The herald., 1896-03-14

A Batch of Southern California Decisions
Handed Down
In the case of Joseph Yock VS.. the Home
Mutual Insurance company an interesting
point regarding the storage and use of gas
oline was involved.
The defendant issued its policy of insur-
auce for $4,000 to Mrs. W. H. Brook s, the
assignor of plaintiff, upon frame building
at Santa Ana, used as a country store, and
also upon the household furniture and
stock of merchandise, ''such as is usually
kept in country The insured property
was totally destroyed by fire, and when
claim was put in for the insurance money
the defendant refused payment. 1t was
contended that the insured kept upon the
premises gasoline for sale, in violation of
the terms of the policy, and also that mis-
representations were made regarding the
building. The plaintiff won a verdict in
the trial court and an appeal from the
judgment was taken, and an order deny
ing a new trial.
In affirming the judgment the supreme
court says: "When the defendant agreed
TO insure stock of merchandise such as
is usually kept in country stores it must
be presumed to have the character of the
merchandise which is usually kept in coun-
try stores in mind, and that gasoline was one
of these articles. and, consequently, that its
IL
1t was shown that gasoline is one of the
articles which is usually kept in country
stores, the court correctly held that it was
part of the subject of the insurance, and
that the insured did not violate the policy
by keeping it in stock.''
The Misrepresentation of the building
complained of was the allegation in the
written application for insurance that the
building contained less than fifteen rooms,
when in reality it contained twenty rooms.
1t developed during the trial, however, that
the statement was inserted in the applica-
ton by the agent of the defendant from
Information obtained at his own instance,
thus relieving the insured from RESPONSE
bility.
The Judgment and order are affirmed by
Justice Harrison. Justices Garroute and
Van Fleer concurring.
In the case of A. L. Knox vs.. j. P. Rain
bow, J Jasper, A. e.. Mason, John Judson
and W. Wetzel, the board of supervisors of
San Diego county, it was appealed from a
judgment annulling, on certiorari, the
action of the board denying an application
for license to sell liquor at retail IN Ell
supreme court, shave mistaken their rem
edy. If an official or a board refuses to
perform duty specifically enjoined by
law it is absurd to declare such refusal
void. Setting aside will not affect the fact
if it be fact-that the board has refused
W uO lib uuty. All Oruer was IlOt necessary
to show such refusal. If the board had
any discretion in the matter, and it was not
duty imposed by law, then their abuse, if
II was abuse, cannot be so reviewed. Their
action in such case would be clearly within
their jurisdiction.
Waving all other questions, there is no
mandatory force in such an order. The
effect of tiff it had any-would be to
place the matter before the board as
though no action had been taken.
The Judgment is reversed and the cause
remanded. with directions to the superior
court to dismiss the proce doings. The
decision is written by Justice Temple and
concurred in by Justices Garroutte, Van
Fleet, Harrison, Henshaw and Mcfarland.
In the action of John j. Charnock vs..
francisco Higuerra ct AL, wherein certain
riparian proprietors against certain per-
sons above them OH a stream in Los
Angeles county, to restrain them from
diverting any of the waters of the stream :
1t was found by the court that botn
plaintiffs and defendants are riparian
owners on the stream, the lands of defend
ants being above those of the plaintiffs,
and that neither plaintiffs nor defendants
have any right to the waters. except as
such riparian owners. That all the lands
of the plaintiffs, and thirty acres of the
land of the defendants. are so situated
that the water can be diverted and con-
Quoted thereon solely by natural gravity
from dams in the stream.
That tue defendants erected pumping
machinery on their lands, and by such
means conveyed water from the stream on
to their lands, bordering on the stream and
within its watershed, but which lie too high
to be irrigated by natural gravity.
That all of tine lands Of both partie are
dry and of little value without irrigation.
but OF great value when irrigated.
That defendants have not used nor pro-