parties, the judge during the trial visited the premises for the purpose of making a personal inspection, and it is claimed that what he saw and learned by inspection is evidence in the case; that he may have seen that there were natural obstructions which would amount to a fence, or that under the circumstances no fence was necessary or even practicable, as the proposed roadbed was the wash of Arroyo Seco creek. To this suggestion it may be replied that it is not so found, and, if it had been, such finding would be inconsistent with the other testimony in the case; and, further, by finding that good and sufficient fences would cost $100, the court concedes the necessity of a fence. It is also said that the defendant cannot complain, because it has been held that the assessment of the cost of fencing is made to enforce a duty imposed by law, and not as damages to the landowner for an injury to his land. Butte Co. v. Boydston, 64 Cal. 110, 29 Pac. Rep. 511; California S. R. Co. v. Southern Pac. R. Co., 67 Cal. 59, 7 Pac. Rep. 123. But, if such be the case, it is the duty in which the landowner has a special interest, and, if the railroad company does not build the fence, the statute expressly authorizes him to collect the amount. on the other hand, the railroad company, by paying the amount assessed to the landowner, diminishes its responsibility, and renders the landowner liable for certain losses which may occur unless he builds and maintains the fence. Plainly, therefore, it is a matter in which the defendant has a substantial interest, and the error is prejudicial to her. We think the judgment and order should be reversed, and a new trial ordered.

And,

We concur: VANCLIEF, C.: FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and a new trial ordered.

(94 Cal. 470)

COWDEN V. PACIFIC COAST S. S. Co. (No. 14,377.)

(Supreme Court of California. May 6, 1892.) CARRIERS OF FREIGHT-DISCRIMINATION-COMMONLAW LIABILITY.

At common law an action will lie against a common carrier for an unreasonable and excessive freight charge, but not for a mere discrimination in favor of another shipper.

In bank. Appeal from superior court, San Diego county; GEORGE PUTERBAUGH, Judge.

Action by J. B. Cowden against the Pacific Coast Steamship Company to recover damages for a discrimination in freight charges.

L. L. Boone, for appellant. Luce & McDonald, for respondent.

GAROUTTE, J. This is an action brought by plaintiff to recover damages of defendant for a discrimination in freight rates. A demurrer to the complaint was interposed upon the ground that the court had no jurisdiction of the subject-matter of the action, and that no cause of action was stated. The demurrer was sus

tained, and the ruling of the court in this regard is the only matter before us for review.

The complaint substantially alleges that the defendant is a common carrier of freight, by vessel, between Sau Francisco and San Diego, via the Pacific ocean; that between certain dates plaintiff, as a merchant of San Diego, paid to defendant, according to its regular schedule of rates, large sums of money as charges for freight; that defendant charged a second merchant 12% per cent. less for freight of the same character and quantity than it did plaintiff; that said charges were a discrimination against plaintiff, and, though often requested so to do, defendant refused to allow plaintiff such reduced rates, whereby he has been damaged in the sum of $1,674.14. The amount sought to be recovered as damages is the difference between the freight charges made to plaintiff and those made to the more favored merchant. It would seem to be entirely immaterial, to the extent, at least, of the consideration of the merits of this appeal, whether the present action is one of contract or of tort. From either standpoint it arises from a maritime contract solely, and courts of admiralty alone have jurisdiction, unless the cause comes within the reservation found in section 711 of the Revised Statutes of the United States: "The jurisdiction vested in the courts of the United States, in the cases and proceedings hereafter mentioned, shall be exclusive of the courts of the several states;

* (3) Of all civil cases of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a commonlaw remedy, where the common law is competent to give it." There can be no question but that the voyage of a carrier made upon the high seas, even though the ports of departure and destination are in the same state, is under the exclusive control and regulation of congress. It is only the internal commerce and navigation of a state that is under the control and regulation of the state. As was said in Carpenter v. The Emma Johnson, 1 Cliff. 638: "Great mischief would inevitably result from any rule denying admiralty jurisdiction in all cases where the place of the departure of the vessel and the place of her destination are both within the same state, when any part of the voyage is upon the high seas, for every navigator knows that in many such cases nearly the whole voyage is out of the limits of the state." See Lord v. Steamship Co., 102 U. S. 544; Pacific Coast Steamship Co. v. Board of Railroad Com'rs, 18 Fed. Rep. 10.

It follows from the foregoing authorities that plaintiff has no standing in the courts of this state, unless his rights are reserved to him under the reservation of the Revised Statutes previously quoted. In other words, has he a cause of action at common law against the defendant, under the facts of his complaint? The gist of the complaint is that for the same quantity and character of freight plaintiff was charged a sum 12% per cent. greater for transportation from the same point than the other merchant. Respondent in.

sists that at common law the right of action was based upon the rate charged being unreasonable and excessive in itself, and that a mere discrimination, as disclosed in this case, gave no cause of action; that no wrong was committed if the charge was reasonable for the service, and, there being no wrong, no remedy was demanded. Appellant insists that at common law it is the duty of the carrier to "receive and carry goods for all persons alike, and that the rates must not only be reasonable, but equal, when the conditions are substantially the same." It will thus be seen that the merits of this appeal will be concluded by a determination as to what is the common law upon this question; and that is a matter of some difficulty of solution, owing to the divergent views expressed upon the subject by the various courts of this country. This divergence of opinion among the courts has undoubtedly been caused to some extent by the fact that for more than 50 years the courts of England have had no occasion to expound the common law upon this subject; common carriers, especially railway companies, having been placed entirely under the control of the statute law. In this country, to some extent, there is a lack of direct authority upon the question, owing to the fact that constitutional and legislative provisions are common in nearly all the states of this Union, prohibiting common carriers from practicing discrimination in their rates of toll. And, while these statutory and constitutional provisions have been regarded and incidentally declared to be reiterations of the common law by many courts of this country, sound authority upon which to base such declarations is wanting in the books. The fundamental and statute law of the various states upon this subject appears to have been founded upon the principles embodied in the early acts of parliament pertaining to the conduct and control of railways as common carriers, rather than upon the common law of England. Indeed, we have been able to obtain but few direct adjudications from English courts upon this question, owing to the fact that it would seem the business of inland common carriers in that country was not a matter of great concern until railroads were operated; and, immediately subsequent to that great epoch in the world's progress, statutory enactments followed, entirely tak ing away from the courts the necessity of any further application of the commonlaw rights and remedies. If the common law were as appellant here contends it to be, there would have been no necessity for parliament to have enacted these stringent "equality clauses," as they were termed. It appears that this principle of equality of charges arose from the necessity of the times, a necessity created by the operation of railroads, which swallowed up and destroyed all other common carrier systems of England, and thereby created a monopoly of the business, and a power for wrong that at once demanded the restrictions of legislative enactments. This conclusion is fully borne out by the language of Mr. Justice BLACKBURN in

Railway Co. v. Sutton, L. R. 4 H. L. 238, wherein he said: "I think it appears from the preamble of the 90th section of the railways clauses consolidation act (1845) that the legislature was of opinion that the changed state of things arising from the general use of railways made it expedient to impose an obligation on railway companies acting as carriers beyond what is imposed on a carrier at common law. And, if this be borne in mind, I think the construction of the proviso for equality is clear, and is that the defendants may, subject to the limitations in their special acts, charge what they think fit, but not more to one person than they, during the same time, charge to others under the same circumstances. And I think it follows from this that if the defendants do charge more to one person than they, during the same time, charge to others, the charge is, by virtue of the statute, extortionate. And I think the rights and remedies of a person made to pay a charge beyond the limit of equality imposed by the statute on railway companies, acting as carriers, on their line, must he precisely the same as those of a person made to pay a charge beyond the limit imposed by the common law on ordinary carriers as being more than was reasonable. The mode of establishing that the demand is extortionate differs in the two cases. Where it is sought to prove that the charge is unreasonable, and therefore extortionate, the fact that another was charged less is only material as evidence for the jury tending to prove that the reasonable charge was the smaller one. When it is sought to show that the charge is extortionate, as being contrary to the statutable obligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company carried for some other person or class of persons at a lower charge during the period throughout which the party complaining was charged more under the like circumstances.'

99

It is not the purpose of the court to review the authorities of this country upon the question under discussion. For the reasons previously suggested, the matter was only indirectly involved in the great majority of them, and, as authority upon the subject, they are weakened to that extent. The case of Scofield v. Railway Co., 43 Ohio St. 571, 3 N. E. Rep. 907, is the leading case in the United States supporting appellant's contention, and it is upon this case that appellant says "he has pinned his faith and hung his hope." The case of Johnson v. Railroad Co., 16 Fla. 623, is the leading case in this country holding to the contrary view, and the opinion of the learned judge in the Scofield Case does not appear to overrule the doctrine there declared, but would seem to look to the statute law of Ohio for support, rather than to the common law. It says, in speaking of the Florida case: "Reliance is placed on the doctrine that discrimination is not necessarily unlawful, and that all the freighter is entitled to is a reasonable rate, not necessarily equal to all, and, in the absence of any statute to the contrary, we are not inclined to ques

tion the correctness of these decisions." The facts in the Florida case appear to be practically identical with the facts of this case. Florida had no statutory law upon the subject of the regulation of common carriers, and hence, as here, the merits of the case rested upon the determination as to what was the common law upon the subject. In this case the ancient, as well as the modern, authorities are ably reviewed, and the court says: "Our conclusions are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A. and accommodate B.; that all, the entire public, have the right to the same carriage for a reasonable price, and at a reasonable charge for the service performed; that the commonness of the duty to carry for all does not involve a commonness or equality of compensation or charge; that all a shipper can ask of a common carrier is that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual may be a matter of evidence in determining whether a charge is too much or too little for the service performed; and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the smaller charge is the true, reasonable charge, in view of the transportation furnished, and that the higher charge is excessive to that degree." The court also says: "In the last edition of Story on Bailments we find the rule of the common law thus stated: 'At common law a common carrier of goods is not under any obligation to treat all customers equally. He is bound to accept and carry for all upon being paid a reasonable compensation. But the fact that he charges less for one than for another is only evidence to show that a particular charge is unreasonable,nothing more. There is nothing in the common law to hinder a carrier from carrying for favored individuals at any unreasonably low rate, or even gratis."

By reason of the variance which exists in the views of the courts of this country as to what is the common law upon this subject, it would seem that the adjudications of the common-law courts of England upon such a matter should have pre. eminent and controlling weight with the courts of the various states. In the case of Railroad Co. v. Sutton, to which reference has already been made, Mr. Justice BLACKBURN, in a very luminous opinion, addressed in part directly to this question, said: "At common law a person holding himself out as a common carrier of goods was not under any obligation to treat all customers equally. The obligation which the common law imposed upon him was to accept and carry all goods delivered to him for carriage according to his profession, (unless he had some reasonable excuse for not doing so,) on being paid a reasonable compensation for so doing; and, if the carrier refused to accept such goods, an action lay against him for so refusing; and if the customer, in order to

"

induce the carrier to perform the duty, paid, under protest, a larger sum than was reasonable, he might recover back the surplus beyond what the carrier was entitled to receive, in an action for money had and received, as being money extorted from him. But the fact that the carrier charged others less, though it was evidence to show that the charge was unreasonable, was no more than evidence tending that way. There was nothing in the common law to hinder a carrier from car rying for favored individuals at an unreasonably low rate, or even gratis. All that the law required was that he should not charge any more than was reasonable.' The learned justice in his opinion clearly indicates that the prime object of the railway equality clauses enacted by parliament was to cover the exact case of injury by discrimination in freights, such as is claimed by plaintiff in this record. During the progress of the argument in Baxen dale v. Railway Co., 4 C. B. (N. S.) 78, Justice BYLES said: "I know no common-law reason why a carrier may not charge less than what is reasonable to oue person, or even carry him free of all charge." For the foregoing reasons the court concludes that the complaint is deficient in not stating that the charge to plaintiff was unreasonable; and that the allegation of dis crimination or inequality is not the equivalent of an allegation of an excessive charge. Let the judgment be affirmed.

We concur: MCFARLAND, J.; PATERSON, J.; HARRISON, J.

(94 Cal. 489)

SAN BERNARDINO & E. RY. Co. v. HAVEN et al. (No. 14,375.)

(Supreme Court of California. May 7, 1892.) EMINENT DOMAIN COMPENSATION-ELEMENTS OF

DAMAGE.

1. Under Const. art. 1, § 14, which provides that no right of way shall be appropriated until compensation is made, irrespective of any benefits from the proposed improvements, the court properly refused to permit a railroad company to show that the construction of its road would prevent the depreciation of the land not taken, by reason of making the products more accessible to the markets.

2. Where the land through which a right of way is sought to be taken is adapted to cultiva tion, the increased cost of cultivating it, caused by building the road, may be considered in assessing damages.

In bank. Appeal from superior court, San Bernardino county; J. H. CAMPBELL, Judge.

Proceedings by the San Bernardino & Eastern Railway Company against Frances T. Haven and others to condemn a right of way through defendants' lands. From a judgment entered on a verdict assessing damages in favor of each defendant, and from an order denying a new trial, plaintiff appeals. Judgment and order affirmed.

A. Brunson, E. E. Rowell, and Harris & Gregg, for appellant. Rolfe & Freeman, Paris & Fox, and Geo. E. Otis, for respondents.

PER CURIAM. The plaintiff, a railway corporation, instituted this action

against certain parties, as the owners of separate tracts of land, for the purpose of condemning to the use of the corporation a portion of the land of each of the parties owning the tracts, as a right of way for the line of its road across these several tracts. Some of the parties made no answer, and the matter of their compensation is not in issue here. Some answered, setting up that the lands sought to be condemned were not necessary to be taken for the proposed use of the railroad as a right of way, but demanding that, if the lands are taken, the value thereof and damages for the taking, etc., be awarded them. Others filed an answer in the nature of a general denial of the allegations of the complaint. A trial was had before the court and a jury between the plaintiff and the defendants, J. W. Hall, A. M. Ham, H. H. Linville, H. H. Jones, F. E. Dudley, J. D. Langford, C. H. Tyler, J. B. Tyler, James Fleming, and C. A. Lamb. The jury assessed damages in favor of all the parties with respect to each tract of land affected by the taking of the proposed right of way, and upon that the court rendered its judgment, following the verdict of the jury, etc. From that and an order denying a new trial the plaintiff appeals.

The principal errors relied on for a reversal of the judgment and order seem to be the rulings of the court upon the admission and rejection of evidence. The damages alleged to have been done to the land of defendant H. H. Linville, who owned it separate from the other defendants, was being inquired into from him as a witness, and upon cross examination he was asked by plaintiff's counsel these questions: "Is it not a fact that oranges will bring a better price by reason of the railroad being there? Isn't the value of the crop dependent on the market that you have for it, and its accessibility to the market? Will not the accessibility of the produce of the land to the market by reason of the construction of that road prevent any depreciation in its value?" These were all objected to, and the objec. tions sustained by the court on the ground that they were immaterial and irrelevant, in that they sought to show benefits accruing to the land by reason of the improvement proposed; that is, the construction of the railroad. It is argued for the appellant that these questions only sought for evidence to show that the land not taken for the right of way would not be depreciated in value; and therefore no damages could result to it, and that such evidence would not go to show a benefit. We do not so understand the questions. They certainly called for evidence which might show a benefit from the improvement proposed. Article 1, § 14, of the state constitution reads thus: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court or the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespec

tive of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in a court of record, as shall be prescribed by law." It is argued for appellant that the prohibition contained in this section against taking into consideration the benefit to arise from the improvement is limited to that land which is taken for the right of way, and has no reference to benefits that may accrue to the land not taken. This position, however, is in direct opposition to the construction given to the section by this court in Railway Co. v. Porter, 74 Cal. 261, 15 Pac. Rep. 774, and which was afterwards expressly approved in Muller v. Railway Co., 83 Cal. 245, 23 Pac. Rep. 265. While it is true that, if it could be shown that the value of the land would be enhanced by reason of the improvement, the damage sustained by the owner would be to that extent reduced, still such evidence would be only another mode of showing the amount of benefit derived from the improvement; and inasmuch as the constitution declares that the owner is entitled to receive full compensation for the damage done to his land, as well as for the land which is taken, irrespective of any benefit to be thereafter derived by reason of the improvement, such evidence would be irrelevant and immaterial.

Other exceptions were taken by the appellant to the rulings of the court in excluding as well as in admitting evidence upon the issue of damages, but, as the rulings of the court in these particulars appear to have been made in accordance with the foregoing construction of the constitution, it is unnecessary to consider them in detail. For the same reason the following instruction, given at the instance of the defendants, and excepted to by the appellant, was correct, viz.: “In fixing the amount of damages to that portion of the tract of each defendant not sought to be condemned, which may accrue by reason of the running of the railroad through their premises, the jury must ascertain and fix the amount, irrespective of any benefit which may result to defendants from the proposed railroad. It is also claimed by the appellant that the court erred in admitting evidence of the increased cost which might result from a system of irrigation upon some tracts, which would have to be adopted if the railroad were built, beyond that which would be suitable if the road was not built. The objection urged is that the land is uncultivated, and that no such system has yet been adopted, or is in contemplation of adoption. The land ap pears to have been unadapted to cultivation unless irrigated, and the damage caused by the building of the railroad would be increased if, by reason of such building, the owner was compelled to incur greater expense in its irrigation. Although then uncultivated, the land was shown to be adapted to cultivation. If so, the increase of any cost for bringing it under cultivation, caused by the building of the railroad through the land involved, would be a legitimate subject of

inquiry, for the purpose of ascertaining the damage sustained by the owner. The judgment and order are affirmed. (94 Cal. 485)

(No. 14,515.)

MCCREERY V. WELLS. (Supreme Court of California. May 7, 1892.) ACTION FOR MONEY HAD AND RECEIVED-WHEN LIES-HARMLESS ERROR.

1. An action for money had and received does not lie to recover money placed in defendant's hands as an officer of a land pool, and with plaintiff's consent invested in land contracts in trust for plaintiff, though defendant, after the purchase, contrary to plaintiff's wishes, transferred the contracts to a corporation formed of the members of the pool, and refused to issue to plaintiff his proportion of stock in the corporation.

2. Since, in any event, the money could not be recovered in this form of action, the error of finding, contrary to the evidence, that defendant did not receive plaintiff's money, was harmless.

Commissioners' decision. In bank. Appeal from superior court, Los Angeles County; WALTER VAN DYKE, Judge.

Action for money had and received, by Fenton R. McCreery against C. M. Wells. Defendant had judgment, and plaintiff appeals. Affirmed.

Brousseau & Hatch, for appellant. Andersou, Fitzgerald & Anderson, for respondent.

FOOTE, C. The plaintiff sues to recover $5,000 and interest from the defendant. It is alleged in the complaint that the defendant, on the 4th of November, 1887, received $5,000 of the plaintiff's money to be invested for the latter in lands of the "California Cheap Land Pool;" that the defendaut did invest the money in that pool, and in some lands or other investments, but not to the use and benefit of the plaintiff, but in the name of the defendant and for himself; that the plaintiff has demand. ed his money thus invested in the name of the defendant, and has not received it or any part of it, or anything for and on account thereof. For a second cause of action it is alleged that the $5,000 came into the possession of the defendant for and on account of the plaintiff, and as his property, and that it still is held in trust for the plaintiff by the defendant; that the defendant has been called on by the plaintiff for an accounting for that sum of money, and that it be returned and paid to the plaintiff, with interest from the 4th of November, 1887, to which demand the defendant has failed and refused to accede, or to pay anything to the plaintiff, and that the defendant still retains it for and on account of the plaintiff; that the latter is entitled to the return of the money and interest; and, therefore, judgment is demarded, etc. The answer denies these allegations. The cause was tried by the court, and resulted in a judgment for the defendant. A motion for a new trial was made and denied. From the order made in that behalf this appeal is taken.

The findings are assailed as being unsupported by the evidence. They read thus: "(1) The defendant did not receive the sum of $5,000 or any sum of the money or property of plaintiff at any time, for the purpose of investing the same in any lands, or for any purpose, or at all; but the said

$5,000 was received by parties other than the defendant, for the purpose of investing the same in said lands. (2) That defendant did not invest said money, or any money, of the plaintiff to his, the defendant's, use or benefit in any manner, or at all. That said sum of $5,000 was invested for the benefit of and on account of plaintiff in lands of the California Cheap Laud Pool, and plaintiff derived the benefit and use of said investment of said $5,000. (3) That defendant has never received or come into possession of $5,000, or any sum, belonging to, or for or on account of, plaintiff, and has not held any money in trust for plaintiff, and did not and does not retain the same on account of or to the use of plaintiff. (4) That plaintiff is not entitled to said or any sum of money, or to have the same returned to him from the defendant.` From these findings this conclusion of law is declared: "That the plaintiff is not entitled to any relief against the defendant, and defendant is entitled to a judgment that plaintiff take nothing, and for his costs."

The facts of the case, about which there is neither question nor conflict, are, among others, that the defendant received authority from the plaintiff's father to invest a certain $5,000 which the father had of the son's money in a certain cheap land pool, about which the father had been advised by a letter from the defendant; and in pursuance of this arrangement the defendant drew a draft on the father, and sent it for collection through a bank in Los Angeles, of which one Arnold was cashier, as also a member, as was the defendant, of this cheap land pool. The money, when collected, was directed by defendant to be placed to the credit of Arnold as treasurer of this land pool. When the draft was paid, its proceeds were accordingly placed to the credit of Arnold, and were invested, according to the original directions of the father, in the purchase of certain contracts for the purchase of lands, which contracts were taken in the names of Arnold and the defendant. The plaintiff then came to Los Angeles, and seemed to acquiesce in this disposition of his money, which we think beyond all question was in fact invested for him by the defendant, even although he may not and did not actually take the money into his hands or pay it out; for what was done with it was certainly done by his direction. Then, for certain reasons, the plaintiff became dissatisfied, and wanted the land pool to turn over certain of the lands to him as his own. This they would not consent to do, and finally, by a vote of the menibers of the pool, except the plaintiff and one Crawford, they formed a corporation, and Wells, the defendant, and Arnold, against the consent of the plaintiff, transferred the land contracts-that is, equities in lands which they had in their own names individually, but really as trustees for all the pool members to this new corporation, and issued stock in certain proportions to all the members, who accepted it; but, as the plaintiff would not agree to the incorporation or transfer, or consent to the acts of Wells, the defendant, (who, all the while up