Pacific Coast Law Journal.

VOL. 2.

OCTOBER 12, 1878.

No. 7.

Current Topics.

Ir we were to judge from the number of proposals presented changing the Constitution of this State in regard to the judiciary, we would conclude that the whole system will be materially altered.

Each member presenting proposals demands some change different from the rest. We have already seen many plans proposed which have not as yet been introduced, and when all are in, we may then look with interest to the report of the committee to whom these proposals are referred.

THE case of Hillard vs. Pacheco, and that of Ferry vs. Hammond, appearing in this issue, are fair examples of one of the great uses of our work. It will be seen that by reading the opinions of the court, without reference to our compilation of the necessary facts, no accurate idea could possibly be formed as to the principles involved in the cases. In the one it will readily be seen, when reading the facts with the opinion, that there is an application of the rule in Shelley's case; and the statement of the language of the will shows clearly a case when the application may be made. In the other (Ferry vs. Hammond) it will be at once admitted that without a statement of the nature of the fifth and sixth subdivisions of the answer, and that of the exhibit referred to, it would not be possible to know the full meaning of the opinion.

Supreme Court of California.

JULY TERM.

[No. 5,456.]

[Filed October 1, 1878.]

SOUTHERN PACIFIC RAILROAD CO., APPELLANT,

VS.

RAYMOND, RESPONDENT.

EMINENT DOMAIN-PUBLIC USE.-Land to be used in the erection and maintenance of all necessary appendages and adjuncts for the successful operation of a railroad is a public use and may be acquired by proceedings in condemnation. WORKSHOPS OF RAILROAD CORPORATIONS-ARE THEY NECESSARY APPENDAGES AND ADJUNCTS?-In some States the court will take judicial notice that workshops for the repair and safe-keeping of the cars and locomotives of a railroad corporation are necessary appendages and adjuncts. Assuming, for the purpose of this decision, that, as a general proposition, some workshops are necessary appendages, this court holds that it is a question of fact to be ascertained at the trial whether the railroad company is not amply supplied with appendages of this character, and whether or not it may already have sufficient lands conveniently located on which to erect them.

Appeal from the Fourth District Court, County of San Francisco.

The necessary facts are stated in the opinion.

McAllisters & Bergin and S. W. Sanderson, for appellant. H. H. Haight, John T. Doyle, Burch & Griffiths, and E. A. Lawrence, for respondent.

PER CURIAM.

The plaintiff is a railroad corporation, and seeks in this proceeding, to condemn certain lands of the defendants, as a site whereon "to erect and maintain permanent and suitable buildings for workshops, for repairing the cars and locomotives of plaintiff, and for safely keeping its cars and locomotives." The defendants contest the right of the plaintiff to condemn the land, on the ground that the use to which the land is to be applied is not a public use, with

in the purview of the statute, defining the conditions on which a railroad corporation may invoke the exercise of the right of eminent domain.

Subdivision 4 of Section 1238 of the Code of Civil Procedure, as amended in 1874-5, provides, that the right of eminent domain may be exercised in behalf of the following public uses, among others, viz.: "steam and horse railroads;" and in defining the powers of railroad corporations, Section 465 of the Civil Code (subdivision 3), provides that the corporation shall have power" to purchase, or by voluntary grants or donations, to receive, enter, take possession of, hold, and use, all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroad, and for all stations, depots, and other purposes necessary to successfully work and conduct the business of the road." Subdivision 7 of the same section authorizes the corporation "to purchase lands, timber, stone, gravel, or other materials, to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in Title VII, Part III, Code of Civil Procedure, for the condemnation of lands." Subdivision 9 empowers the corporation "to erect and maintain all necessary and convenient buildings, stations, depots, fixtures, and machinery, for the accommodation and use of their passengers, freight, and busi

Subdivision 4 of the same section authorizes the corporation "to lay out its road, not exceeding nine rods wide, and to construct and maintain the same, with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same."

As we construe the complaint, it avers substantially, that suitable buildings for workshops for repairing the cars and locomotives of the plaintiff, and for the safely keeping of the same, are necessary appendages and adjuncts of the road. The allegation on this point is not perhaps as precise and specific as it should have been; but in the absence of a special demurrer directed to this deficiency, we think the

averment in this respect is sufficient, and tenders an issue of fact on this point. So, construing the complaint, the question to be determined is whether land to be used as a site for workshops for repairing and safely keeping the cars and locomotives of the plaintiff is a public use, within the provisions of the statute above quoted.

Subdivision 7 of Section 465 of the Civil Code authorizes the corporation to acquire by proceedings in condemnation, lands to be used, not only in the construction and maintenance of the road, but also for all necessary appendages and adjuncts. Whether or not workshops for the repair and safe-keeping of the cars and locomotives of the plaintiff, are necessary appendages and adjuncts to this road, under all the circumstances to be developed at the trial, and if so, whether the land sought to be condemned is necessary as a site for said buildings, are questions of fact, on which issues may be joined, to be decided at the trial. In some of the States it has been decided that the court will take judicial notice that workshops for the repair of the engines and cars of a railroad corporation are necessary appendages and adjuncts, without which the railroad could not be successfully operated, and for the purposes of this decision we shall assume, without deciding the point, that such is the law. But assuming as a general proposition, that some workshops for this purpose are necessary appendages to a railroad, it may be that this railroad is already amply supplied with all the necessary appendages of this character. It may have a sufficiency of workshops for this purpose, or if not, it may already have sufficient land, conveniently located, on which to erect them. These are the facts to be ascertained at the trial, on proper issues formed for that purpose, and as we construe the complaint, it tenders an issue as to these facts; and we think the complaint is sufficient, and that the demurrer was improperly sustained.

We deem it unnecessary to notice the other objections which were taken to the complaint.

Judgment reversed and cause remanded with an order to

the court below to overrule the demurrer to the complaint. (MCKINSTRY, J., being disqualified, took no part in the decision.)

[No. 6,109.]

[Filed October 1, 1878.]

FERRY, RESPONDENT, VS. HAMMOND, APPELLANT.

PROMISSORY NOTE-CONTEMPORANEOUS AGREEMENT.-Where an answer admits the execution of a note, but sets up in defense the existence of a contemporaneous written agreement respecting the same subject matter which varies the time of payment of the note, and alleges want of consideration of the note in this, that it was given only for the purpose of showing the exact amount due by the terms of the contemporaneous writing, and that no interest should be paid for a certain time Held: that the answer presents a valid defense, and it was error to strike it out.

Appeal from the Fifth District Court, Stanislaus County. This is an action on a promissory note executed by defendants in favor of plaintiff. The defendants admit the execution of the note, but deny that anything was due thereon at the commencement of the suit.

In the fifth and sixth subdivisions of the amended answer they allege that though the note is apparently due, yet in fact it has not matured; that the defendants had entered into an agreement with the plaintiff for the purchase from said plaintiff of a certain business, store, and stock in trade (referred to as exhibit A). That prior to the execution of said agreement (exhibit A), the plaintiff requested the defendants to execute a note payable in six months after date without interest for the balance, as by said agreement would be due, for the sole and only purpose of showing that no interest would be due on said balance of the purchase money for six months, and for the purpose of showing the amount due plaintiff by defendants, as per agreement, and that it was expressly understood and agreed that the payment of the note was to be controlled and governed by the terms of the said agreement; that said note