The record-union., 1892-11-16
4 HUMBOLDT CASE.
Judgment of the Lower Court Affirmed
by the Supreme Court.
A Suit Growing Out of the Grading OF
a Street in Eureka-The City
Gains a Victory.

There was filed in Deputy Clerk Co
vans Office yesterday by the Supreme
Court its decision in the case of Richard
son VS.. the City of Eureka Humboldt
County, respondent.
The action was to abate nuisance, and
to recover damages occasioned by the
obstruction of a natural water-course
flowing across the plaintiffs land. The
obstruction complained of consisted of an
embanknent erected in grading street
in the city of Eureka across the natural
water-course referred to.
A motion was made to dismiss the ap-
peal, but the same was denied (92 Cal
ca, the court saying: ANY defects al
legged to exist i'll the statement of the case
will be considered when the cause comes
before us on its proper merits"
sit is urged" says the Supreme Court,
''that the statement ought not to be consid-
cred, because it does not appear by any
Endorsement of the Judge thereon that it
was used on the hearing of the motion for
new trial, and that it does not contain,
or purport to contain, all the evidence.
Neither of these objections is well taken.
The statement appears to have been duly
presented, settled and allowed by The
court. 1t is part of the record, and we
must presume that it was used on the
hearing of the motion, there being moth
ing TO the contrary shown. There IS no
merit in the contention that the state
ment does not contain all the evidence.
The certificate of the Judge that the state
ment is correct is sufficient.
''It is also contended that the statement
was not authenticated. This contention
is based upon the fact that it was not
signed by the moving party or his attor-
neys.
objection was made on that ground
to the settlement OF the statement, where
upon the attorneys for The moving party
asked permission to amend the state
ment by signing the same. This request
was granted and properly SO. The state
ment as presented to the attorneys FOR
the respondent was indorsed, Defend
ants statement of the case,' and service
thereof was accepted without objection.
The attorneys for the moving party could
not have been misled by the omission.
ut is claimed also that the court erred
in allowing the moving party to insert III
the proposed statement a request for its
settlement and allowance. Ii such mat
ter was essential to the validity Of the
statement, there was no error in the Tul
ing of the court, although the amend
ment was made after the time for
the filing of the statement had expired.
(Low VS.. McCallan, 64 Cal. 2; Macadam
lZlng Company VS.. Williams, 20 Cal. 53S.)
''It was alleged in the complaint that
the waters which were caused TO be
thrown back upon plaintiffs properly by
the embankment in the street were the
waters of a natural water-course. The
answer in effect admitted that there had
been a natural watel course across the
plaintiffs properly, but aVerred that for
long time prior thereto it had and now
has no defined course or channel by rea-
son of the improvements made in said
tbrnnDh w
formerly passed had been filled in and
buildings have been constructed thereon;
that streets have been graded over and
along said waterway, and the water
flowing therein now runs through cul-
verts and in sewers
Upon the issue thus raised there was
sharp conflict of evidence. If it was i
natural water-course, the city was not
authorized to place any obstruction across
the channel without taking the necessary
precautions for the escape of the water
flowing therein. There is evidence tend
ing to show that the city attempted to do
this by the construction of a sewer, but
the evidence on behalf of the plaintiff
tended to prove that this sewer had been
changed or abandoned and that no proper
channel of escape had been provided in
lieu thereof. The charge OF the court to
the jury is not in the record, and we
must presume that proper instructions
were given upon all matters connected
with the subject Of the action.
1--WE do not think the court erred in
sustaining the objection to the question:
Now, i'll your opinion, as an expert
would that plastering be in the condition
that you found it, had the building since
the plastering was placed there, settled
six or seven inches?' 1t must be APP
parent to anyone that the plaster Of
building which has settled six or seven
inches cannot be in the condition that it
was before it settled.
There are other exceptions urged by
the counsel for the appellant, but we do
not deem it necessary to discuss them in
this opinion. We have examined them,
and think there is no merit in any OF
them. Judgment and order affirmed"