The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-06-05
County Of sansFranciseo. respondent.

County of Francisco. respondent.
Damages.
The city is not liable for damages
caused by the obstruction OF the flow
of surface waters from the lands Of
a property oWRer, when such obstruc-
tion is occasiored by the necessary and
lawful grading OF the street in front
Of the owners lands. Where the dam
age has resulted solely as conse-
quence of. th& proper execution OF
legal power by the corporation. there
is no implied kabilit therefor. A mu
nicipafity is not bound to protect from
surface water those who may be so
unfortunate as to own property below
the level Of the street.
Is. F., No. 1862 = Department Two
Filed May 81, 1899
Walter A. Coffee, plaintiff; Theo-
dore Park Haynes, defendant; I. W.
Lees, garnishee, appellant. Action for
legal services.
Sections III and 719. c. C. p, have
been held to be constitutional in High
VS.. Bank of Commerce, 90 Cal. 1856.
Section CTS, Penal Code, provides that
life convict is capable of making
and acknowledging a sale or convey
ance of property. Held, that If he may
sell his property, his property can be
taken to pay his debts.
1t is only where property Is lawfully
taken, by virtue of legal process, that
it is in the custody Of the law and not
otherwise. So, where no money was
taken at the time Of prisoners ar
rest nor from his person and had no
connection whatever with the cause
of the arrest, but was found secreted
upon information furnished by the de-
PENDANT and at his request and to fur
nish him with means for his defense,
the money SO taken was not held in
custodia legis.
(S6c., No. 569-Department Two-Filed
June I, 1899
Estate of d. @. Adams, deceased
Elizabeth Adams, respondent; Bank of
Woodland, appellant. Order setting
apart homestead exceeding 5000 in
value. On re Walkerly, 81 Cal. 579)
The insolvency of an estate does not
prevent a court from setting apart a
probate homestead. A homestead is a
right bestowed by the beneficence of
the law of this State for the benefit OF
the family. It may be set apart to-
the widow even though the estate be
| insolvent, and the property so set
apart constitutes the entire estate of
the decedent. See Estate of Moore,
81 CAL 442
Is. F., No. 1.1O7 Department One
Filed June 1, 1899
S. T. Gull, respondent; San. Francisco
and Fresno Land Company, appellant
Action for services. Reversed
If one party is not a servant or en-
ploye of another by the terms Of a
contract, he does not become such by
the breach thereof. So, where A
agreed with B to summer fallow some
lands and B agreed to advance certain
cash toward paying wages and feed,
and B broke his part of the agreement,
there was no contract of employment
Is. F., No. 1,6O9 - Department One
Filed June /, 1899
Caroline Huellmantel. respondent;
Bernard HuelmanteI ct al, appellants
Divorce Modified.
Inc law or the case is stated in
Huellmantel vs. Huellmantel. III Cal.
4O7.
Costs awarded to a party on a first
appeal cannot be included in a judg-
ment against him upon a retrial of the
case.
Is. F., No. 1851 = Department One
Filed June 1, 1899
A Beattle, respondent; G. F. Crewd-
son ct al, respondents. Ejectment. AZ
i firn1ed s.5s
One who purchases real estate is
bound to know who is in possession
| thereof and is chargeable with notice
of the occupants title, and if he had
| notice. actual or constructive, at any
moment of time before the payment of
the money. he is not bona fide pur-
chaser. The burden is upon such a
| purchaser to show that he had not
such notice.
Merely to refuse an answer to the
question, What did she say?" cannot
be held error without the record show
ing affirmatively that the evidence was
, competent and relevant and not hear
say.