or invests capital in consequence of it: Flickinger v. Shaw, 87 Cal. 126; 22 Am. St. Rep. 235, and note; Baldock v. Atwood, 21 Or. 73.

LICENSE-PROTECTION IN EQUITY. — Courts of equity will not allow license to be revoked when it was given to influence the conduct of another, and has caused him to make large investments: Curtis v. La Grande etc. Water Co., 20 Or. 34; Thomas v. Junction Oity Irr. Co., 80 Tex. 550.

FOR A DISCUSSION OF THE REVOCABILITY OF PAROL LICENSES, see Lawrence v. Springer, 49 N. J. Eq. 289; post, p. 000, and extended note.

MUNICIPAL CORPORATION IS NOT LIABLE FOR 80 Grading a street as to prevent the flow of surface water from an adjacent lot.

John A. McKenna, for the appellant.

Matt Clarken, L. B. Misner, and John Lynch, for the respondent.

FOOTE, C. This an action to abate a nuisance, and for damages. A demurrer was filed to the complaint, one of the grounds of which is, that it did not contain facts sufficient to show a cause of action. The demurrer was sustained, and the plaintiff declining to amend the complaint, judgment was given and made for the defendant, from which this appeal is taken.

It is plain that the alleged nuisance in this case arose from the prevention of the flow of surface water from the defendant's lot down to a swamp adjacent to the Straits of Carquinez, by the raising of the grade of a street of defendant, a municipal corporation. This improvement of the street was made in accordance with lawful authority, unless it be held that the backing up on plaintiff's lot of this surface water, by raising of the grade of the street, made the city liable in damages for the creation of a nuisance in the shape of pools of water, which, it is alleged, were thus created on plaintiff's land. It has been held in this state, in Conniff v. San Francisco, 67 Cal. 45, that embanking and damming the natural channel for the escape of water so as to force it back upon a private owner's lot would render the city liable, but it was also conceded by the

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decision in that case, at page 48, that such a corporation would not be responsible for damages caused by the gathering of "the surface waters not running in a natural channel produced by the raising of a street to the grade established by law." So the law is held to be in 2 Dillon on Municipal Corporations, sec. 1039; Waters v. Village of Bay View, 61 Wis. 644; Henderson v. City of Minneapolis, 32 Minn. 319; Stewart v. City of Clinton, 79 Mo. 612; Clark v. City of Wilmington, 5 Harr. (Del.) 244. In which last case it is said: “The collection of water on lots which are below the grades of new streets is inevitable, and, excepting the case of a running stream, the city would have no power, and it is not legally bound, to draw off the water. . . . . The nuisance is not in the street, but on the lot, and the remedy is by raising the lot to a level with the street, which the city is not bound to do."

From this view of the matter, it is clear that the demurrer was properly sustained, and that the judgment ought to be affirmed, and we so advise.

TEMPLE, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

PATERSON, J., GAROUTTE, J., HARRISON, J.

Hearing in Bank denied.

MUNICIPAL LIABILITY FOR GRADING STREETS is discussed in the notes to Goddard v. Harpswell, 30 Am. St. Rep. 376; O'Brien v. Philadelphia, 30 Am. St. Rep. 835.

WILLIAMS V. FRESNO CANAL AND IRRIGATION CO.

[96 CALIFORNIA, 14.]

CONTRACTOR AND EMPLOYER. IF THE CARRYING OUT OF A CONTRACT 13 NECESSARILY INJURIOUS to a third person, the doctrine of respondeat superior applies. CONTRACTOR AND EMPLOYER. FOR AN ACT OF A CONTRACTOR IN PLOW. ING UP THE LAND OF A THIRD PERSON, and using part thereof in constructing or repairing a canal, his employer is answerable, if it appears that it was part of the contract that the work should involve the using of such land.

PRINCIPAL AND AGENT.-EMPLOYMENT IN WRITING is not necessary to authorize an agent to act for a corporation in raising or otherwise improving a canal, and it may therefore be held answerable for his wrong. ful act in causing the land of a private proprietor to be plowed up, and part of the surface thereof used in improving the canal.

Church and Corey, for the appellants.

Sayle and Corey, for the respondents.

MCFARLAND, J. This action was brought to recover damages for wrongfully digging, plowing, and scraping away the soil of plaintiffs' land, and for an injunction against continuing the said alleged trespasses. The jury returned a verdict for plaintiffs in the sum of $750, for which judgment was entered. Defendant appeals from an order denying a motion for a new trial.

1. The main point urged by appellant is, that the trial court. erred in denying a motion for a nonsuit, made upon the ground "that no evidence has been adduced connecting the Fresno Canal and Irrigation Company with the alleged trespass set out in the complaint."

The appellant, a corporation, owned a canal running along the northern side of respondents' land; and for the purpose of raising and otherwise improving the canal, the top soil of respondents' land was plowed up to an average depth of about one foot, and over a space about sixty feet wide and a quarter of a mile long, and scraped off and piled up on the bank of said canal. The work by which this was accomplished was actually done by one Applegarth, and appellant contends that it was not responsible for the result of such work. But it sufficiently appears from the evidence that one Manuel was the surveyor of the appellant, regularly employed at a monthly salary, and that it was his business to have the work done on the canal; that he made some kind of contract (the particulars of which do not appear) with said Applegarth to do said work, and that by said contract said Applegarth was to take the soil from respondents' land. When A makes an inde pendent contract with B, by which the latter is to do for the former a piece of work in itself harmless, and B does the work so carelessly or unskillfully as to injure a third party, A, as a general rule, is not liable. But when the contract is in its very nature and necessarily injurious to a third party, then the doctrine of respondeat superior applies. In such a case the injury does not result from the manner in which the work is done, but from the fact that it is done at all. In Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345, frequently cited as a strong case against the liability of principals, the court, by Judge Field, says: "If the mode and manner which constituted the defect by which the injuries complained of were occasioned

had been inherent in the plan, and this plan had been devised by Laird and Chambers, which the contractors were engaged to carry out, then liability would attach to Laird and Chambers." In the case at bar, the carrying away of respondents' soil was the very thing contracted for; and it inherently and necessarily caused the injury complained of.

Without reviewing the evidence here at length, it is sufficient to say that, in our opinion, the agency of Manuel to act for the appellant in the matter of repairing and enlarging the canal clearly appears. It was not necessary that his employment for that purpose should have been in writing.

2. The second point made by appellant is, that the verdict is not sustained by the evidence. This, however, is substantially the same as the one made about the nonsuit, and is not tenable.

3. The third and last point made by appellant is, that the court erred in allowing respondent to ask the witness Shipp the following question: "Would you give as much for that eighty acres of land since the digging and scraping as you would have given for that eighty acres of land before?" Assuming that this question was not in proper form, still it is impossible to see how it could have prejudiced appellant. Before the question was asked, the witness had testified at considerable length to the effect that he was a land-owner, and well acquainted with the nature of the soil and the value of land where the premises described in the complaint were situ ated, and that the digging and scraping had taken away from the value of the land. He was afterwards examined minutely, and testified that the land was worth $250 per acre before the scraping; and he said: "I think this digging and scraping has damaged that part dug and scraped to the extent of its whole value," and that the acres thus injured "would not be worth anything now." In the face of this testimony, it was of no importance whether or not he said he would not give as much for the land after the scraping as before; of course he would not.

The order appealed from is affirmed.

CONTRACTOR, LIABILITY OF EMPLOYER FOR ACTS OF.- One who employs a fit and proper person as an independent contractor to do work not in itself unlawful, or a nuisance, or necessarily attended with danger to others, is not responsible for the contractor's negligence: Lancaster Ave. Imp. Oo. v. Rhoads, 116 Pa. St. 377; 2 Am. St. Rep. 608. But employers are liable for injuries during the progress of work, caused by defective construction, which is inher