VOL. VI. JANUARY 29, 1881. Supreme Court of California. DEPARTMENT No. 1. [Filed December 27, 1880.] FREDERICK BROWNELL, RESPONDENT, VS. No. 23. M. C. FISHER AND A. DANGERS, APPELLANTS. ACTION FOR DAMAGES AGAINST AGENTS OF SWAMP LAND DISTRICT. Where in an action for damages for injury to land by agents of a swamp land district, it appeared that the injury was done by such agents and that the district had no power to authorize it: Held, that such action was properly brought against such agents personally. ADMISSION IN ANSWER AS JUSTIFICATION OF DENIAL OF NON-SUIT. In an ac tion trespass quare clausum fregit and for cutting down trees against agents of a swamp land disttict, where the answer admitted that they entered and cut down the trees: Held, that the admission of the answer was sufficient to justify a denial of a motion for a non-suit. A MERE LICENSE TO ENTER LAND AND CUT DOWN TREES MAY BE WITHDRAWN AT ANY TIME BEFORE ENTRY. A voluntary consent, without consideration, by the owner of land that the agents of a swamp land district may enter and cut down trees for levee purposes may be withdrawn at any time before actual entry. Appeal from the District Court of the Fifth Judicial District, San Joaquin County. Terry & McKune and W. L. Dudley, for appellants. The action is trespass quare clausum fregit-the defense is that plaintiff consented to the entry and damage done, and that defendants were authorized to do what they did as agents of Swamp Land District No. 110. The evidence sufficiently shows that the injury complained of was in fact done, and we cannot say that the amount of damages found by the jury was excessive. The verdict of the jury included a finding that the plaintiff did not consent to the entry and damages. The circumstances recited by appellants' counsel from the transcript are not of such convincing weight as to overcome this finding. The point chiefly relied upon by appellants is, that if the action could be maintained against any person, the swamp land district, a corporation duly organized, and not defendants, are liable for damages arising out of the construction of the levee. The answer of the defendants, however, admits that they entered upon the plaintiff's land and cut down his trees. If they had no authority, as agents of the corporation, to do this, they were personally responsible. If the corporation had no power to direct it to be done (and it is not pretended that it had except with the consent of plaintiff), the trustees could not relieve the actual wrong-doers by passing a resolution purporting to authorize it, although they might make themselves personally liable by thus aiding and abetting the trespass. The admission of the answer above referred to justified the denial of non-suit asked on behalf of defendant, Dangers. The instructions given to the jury of the judge's own motion, and at request of plaintiff, were correct. There was no evidence tending to prove any other than a voluntary consent, without consideration, on the part of plaintiff. The Court properly told the jury that a consent merely voluntary might be withdrawn by plaintiff at any time before the actual entry of defendants. The refusal of the Court to give the following instructions is alleged to be error: "1. The jury are instructed that a swamp land district, organized under the laws of the State, is a corporation, and that if they believe from the evidence that the acts complained of were done by defendants, as trustees of said district, in their official capacity, and in the exercise of their official functions, the corporation is responsible for the damages occasioned by such acts, and the defendants are not responsible as individuals. 2. If the damages complained of are the result of the act of the swamp land district, through its trustees, then the corporation is responsible for such damages, and plaintiff cannot recover in this action." As we have seen, the answer admits the commission of the acts complained of by defendants. Without the consent of plaintiff, their acts were a trespass, whether committed by defendants with or without the direction of the trustees of the corporation. Neither the corporation nor its trustees, nor any of its employees, had a legal right to commit a trespass. Judgment and order affirmed. We concur: McKee, J., Ross, J. DEPARTMENT No. 1. [Filed December 27, 1880.] WILLIAM BURNETT, RESPONDENT, VS. M. C. FISHER AND A. DANGERS, APPELLANTS. EVIDENCE-RELEVANCY-QUESTION WHERE ANSWER MIGHT SUSTAIN Defense. Where in an action by the owner of land against the agents of a swamp land district for cutting down trees, in which one of the defenses was that plaintiff consented to the cutting, a question by defendants to their engineer, whether plaintiff did not apply to him for the job of overseeing the men at work cutting the trees on his land, was ruled out as irrelevant: Held, error, as an answer in the affirmative would have tended to sustain the defense. Appeal from the District Court of the Fifth Judicial District, San Joaquin County. Terry & McKune and W. L. Dulley, for appellants. Byers & Elliott and F. F. Baldwin, for respondent. MCKINSTRY, J., delivered the opinion of the Court: This case is like Brownell vs. Fisher (No. 6296), with the additional circumstance, that, at the trial, one C. D. Rhodes, a witness, was asked by counsel for defendants: "Did the plaintiff in this action make application to you to oversee the hands that were at work on his land to cut down the trees?" The plaintiff's objections to this testimony, on the grounds of irrelevancy and immateriality, were sustained, and the exception duly noted. There was evidence tending to prove that Rhodes-the civil engineer who had charge of the building of the levee, to make way for which the plaintiff's trees were cut down-had the immediate superintendence of the cutting down of the trees, under the direction of defendants, who were trustees of the Reclamation District. The agency of Rhodeshis authority on behalf of defendants to employ men to do the cutting-might have been inferred by the jury, and, the agency admitted, evidence of an application to Rhodes by plaintiff to oversee the men, would certainly tend to prove the latter's consent that the trees should be cut down. Judgment and order reversed, and cause remanded for a new trial. We concur: Ross, J., McKee, J. DEPARTMENT No. 1. [Filed December 28, 1880.] . SANTA CRUZ RAILROAD COMPANY, RESPONDENT, VS. THE BOARD OF SUPERVISORS OF SANTA CRUZ COUNTY, APPELLANT. RAILROAD SUBSIDY Act of 1870-RAILROAD Must be Constructed as Voted FOR OR COUNTY NOT LIABLE. Where under the Act of April 4, 1870, empowering the Boards of Supervisors to aid in the construction of railroads in their respective counties (Stats. 1869-70, 746), the people of a county voted in favor of paying a certain amount in aid of a railroad on a certain specified route running through the county; and the Board of Supervisors contracted with a railroad company to construct a railroad on only a portion of the route, and only that portion was constructed: Held, that the Supervisors had no authority to enter into the contract, and that the county could not be compelled to pay. Appeal from the District Court of the Twentieth Judicial District, Santa Cruz County. J. H. Skirm and J. H. Logan, for appellant. MCKEE, J., delivered the following opinion: By an Act of the Legislature of the State, passed April 4, 1870, the people of any county of the State, who proposed to aid in the construction of a railroad in their county, were authorized to vote upon the proposed aid, at an election to be held on a day and at the places in the county to be named in a notice of election for that purpose. The statute required that there should be stated in the notice the amount of bonds proposed to be issued, and a definite description of the route upon which the railroad was to be constructed; and that the notice itself should be published once a week for at least thirty days before the election. If the election resulted in favor of granting the proposed aid, the Board of Supervisors of the county were then authorized to enter into a contract with parties for the construction of a railroad upon the proposed route, and to issue bonds pursuant to the contract, bearing interest at seven per cent. per annum, payable within twenty years from the date of their issuance, and to provide by taxation for the payment of the interest and principal of said bonds as they became due. By virtue of this authority, the Board of Supervisors of Santa Cruz County, submitted to the electors of the county, at an election called for the fifth day of November, 1872, the question whether they would consent to aid, to the extent of $240,000, in the construction of a railroad in the county, of "not less than a three foot gauge, and beginning at or near the Pajaro depot, on the Southern Pacific Railroad, in the County of Monterey, and running thence, in the most practicably direct route, through the County of Santa Cruz, crossing the Pajaro River near Watsonville, and crossing the San Lorenzo River between the county road leading to Soquel and the Bay of Monterey, and thence along or near the coast to the boundary of said county, near the southeast corner of the Point New Year's ranch.' A majority of the electors voting at the election cast their votes in favor of the proposed aid for the construction of such a railroad; and, on the fourth day of August, 1873, the Board of Supervisors of the county entered into the alleged contract with the Santa Cruz Railroad Company to carry out the wishes of the people of the county as expressed at the election. In entering into the contract the Board acted as the agent of the county. By its general powers it had no contractual capacity to build, or aid in building, railroads in the county. Whatever power it had in that respect it derived solely from the statute of 1870. That statute was repealed in January, 1874. While it was an existing law it was, to say the least of it, of doubtful constitutionality, for a railroad company is nothing more than a private corporation, and it would seem to be self-evident that the Legislature had no power to authorize any county in the State to raise money by taxation for the purpose of a private corporation. Assuming, however, that it was a constitutional enactment, its repeal did not divest the plaintiff of any vested rights which may have been acquired under it while it existed as a law, nor impair the obligation of any contract which may have been entered into under its authority. If, therefore, the Board of Supervisors, in the exercise of the power conferred by it, contracted with the plaintiff to carry out the intention of the county, courts are bound to maintain and enforce the contract. But it must have been made by a proper exercise of the authority, for the purpose of effectuating the object which was intended by the people and authorized by the statute. The authority of the statute of 1870 is obvious. In the language of the statute there is no ambiguity; it is plain and unequivocal; it clearly expresses the will of the Legislature. Addition or qualification to it by judicial construction is im |