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Hence,

seven witnesses who had testified on the subject of value. even if the ruling had been clearly erroneous we cannot say that it was sufficiently prejudicial to warrant a reversal.

The foregoing comprise a small proportion of the exceptions taken to the rulings during the trial, and mentioned in appellants' briefs. Those not here noticed are either covered by what has been said or they are so trivial as to require no mention.

[35] 17. Objection is made to an instruction stating that, as the power of eminent domain is necessary for the public good, "it would be unjust to the public that the plaintiff should be required to pay the owner more than a fair indemnity for the loss he sustains by the appropriation of his property for the general good. On the other hand, the owner being compelled to part with his property, whether he desires to sell or not, the law allows him just compensation therefor". The criticism of this instruction is that it is argumentative. The proposition stated in the instruction is correct and we see no objection to the jury being so informed. It was not improper to instruct the jury that they should allow the owner of the land just compensation and that the public interest demanded that he should receive no more. This was the substance of the instruction.

[36] The next objection is to an instruction regarding opinion evidence. It directed the jury to weigh the testimony of witnesses giving opinions as to value "by reference to the whole situation of the property and its surroundings, and all the surrounding circumstances, and by applying to it your own experience and knowledge. While you cannot act in any case upon particular facts material to its disposition resting in your private knowledge, but should be governed by the evidence adduced, you may and should judge of the weight and force of the evidence upon your own general knowledge of the subject of the inquiry". It is argued that this would lead the jury to fix the value of the land by their own knowledge of the subject irrespective of the evidence in the case. The jury were many times instructed that they must determine the facts in the case in accordance with and upon the evidence. The instruction quoted forbids them from acting on particular facts resting in their own knowledge. It is evident from the other instructions referred to that this instruction as a whole could reasonably be understood to mean nothing more than that it was that knowledge and experience which the jurors had in common with men in general that they were to apply in weighing the evidence. This proposition is conIceded to be correct.

[37] There was no error in instructing the jury that in determining the questions of necessity they should take into consideration the character of the business proposed to be done by plaintiff's railroad and the manner of doing it and the future needs of the communities which the plaintiff would serve and that in so doing they could consider the number of persons to be served by the plaintiff and its road. All these things had a direct bearing upon the probable area required by the plaintiff for its terminal at Sacramento.

The appellants complain of certain instructions which, it is contended, directed the jury that, in determining the question of necessity, they should consider that plaintiff was entitled to take a strip 165 feet wide across the land solely for the purpose of placing its main tracks and necessary side tracks thereon, although they should find that the entire width was not required for such tracks and that for other purposes, the adjuncts and appendages, they could allow the additional land necessary, without requiring plaintiff to use any of the said strip for such other purposes, although they might believe that it could do so without injury to its business. The most that can be said in favor of this objection is that the instructions, considered together, are not entirely clear. One of them expressly declares that the plaintiff is entitled to a 165 foot strip, "if necessary for its right of way". We do not think the instructions need be construed as the appellant claims and as the court itself, after several weeks of consideration, found that the strip was required for the main line and necessary side tracks, the error, even if the instruction had been clear to the effect asserted, would not justify a reversal of the judgment. The latter proposition applies to other instructions, which we do not expressly mention, on the subject of necessity for the taking. But we are not to be understood to say that they are in fact erroneous. Some of them may be ambiguous, but we do not think they were misleading to the jury.

[38] 18. The action was commenced and the summons issued on May 5, 1910. In this connection the court instructed the jury that in determining the compensation to be given the defendant, they must consider the value of the land as it was at the date of the commencement of the action. This was in exact accordance with the provisions of section 1249 of the Code of Civil Procedure as the section stood at the time the action was begun. It then provided that, for the purpose of asserting the compensation, the right should be deemed to accrue at the date of the summons and that the actual value of the property at that date should be taken as the measure of compensation. Afterwards, by an amendment taking effect June 9, 1911, the following clause was added to the section: "provided, that in any action in which the issue is not tried within one year after the date of commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of the trial. Nothing in this section contained shall be construed or held to affect pending litigation". If the last sentence of this proviso is to be given effect, the amendment does not apply to the case at bar, inasmuch as it was pending at the time the amendment was enacted. The argument on this point is that the provision is unconstitutional because if allowed to be effective it would constitute class legislation; that persons whose property was taken by actions begun before the amendment would have the compensation fixed by the value at the time the action was begun, whereas those whose property was taken by actions begun after the amendment, would come under the proviso, if the case was not tried within one year after its commencement. We think this ar

gument is without merit. The fact that cases were pending at the time the amendment was enacted, concerning which rights may have accrued or negotiations may have been in progress, sufficiently distinguishes such cases as a separate class, entitled to different provisions from those prevailing in actions to be begun thereafter. (Gridley v. Fellows, 166 Cal. 769.) Furthermore, there is nothing in the record to show whether or not the delay in the trial was caused by the defendant. Since it was incumbent upon the appellant to show error by the record, the presumption must be that the delay was caused by the defendant, and that the action of the court below was proper under the circumstances then appearing, if we concede that the provision is to be taken as valid. If it is invalid then the entire proviso on that subject must be eliminated and the section would stand as it was before the amendment. In either case, the instruction would be correct.

[39] 19. For the right of way for main tracks and th necessary side tracks and other tracks for chutes, yards and storage purposes, the judgment gives the plaintiff only an easement in the land. For that part of the land to be used for a store house, a blacksmith shop, a machine shop, wharves, offices and other purposes requiring the construction of substantial buildings thereon, a fee simple estate was condemned. We perceive no error in this. Section 1239 of the Code of Civil Procedure provides that a fee may be taken when land is condemned for a public use requiring the erection of "permanent buildings" thereon. The structures necessary for the purposes thus designated would be of as permanent a character as buildings for any ordinary use, and we think they are "permanent buildings" within the meaning of that section.

The purported judgment of March 23, 1912, is declared a nullity but appellants do not recover costs on appeal on account thereof. The judgments of April 18, 1912, and of April 29, 1912, are affirmed.

SHAW, J.

We concur:

HENSHAW, J.

LORIGAN, J.

MELVIN, J.

LENNON, J., pro tem.

ANGELLOTTI, C. J.

Note. Justice Sloss being disqualified, Justice Lennon, the presiding justice of the District Court of Appeal for the First Appellate District, participates herein pro tempore, pursuant to Section 4, Article VI of the Constitution.

Crim. No. 1923. In Bank.

March 5, 1915.

*In the Matter of the Application of JOHN LAPIQUE for a Writ of Habeas Corpus.

[1] CONTEMPT-DENIAL OF APPLICATION FOR HABEAS CORPUS-APPROVAL OF OPINION OF DISTRICT COURT OF APPEAL.-The application for a writ of habeas corpus in this proceeding is denied for the

reasons stated in the opinion of the district court of appeal (20 Cal. App. Dec. 42).

Application for Writ of Habeas Corpus prayed to be directed against the Sheriff of Los Angeles County.

For Petitioner-John Lapique, in propria persona.

For Respondent-No appearance.

BY THE COURT.

[1] The petitioner is in the custody of the sheriff of Los Angeles County under a commitment based upon a judgment finding him guilty of contempt of court, imposing a fine of $500 therefor, and providing that in default of payment of said fine he be imprisoned in the county jail of Los Angeles for a period in the proportion of one day for each $2 of such fine, or until such fine be otherwise satisfied. He has heretofore applied to the district court of appeal of the second district for discharge on habeas corpus, and was by said court remanded to custody. In so remanding him the said district court of appeal filed a written opinion, which is reported in Volume 20, Cal. App. Dec., at page 42. A consideration of the matters set forth in his petition addressed to this court has satisfied us that the opinion of said district court of appeal sufficiently disposes of the claims made by him for discharge.

In view of our decisions referred to in the said opinion of the district court of appeal, no sufficient cause appears entitling petitioner to be discharged from custody.

The application for a writ of habeas corpus is denied.

Sac. No. 2259. In Bank. March 6, 1915.

ALEXANDER W. MORRISON, Plaintiff and Appellant, v. FRANK LAND, Executor of the Last Will of William Land, Deceased, et al., Defendants and Respondents.

[1] WILLS-CONTRACT FOR TESTAMENTARY DISPOSITION-BREACHREMEDIES. One may make a valid contract with another to devise or bequeath property by his last will in a certain specified way, and in the event of a breach of such a contract the party has an action at law for the damage caused by such breach of the promisor, and in some cases this, by reason of the circumstances, may be his only remedy, for a resort to any equitable remedy can be had only where the circumstances are such as to make the case one within the well-settled principles relative to the proper exercise of equitable jurisdiction.

[2] ID.-ID.-ID.-ID.-REMEDY AT LAW-PRESENTATION OF CLAIM ESSENTIAL.-Where the party damaged is restricted to his remedy at law for the breach, he must necessarily proceed upon the theory that he is a "creditor" of the deceased, having a "claim against the estate" "arising upon contract", within the meaning of those sections as used in our probate law, and he is subject to the provisions of our statutes requiring presentation of claims to the executor or administrator and judge.

[3] ID. ORAL CONTRACT TO BEQUEATH MONEY-PERFORMANCE OF SERVICES ACTION AGAINST EXECUTORS - PLEADING COMPLAINTWANT OF ALLEGATION OF PRESENTATION OF CLAIM-FAILURE TO STATE CAUSE OF ACTION.-A complaint in an action against the executors and executrix of a will based upon the breach of an oral agreement of the deceased to bequeath to plaintiff a certain specified sum of money in consideration of services rendered by the plain

tiff to the testator fails to state a cause of action at law, where there is no allegation that any claim for such money was ever presented to such executors and executrix for allowance.

[4] ID. CONTRACTS FOR TESTAMENTARY DISPOSITION-SPECIFIC PERFORMANCE-ENFORCEMENT OF TRUST AGAINST HEIRS-RULE.--Courts of equity will under special circumstances enforce a contract to make a will, or to make a certain testamentary disposition, not by ordering a will to be made, but by regarding the property in the hands of the heirs, devisees, assignees, or representatives of the deceased promisor, as impressed with a trust in favor of the plaintiff, and by compelling defendant, who must of course belong to some one of these classes of persons, to make such a disposition of the property as will carry out the intent of the agreement.

[5] ID.-EQUITY-SUFFICIENCY OF LEGAL REMEDY-RULE.-Where the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords a remedy, as damages by way of compensation for breach of contract, a proper exercise of the equitable jurisdiction will not give equitable relief in any case where the legal remedy is full and adequate and does complete justice.

[6] ID.-ID.-ID.-ID.-SPECIFIC PERFORMANCE OF CONTRACTSEXERCISE OF EQUITABLE JURISDICTION-RULE.-The exclusive jurisdiction of equity to grant relief by way of specific performance of a contract will be exercised only in those cases where the legal remedy of compensatory damages is insufficient under the circumstances of the case, in the opinion of the court, to do complete justice between the parties.

[7]

ID.-ID.-ID.-ID.-CONTRACTS ΤΟ MAKE WILLS-PERFORMANCE OF SERVICES-ENFORCEMENT IN EQUITY-RULE.-Equity will only decree specific performance of agreements to leave property by will in consideration of the performance of services only in those cases where the service is of some extraordinary nature and incapable of compensation in money.

[8] ID.-ID.-ID.-ID.-ID.-ID.-ID.-SPECIFIC PERFORMANCE OF OBLIGATIONS-AMENDMENT OF CODE-RULE NOT CHANGED.-The rule in this respect has not been changed under the amendment of 1874 to section 3384 of the Civil Code, striking out the four subdivisions stating instances in which specific performance would be granted and leaving therein the provision that "specific performance of an obligation may be compelled, except as otherwise provided in this article".

[9]

ID.-ID.-ID.-ID.-ID.-ID.-ID.-CONTRACT CONTAINING PROVISION FOR LIQUIDATED DAMAGES-SPECIFIC ENFORCEMENT-CONSTRUCTION OF CODE-RULE NOT CHANGED.-Nor is the rule changed by section 3389 of the Civil Code which provides that a contract otherwise proper to be specifically enforced will be so enforced, notwithstanding it contains a provision declaring the amount which shall be presumed to be the amount of damage sustained by reason of a breach, or one for a penalty in the event of non-performance.

[10] ID. ORAL AGREEMENT BETWEEN HOTEL OWNER AND ASSISTANT MANAGER-BEQUEST OF MONEY-CONTINUANCE OF EMPLOYMENT AND RENDITION OF SERVICES-BREACH-REMEDY-ACTION AT LAW.An oral agreement between a hotel owner and his assistant manager that the former would make a bequest to the latter of $50,000, if the latter would remain in his employ and continue to perform the duties of his position as long as the former continued to conduct such hotel, is not specifically enforceable, as the services are not of an extraordinary character, and an ordinary action at law for breach of contract is the remedy in such a case.

[11] ID.-MONETARY RELIEF-ALTERNATIVE FOR SPECIFIC PERFORMANCE-RULE INAPPLICABLE.-The rule that monetary relief will be given as an alternative for the specific performance to which a plaintiff is really entitled, where, through no fault of his, specific

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