think the will of the electors who cast the disputed ballots is fairly apparent, and that they intended to vote against the bond proposition.

From the views herein expressed it follows that the order and judgment of the district court must be reversed.

(All the justices concurring.)

SUPREME COURT OF CALIFORNIA.

DANIELS v. GUALALA MILL Co. (No. 9,931.)

Filed March 9, 1885.

CHANGE OF VENUE-ORDER AFFIRMED.

Order denying application for change of place of trial affirmed, and application for stay of proceedings pending appeal denied in consequence thereof.

Department 2. Appeal from the superior court of the county of Mendocino.

The appeal was from an order of the lower court denying the defendant's motion for a change of place of trial, on the ground of convenience of witnesses. Pending the appeal the defendant moved for a stay of proceedings.

H. A. Powell, for appellant.

J. A. Cooper, for respondent.

BY THE COURT. We perceive no reason for disturbing the order of the court below denying defendant's application for a change of the place of trial. The order is therefore affirmed. It follows from this that the motion for a stay of proceedings in the court below must be denied. The latter motion becomes practically useless in consequence of the affirmance of the order.

(2 Cal. Unrep. 447)

PEOPLE V. PRATHER. (No. 20,013.)

Filed March 10, 1885.

INSTRUCTIONS-EXCEPTIONS TO PART OF CHARGE.

The judgment of a trial court will not be disturbed on the ground of erroneous instructions, because portions of the charge may be objectionable, if the charge itself, as a whole, fairly presents to the jury the law bearing on the evidence before them.

In bank. Appeal from the superior court of the county of Yolo. The defendant was convicted on a charge of assault with intent to commit murder, and on appeal from an order denying him a new trial assigned as error certain portions of the charge of the judge to the jury.

F. C. Baker and J. Lambert, for appellant.

The Attorney General, for respondent.

BY THE COURT. As the evidence is not before us, it is our duty to affirm the judgment and order denying a new trial, unless some one of the instructions was erroneous in any conceivable state of the evidence. Portions of the charge may be subject to criticism, and are not to be commended as models of clear and accurate statements of propositions of law; but other portions explain these, so that the charge, as a whole, fairly presents the law bearing on the evidence

which may be assumed to have been before the jury. The instructions, therefore, are not materially erroneous. Judgment and order affirmed.

(66 Cal. 486)

McCUE v. TUNSTEAD.

(No. 9,849:)

Filed March 11, 1885.

JUDGMENT-FORM OF, IN CLAIM AND DELIVERY.

The judgment, in an action of claim and delivery, if for the plaintiff, must be in the alternative, for the possession of the property, or the value thereof in case a delivery cannot be had, and damages for the detention.

In bank. Appeal from the superior court of the city and county of San Francisco.

The opinion on the former appeal is reported in 3 PAC. REP. 863. Jos. Kirk, for appellant.

Jas. S. McCue, for respondent, in pro. per.

BY THE COURT. This was an action for the recovery of the possession of certain personal property, to-wit, a horse, brought under section 509 of the Code of Civil Procedure, and judgment was entered in favor of the plaintiff "for the sum of one thousand dollars, and for interest thereon at the rate of 7 per cent. per annum, amounting to $445, and for costs." The defendant appealed from the foregoing judgment, and on the argument the plaintiff confessed error. On a former appeal in this case, taken by the plaintiff, against whom judgment was rendered on the first trial, the judgment of the court below was reversed and the cause remanded, "with directions to the court below to enter judgment in favor of the plaintiff." 3 PAC. REP. 863. But the court below, on the going down of the remittitur from this court, failed to enter the proper judgment under section 667 of the Code of Civil Procedure. That section provides for a judgment in the alternative, and such should have been the form of the judg ment in the case. It was said by this court in the case of Campbell v. Jones, 38 Cal. 507, that the judgment should be, if in favor of the plaintiff, for the possession, or the value thereof in case a delivery cannot be had, and damages for the detention." See, also, Cummings v. Stewart, 42 Cal. 230.

Judgement reversed and cause remanded, with directions to the court below to enter a judgment in favor of plaintiff, in conformity with this opinion.

(66 Cal. 492)

REARDON and others v. CITY AND COUNTY OF SAN FRANCISCO. (No.

8,428.)

Filed March 12, 1885.

MUNICIPAL CORPORATIONS-LAWFUL PUBLIC WORK CAUSING DAMAGE, LIABILITY

FOR.

In the absence of special liability imposed by a statute or the organic law of the state, a municipal corporation is not liable for special consequential damages resulting from some lawful public work, as a street improvement; but under a constitutional provision that "private property shall not be taken or damaged for public use without just compensation having been first made or paid into court for the owner, a liability arises for such damage, though the owner of the property damaged, during the progress of such work, made no effort to protect his property.

Department 2. Appeal from the superior court of the city and county of San Francisco.

John Lord Love, City and County Atty., for appellant.

L. Quint, for respondent.

THORNTON, J. This is an appeal by the defendant from the judgment. The judgment roll alone constitutes the record. The complaint states that the plaintiffs, during the times referred to in it, were the lessees of four certain lots of land on the south-west corner of the San Bruno road and Army street, in the city any county aforesaid, upon which they had constructed a store-house and two dwellinghouses, one of which dwelling-houses they had rented, and the other buildings were used and occupied by them; that on or about the first of March, 1880, the defendant, by its legally constituted officers and agents, commenced the construction of a sewer in the center of Army street, from the east side of the San Bruno road, and extending easterly to the waters of the bay of San Francisco, and to grade Army street to the established official grade; that in the construction of this sewer, and in grading this street for a distance east and west of the point where Army street and the sewer cross the San Bruno road, the defendant deposited a large quantity of earth, rocks, and broken stone upon the natural soil through which the sewer was constructed to the depth of about eight feet, and extending the entire width of the street; that the weight of the material so deposited caused the natural soil of the street to settle and sink; that though the soil settled and sunk, the defendant continued to fill in with the same material without taking any precautionary measures to protect plaintiff's property from the injury which the defendant was daily causing to be done, and wrongfully and unlawfully displaced the natural soil of the land on which plaintiffs had constructed the buildings above mentioned; that the displacement destroyed the foundation of the buildings, which had always been firm and solid; that plaintiffs frequently notified the elected and qualified officers of the defendant of the damage it was causing to be done daily to the property of plaintiffs as the work of filling in was progressing; that defendant neglected

these notices, and took no steps to protect the property of plaintiffs as the work was proceeding; that by such acts of defendant the soil on which plaintiffs' buildings rested was raised above its original position about eight feet, and moved south a considerable distance; that plaintiffs had to take steps to protect their buildings, which cost them about $1,000; that the buildings were damaged about the same sum; and that the time and labor expended about this by plaintiffs was worth the sum of $500.

The pleader then proceeds to aver a presentment of a claim and demand to the board of supervisors of the defendant for the injuries. aforesaid, and the rejection of this claim and demand by the board. The above are the substantial averments of the complaint. The verdict in favor of plaintiffs was for $500.

As the case is presented by the record, this court is bound to assume that the verdict has affirmed every averment of the complaint essential to a recovery. The only question, then, to be determined is this: Does the complaint state a cause of action?

It will be observed that the theory on which the cause is rested is that the defendant, in grading a street, and constructing a sewer in the center of it, deposited earth, stone, and broken rock (heavy material) on the whole width of the street, to raise it to the established official grade, by reason of which, and the soft and yielding nature of the soil below, the subjacent earth was squeezed and pressed down and outwards, causing the displacement and destruction of the foundation on which the houses rested and the injuries complained of, and that defendant, though notified, neglected to take measures to prevent this squeezing, pressure, and displacement, from which the injuries counted on resulted. It may be observed here that though the allegation of the complaint is that the defendant wrongfully and unlawfully displaced the natural soil of the land on which the plaintiffs' buildings were constructed, it is not averred that it was done otherwise than by the settling and sinking of the soil of the street on which the weight of the heavy material deposited, pressed. The plaintiffs and defendant concede that the displacement was caused by the pressing and squeezing out of the soil on which the material was placed, and it is averred that the place of deposit of this material was the street in its entire width.

It does not appear that the plaintiffs deny the right of defendant by law to fill up and grade Army street to the official grade, fixed by law, and to construct a sewer therein. This is clear from the fourth subdivision of section 1 of the act of March 16, 1878. This act is entitled "An act to confer additional powers on the board of supervisors of the city and county of San Francisco, to provide for the opening of Army street and the condemnation of private property therefor." See St. 1877-78, p. 270. As this act is not pleaded in justification of the grading and filling done by the city on the street referred to, it may be that it cannot be noticed. That need not be determined, as