far as appears by the record, has no connection with any matter involved in the trial; and there is nothing in the question to indicate the place where this alleged threat was made, or whether there were any person or persons present when it was made. There was, therefore, no error in sustaining the objection to the question.

3. After the cause had been argued and submitted, and the jury had retired to consider of their verdict, they returned into court, and, by their foreman, handed to the Court an informal verdict, which was entered upon the minutes of the Court. But the Court, seeing that the jury had mistaken an instruction which had been given to them, as to the form of their verdict, again read to them the instruction, and directed them to retire and reconsider their verdict. They did so, and soon after returned into court with a verdict legal in form, which was read and recorded, and the jury, upon being polled, assented to it, and were discharged.

It is the duty of a Court to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records of the Court; for that purpose the Court can, at any time while the jury are before it, and under its control, see that it is amended in form so as to meet the requirements of the law. The informality in the case in hand was in a mere matter of form, which the Court of its own motion might have ordered to be corrected, instead of directing the jury to retire for that purpose; but in doing this there

was no error.

4. Defendant relied on his motion for a new trial upon no other errors than those which have been presented to this Court on the appeal, and as there was no error in denying the motion for a new trial, the judgment and order must be affirmed. It is so ordered.

MCKINSTRY, J., and Ross, J., concurred.

[No. 6,752.-Department One.]

CITY OF SAN JOSE v. C. FREYSCHLAG.

EMINENT DOMAIN-CONDEMNATION OF LAND FOR A STREET DEDICATION.-In an action for the condemnation of land for a street, the complaint and the answer alleged that the defendant was owner of the land, and the jury, upon special issues submitted to them, assessed the defendant's damages at $300, but also found that the land had been dedicated to the public use by the defendant as a street. Held, that the finding concerning dedication was not within the issues; and that the defendant was entitled to the damages assessed by the jury; and held, further, that had the plaintiff alleged in his complaint the fact of dedication, as found by the jury, it would have alleged itself out of court.

APPEAL from a judgment for the plaintiff, and from an order denying a new trial, in the Twentieth District Court, County of Santa Clara. BELDEN, J.

The facts are stated in the opinion. After the decision in Department, the respondent filed the petition that the appeal be reheard in bank, and the application was denied.

D. M. Delmas, for Appellant.

The question of dedication was not presented by the pleadings, and can never arise in a case like the present. (Code Civ. Proc. §§ 1237-9, 1241, subd. 2; Green v. Chandler, 54 Cal. 626.) The very action to condemn necessarily admits title in the defendant, and leaves the question of damages the only one to be debated. (The Peoria etc. v. Lawrie, 63 Ill. 264, 266; The Pres. etc. v. Givens, 17 id. 255, 257; Metropolitan v. Chicago, 18 Alb. L. J. 517; The Houston etc. v. Beckett, 26 Ind. 53, 58.)

D. W. Herrington, for Respondent.

This proceeding is the proper one to accept the gift, and subject the dedication to proper control. (Stone v. Brooks, 35 Cal. 501; 21 N. Y. 474; 23 id. 64-5; 16 Barb. 251-4.) The finding of dedication by the jury was a probative fact within the issue of value involved in the pleadings. The value found by the jury was in gross; that found and awarded by the Court was this value, less the value of the use found to be dedicated to the public. It was proper to show that the estate taken was of nominal value.

Ross, J:

The City of San José commenced this action in the late Twentieth Judicial District Court, to condemn certain property to public use as a street. The complaint contained all the allegations necessary to warrant a condemnation, and, among other things, alleged "that the lands through which the proposed street will run is claimed by defendants, and is in their possession," and "that the defendants are the only owners or claimants of the premises sought to be condemned as, and for an extension of (said) street." The answer of the defendant Freyschlag, who is the appellant here, avers that he is the owner of the property sought to be condemned, and, in effect, asks that he be allowed as damages, first, the value of the land to be taken, and, secondly, the damage to his remaining land. The jury, in answer to special issues submitted to them, found the value of Freyschlag's land necessary to be taken to be $250, the damage to his remaining land $50, and that the proposed improvement would not benefit his remaining land at

all.

The jury further found as a fact, that Freyschlag had dedicated to the public use, for the purpose of a public street, the tract sought to be condemned by the proceeding. Upon these findings the Court below entered judgment, condemning to the use of the city, for the purposes stated, the required land of appellant, and awarded him one dime therefor; and further decreed, that upon the payment to him of that sum the city should have the right to enter upon and take possession of the land so condemned and paid for, and use the same as and for a public

street.

The judgment is erroneous. The appellant was entitled to the value of the property to be taken, as well as the damage resulting to the land not taken, by reason of its severance from the tract sought to be condemned. (Code Civ. Proc. § 1248.) The aggregate of these sums the jury found to be three hund

red dollars.

The finding concerning dedication cannot be considered. It is not only not within the issues made by the pleadings, but is in conflict with the allegations of the plaintiff's complaint. In

deed, had the plaintiff alleged that the land sought to be condemned had been already dedicated by the owner to the use of the public for a street, it would have alleged itself out of Court; for in such case it would have shown the existence by virtue of the dedication, of the only right that could be acquired under our statute, by the condemnation proceedings, namely, an easement in the property for street purposes. (Code Civ. Proc. § 1239.)

The judgment and order are reversed, and the cause remanded to the Court below, with directions to enter judgment on the verdict in accordance with this opinion.

MCKINSTRY, J., and MCKEE. J., concurred.

[No. 6,596.-Department One.]

THOMAS BARRY ET AL. v. JULIA C. BARRY.

APPEAL-INTERLOCUTORY DECREE-PARTITION. - An interlocutory decree in an action of partition cannot be reviewed on an appeal from the final judg

ment.

APPEAL by defendant from a final judgment in partition, and from an order denying a new trial, in the Twenty-second District Court. TEMPLE, J.

The motion for a new trial was made with reference to the final judgment, and denied by the Court.

George Pearce, for Appellant.

William D. Bliss, for Respondent.

MCKINSTRY, J.:

The appeal is from the final judgment in an action for a partition of real property, and from an order denying a motion for a new trial made after that judgment was entered. The final judgment was entered May 31st, 1878, and, after confirming the report of the referee or commissioners appointed by the interlocutory decree hereinafter mentioned, adjudged the partition accomplished in accordance with such report.

The interlocutory decree-determining the rights and interests of the several parties as tenants in common, adjudging that a partition should be had, and appointing commissioners or referees to make partition-was filed and entered November 7th, 1877. From that decree no appeal has been taken, nor was any motion made for a new trial of the issues upon the determination of which that decree was entered. The interlocutory decree was appealable. (Code Civ. Proc. § 963.) The interlocutory decree became finally determinative of the rights and interests of the several parties, as tenants in common, in sixty days after it was entered. No error is alleged to have been committed intermediate the interlocutory and final decree, nor is it claimed the final decree is erroneous, if the interlocutory decree be assumed to be correct. The interlocutory cannot be reviewed on appeal from the final decree. (Code Civ. Proc. $956.)

Judgment and order affirmed.

MCKEE, J., and Ross, J., concurred.

[No. 6,812.-Department Two.]

E. T. FARMER v. UKIAH WATER CO.

--

OF DEED APPURTENANCE

DEFINITION

NOTICE

PUR

CONSTRUCTION 1 CHASER IN GOOD FAITH.-L. being the owner of a lot of land, and a dwellinghouse and other buildings thereon, purchased of the defendant a waterright, and brought the water upon the premises, and used it for domestic purposes and irrigating the land; and afterward conveyed the premises, with the appurtenances belonging thereto, to B., from whom, through mesne conveyances, the plaintiff deraigned title. After the deed to B., L. conveyed the water right to T., who conveyed to the defendant. Held, that, under the deed to B. the water-right passed, as appurtenant to the land; and held, further, that in view of the fact that B.'s deed was recorded, a finding that the defendant took in good faith, and without notice of the plaintiff's claim, could not be sustained.

APPEAL from a judgment for the defendant, and from an order denying a new trial, in the Twenty-second District Court, County of Mendocino. TEMPLE, J.

Thos. B. Bond, for Appellant.

1. Cited, 82 Ind. 502.