or other description sufficient to identify it, and the said order of the board of equalization (Supreme Court of California. March 22, 1889.) was illegal, because the same was made without legal notice to the plaintiff. The defend- In an action on a fire insurance policy containing ant seized said property, advertised in a pub-proofs of loss, and providing that the amount shall the usual condition as to making preliminary lic journal that he would sell so much thereof as would be necessary to pay said tax and 5 per cent. thereon, together with costs and charges, unless plaintiff, before the day fixed for said sale, paid said tax, percentage, charges, and costs. To prevent said sale plaintiff paid said sum of $2,742.99, first filing his protest with defendant, in which he set forth that the whole of said tax was unlawfully assessed and levied, because said

In general, as to what constitutes duress, see Lomerson v. Johnson, (N. J.) 13 Atl. Rep. 8, and note; Avery v. Layton, (Pa.) Id. 528; Shoro v. Shoro, (Vt.) 14 Atl. Rep. 177; Adams v. Schiffer, (Colo.) 17 Pac. Rep. 21.

MCFARLAND, J. I concur in the judgment solely upon the authority of former decisions of this court.

(No. 12, 577.)

INSURANCE-PROOF OF Loss.

(78 Cal. 468)

be paid 60 days after proofs shall have been made and received, and the loss shall have been ascertained and proved according to the provisions of the policy, a nonsuit is proper where there is no evidence that the proofs have been given or waived.

In bank. Appeal from superior court, Yolo county; C. H. GAROUTTE, Judge.

Action by H. McCormack against the North British Insurance Company. Plaintiff appeals.

E. R. Bush and R. Clark, for appellant. Van Ness & Roche, for respondent.

WORKS, J. Action upon a fire insurance policy. Trial by the court. Motion for non

mechanic's lien for plumbing work. The court rendered judgment of nonsuit against him. He appealed to this court, and the case was reversed and remanded for a new trial. 63 Cal. 429. Upon the return of the case to the court below he filed his cost-bill, including as one of the items of costs the sum of $200 for his attorney's fees in the supreme court. The court, on motion of the respond

lowing this item of costs. Subsequently the case proceeded, and there was finding and judgment in favor of the respondent on the merits. This appeal is from the order strik

suit on the ground, among others, that there was a failure to prove a compliance with the conditions of the policy relative to the making of the preliminary proofs of loss subsequent to the fire, and that the action was prematurely commenced, in that it had been commenced before proofs of loss were made. The court below granted the nonsuit, and the plaintiff appeals. The policy contained the usual condition as to the making of pre-ent, made an order striking out and disalliminary proof of loss, and provided that the amount to be paid under the policy should be paid "sixty days after the proofs shall have been made by the assured and received at their office, and the loss shall have been as-ing out the item of costs above mentioned. certained and proved in accordance with the The appellant contends that as he was sucterms and provisions of the policy." Where cessful in this court he was entitled to his such preliminary proof is required by the attorney's fees for services rendered here, policy, the assured must allege and prove and in support of this contention cites Rapp that the proof has been made, or that the re- v. Gold Co., 74 Cal. 532, 16 Pac. Rep. 325. quirement has been waived. Doyle v. In-The case relied upon holds, and, we think, surance Co., 44 Cal. 264; May, Ins. § 465. | correctly, that the attorney's fees are not a There was no evidence that the necessary proof of loss had been given, nor was it shown that such proof had been waived. The nonsuit was therefore properly granted. Judgment affirmed.

part of the costs, but are, under the Code, an incident to the foreclosure of the lien. This being the case, there can be no recovery for attorney's fees unless the plaintiff succeeds in his foreclosure proceeding. The court below having found against him on the merits, PATERSON, J.; THORNTON, the lien, which is the basis upon which the

We concur:
J.; SHARPSTEIN, J.

MCFARLAND, J. I dissent. I think there was evidence that the proof was waived.

BEATTY, C. J., being disqualified, did not participate in the decision.

(78 Cal. 449)

MCINTYRE v. TRAUTNER. (No. 11,469.) (Supreme Court of California. March 22, 1889.) MECHANICS' LIENS-COSTS.

(83 Cal. 344) SMITH et al. v. BISCAILUZ et al. (No. 12,827.)

By Code Civil Proc. Cal. § 1195, on foreclosure of a mechanic's lien the court must allow, as part of the costs, reasonable attorney's fees in the superior and supreme courts, such costs and attorney's fee to be allowed to each lien claimant whose lien is established. Plaintiff, in an action to foreclose (Supreme Court of California. March 21, 1889.) such a lien, was nonsuited, and on appeal the judg ment was reversed. Held, that the attorney's fees are not part of the costs, but are incident to the foreclosure, and plaintiff, having failed on the merits on the second trial, was not entitled to an attorney's fee on the appeal.

Department 1. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

GUARDIAN AND WARD.

1. Under Code Civil Proc. Cal. § 1747, relating to the appointment of a guardian for an infant under 14 years of age, and providing that "such appointment may be made on the petition of a relative or other person on behalf of the minor," and that "before making such appointment the court must cause such notice as such court deems rea sonable to be given to any person having the care of the minor, and to such relatives of the minor, residing in the county, as the court may deem proper," the appearance by petition of the mother all the relatives to whom notice would be requisite, of the minor, in whose care the minor was, and of by their written consent filed in the cause, is proof that they all had notice of what was in progress, and waived any more formal notice.

Action by William McIntyre against Chas. Trautner. Plaintiff appeals. Code Civil Proc. Cal. § 1195, relating to liens of mechanics and others, as it stood when the case was decided by the superior court, provided that "the court may also allow, as part of the costs, the moneys paid for fil- of infants' real estate, provides that a failure to 2. Code Civil Proc. Cal. § 1537, applicable to sales ing and recording the lien, and reasonable set forth in the petition the facts showing the sale atttorney's fee in the superior and supreme to be necessary, as required by section 1781, will courts."

not invalidate the proceeding, if the defect be supplied at the hearing, "and the general facts, show

William H. H. Hart, for appellant. Henrying such necessity, be stated in the decree." A H. Reid, for respondent.

WORKS, J. The appellant brought this action against the respondent to foreclose a

decree of sale recited that "on such hearing the said guardian was examined on oath, and, it appearing to this court that it would be for the ben

efit of said minor that said real estate be sold, and the proceeds of said sale be placed at interest, the

the necessity for sale.

said real estate being now unproductive, and lia- | sale, made on behalf of the ward, Victoria, ble to heavy taxes," etc. Held a sufficient find- an order for which was made by the judge of ing and statement of the "general facts" showing the probate court of Los Angeles county, and 3. A recital in the decree that before making conveyances executed to him by the guardian said sale said guardian duly executed an additional of the minor, on the 14th day of August, bond, as required by Code Civil Proc. § 1788, is, in 1876. The ward, after coming of age, just effect, a recital that the bond was delivered before sale to the judge, without which delivery it could before the institution of this suit, deeded the not have been "duly executed;" and such delivery property to one Biscailuz, who defends this and approval by the judge are a sufficient filing. 4. Where it is apparent that the appraisement action joined with her (1) It is claimed by was substantially filed in court before the con- the respondents that the order of the probate firmation of the sale, the marking it "Filed" by the court appointing the guardian for Victoria clerk was not essential. was void for the want of notice (2) that the petition for the sale of the lands of the minor was insufficient to give the court ordering the sale jurisdiction to do so; (3) that the additional bond required by the statute on the sale of real estate was not filed until after the confirmation of the sale; (4) that the inventory and appraisement of the ward's estate, ordered by the court, was not filed until after the confirmation of the sale of the ward's real estate, and that the description of the land was insuflicient, as contained in the inventory.

5. As to the question whether the appraisement in the form made gave sufficient information to the court to enable it to exercise its prerogative in rendering judgment, the court had, by virtue of the petition exhibited to it, jurisdiction to determine the sufficiency of the evidence, and its judgment cannot be collaterally questioned.

6. A decree of distribution was of all the estate remaining in the hands of the executor, "which estate is hereinafter particularly described, and other property not now known or discovered, which may belong to the said " deceased. Then followed a description, from which one tract owned by the estate in fee was omitted. Held, that the decree passed title to that tract also.

Commissioners' decision. In bank. Appeal from superior court, Los Angeles county; A. W. HUTTON, Judge.

1. That part of section 1747 of the Code of Civil Procedure which prescribes the notice required for the appointment of a guardian F. H. Howard, Bicknell & White, R. Dun-of a minor under 14 years of age, such as the niyan, and Smith & Patton, for appellants. Chapman & Hendricks and W. J. Foley, for respondents.

one here concerned, is as follows: "Such appointment may be made on the petition of a relative or other person on behalf of the minor. * * * Before making such apFOOTE, C. Action to quiet title under sec-pointment, the court must cause such notice tion 381, Code Civil Proc. Judgments passed as such court deems reasonable to be given for the defendants, from which and an order to any person having the care of the minor, refusing a new trial this appeal is taken. and to such relatives of the minor residing The plaintiffs deraigned their title to the in the county as the court may deem proper." lands in dispute from one P. Beaudry for the In the present instance, the mother of the purpose of establishing their own source of minor, under 14 years of age, having the title to certain lots in the city of Los Angeles, care of her, preferred the petition for the apamounting in the aggregate to about 350 pointment of the guardian, Joseph Jordan, acres of land. All parties deraign their title the uncle of the minor, and her only other from one A. Z. Jordan, in whom they stipu- relatives residing in the county, two cousins, late the title to the lands in controversy was Joseph P. Jordan and Anton Jordan, filed in vested on the 26th day of June, 1873. Upon the court their written consent to the apthat day Jordan conveyed an undivided half pointment of the uncle, Joseph, to be the of the lands, except one subdivision, to Cat-guardian; after which, and upon the same alina Batz. Afterwards, on the 28th day of day, the court appointed him guardian in acJuly following, Jordan died, still seised of the cordance with the petition and consent thus remaining interest in the lands. He left as filed. Conceding, without deciding, that his sole heirs his widow, Mary, and two the language, "the court must cause such children, the defendant Victoria Jordan, and notice as such court deems reasonable to be her sister, who died pending the administra- given to any person having the care of the tion of his estate. Under his will, and by minor, and to such relatives of the minor reinheritance from the deceased child, the siding in the county as the court may deem widow became the owner of five-eighths, and proper," required the court to have some the child Victoria of three-eighths, of an un-proper notice given to the person having the divided half of certain lands involved in this care of the minor, and to such of her relacontroversy, which interests were allowed to tives, residing in the county, as the court them by a decree of distribution. It is ad- may deem proper, as a prerequisite to a valid mitted by all that Beaudry acquired the in-appointment of her guardian, nevertheless terest of the widow of Jordan and that of Catalina Batz, and, except as to the interests of the plaintiffs Gay and Miller, there seems to be no contention except as to the title to the land originally vested in Victoria Jordan by the decree of distribution. Beaudry purchased the interests of all the plaintiffs here, except those of Gay and Miller, at a guardian

the appearance by petition of the mother of the minor, under whose care she was, and of the other necessary parties, to whom notice was requisite, by their written consent filed in the cause, was proof that they all had notice of what was in progress before the court, and had waived any more formal notice. To have ordered and given any such, under the

existing state of facts, would have been an statement: "On such hearing, the said guardidle and useless ceremony, which the law ian was examined on oath, and after a full does not impose upon courts of justice. The examination, it appearing to this court that minor being of tender years, and not sup- it would be for the benefit of said minor that posed to be able fully to protect her rights, said real estate be sold, and the proceeds of the law provides notice to be given in some said sale be placed at interest, the said real proper way to certain persons who may ap-estate being now unproductive and liable to pear and do what is just in her interests. It is not required that any notice be given to the minor, and if the persons to whom the notice is intended to give the opportunity to defend the minor's rights appear in court, and, by petition and written consent, ask that tribunal to appoint the guardian whom it does appoint, we cannot perceive how any harm can come to the minor, or how the law, in its substance, is violated. The case of Burroughs v. De Couts, 70 Cal. 373, 11 Pac. Rep. 734, seems to concur in the view of the statute we have thus taken, and to go further and hold that where there is a collateral attack, such as is here made, upon the action of the court appointing a guardian, and the record affords sufficient evidence that all the near relatives of a minor residing in the county are consenting to the appointment, it is sufficient to warrant the presumption of the existence of the jurisdiction of the court and the validity of its acts, so far as the statutory notice to such parties is concerned. Brodribb v. Tibbits, 63 Cal. 80. The order appointing the guardian, in this matter, showing that all the near relatives of the minor residing in the county were the mother, the uncle appointed guardian, and the two cousins of the minor; that the mother filed the petition, and the cousins filed their consent to the request for the appointment of the uncle as guardian,-it would seem, both upon reason and authority, that such appointment was valid.

heavy taxes." According to the statute and the opinion of the appellate court in Fitch v. Miller, supra, the necessity for a sale exists when it is expedient, or, what is the same thing, can be made with propriety. It must be presumed on this collateral attack, from the decree just recited, that the court determined upon sufficient proof that the condition of the estate, and the facts and circumstances surrounding it, are such as render a sale necessary or expedient. When the statute with reference to what the decree must contain in order to validate the sale (notwithstanding the failure of the petition to state the condition of the estate, and the facts and circumstances going to show a sale to be necessary or expedient) provides that a failure to set out those facts and circumstances in the petition shall not invalidate the sale if the decree contains a recital of "general facts" showing such necessity, it means to declare that neither the failure to set out the special facts and circumstances which, taken together, show the necessity or expediency of the sale, nor the failure to state the condition, (which appears of necessity from, and is a part of, the special facts and circumstances showing the necessity or expediency of a sale,) shall invalidate the sale if the decree shall recite the "general facts" above stated. Therefore it becomes pertinent to inquire and determine what is meant by the words "general facts" showing the necessity or expediency of a sale, as used in section 1537, supra. An examination of sections 1777, 1778, 1781, Code Civil Proc., which are the same in language as the sections in the same Code at the time this sale was made, shows that sections 1777, 1778, prescribed certain ultimate facts or contingencies under which the real estate of the minor may be sold by the guardian, and which must appear in some form in the petition therefor to give the court jurisdiction. An inspection of section 1781,

2. Conceding, under the decision of the appellate court in Fitch v. Miller, 20 Cal. 352, that the petition for the sale of the minor's real estate was defective in not "setting forth the condition of the estate of his ward, and the facts and circumstances on which his petition is founded, tending to show the necessity or expediency of a sale," as prescribed by section 1781 of the Code of Civil Procedure, which was in force in all its substantial features at the date of the order of sale in contro-supra, shows that by it certain special facts versy, it becomes a material question whether and circumstances showing the condition of or not the provisions of section 1537, which the estate, and tending to show the necessity was also in force at the date of the order of or expediency of the sale of the whole or a sale, validate the decree made in this in- part of the minor's real estate, must be set stance. Sections 1789 and 1808 of the Code out in the petition. In the last clause of of Civil Procedure make that last section ap-section 1537, supra, it is plain that a differplicable to guardian sales. The clause of ent meaning is given to the word "facts, section 1537, material to the matter under where it is said, "but a failure to set forth consideration, is: "If any of the matters the facts showing the sale to be necessary enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary will not invalidate the proceeding if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree." The deree of sale in the case in hand contains this v.21p.no.1-2

will not invalidate the subsequent proceedings," from that which is given to the words "general facts," where it is said, "if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree." What construction is to be given to the language of that clause, when taken in its entirety, in order that the