of knowledge as to the true dimensions, both tention respondents cite Dillman v. Nadlehoffof which facts appear from the findings, er, 119 Ill. 567, 7 N. E. 88, but an examination plaintiffs were warranted in relying upon the of the opinion discloses that whatever may representations in that regard made to them have been the representations as to the vaby the seller Mills Land & Water Company. lidity of the patents, which were the subject Wainscott v. Occidental, etc., Ass'n, 98 Cal. of the sale, the vendor inserted a clause in 253, 33 Pac. 88. As said by Mr. Pomeroy in the contract to the effect that he did not his work on Equity Jurisprudence (section warrant their validity, nor guarantee that 895): "The mere existence of opportunities they were not an infringement of existing for examination or of sources of information patents. "It shows," says the court, "conis not sufficient"; and, further, quoting from clusively that the contingency of the patents the same section: "An opportunity or means ultimately proving to be invalid in law was of obtaining knowledge is not enough." in the minds of both contracting parties, and Respondents further insist that the facts this was expressly provided for in the agreedisclosed by the map found by the court to ment." "In such case the seller cannot be have been shown plaintiffs, a copy of which held liable for a false representation where was attached to the contract, were such as to nothing appears to show, as is the case here, indicate to them as reasonably prudent men that the seller has been guilty of any artifice that the tract of land was not as represented or other means to prevent the purchaser and described in the contract; that, notwith- from examining and judging for himself." standing the fraudulent representations, such The case at bar is readily distinguished from map and the facts disclosed thereby was a that case in that the false representations warning which they neglected to heed, and as to dimensions were incorporated in the hence they should not afterwards be heard contract, and the representations were well to complain, for the reason that their own calculated to prevent plaintiffs from making conduct contributed to the injury. Reference any surveys or investigation as to the true to this map discloses that delineated thereon dimensions. It is true, as contended by reare blocks 7, 8, 9, 10, and 11, designated in spondents, that the courts of this state have the general description contained in the con- said that "the means of knowledge is equivtract to which it was attached; that these alent to knowledge, and that a party who has blocks were 250 feet in length, measured sub- the opportunity of knowing the facts constantially parallel with the line of the beach, stituting the fraud of which he complains and of a width of 170 feet; that they were cannot be supine and inactive and afterwards separated by unmarked spaces (presumably | allege a want of knowledge that arose by reastreets) 25 feet in width and of a length cor- son of his own laches or negligence." Shain responding with the width of the blocks; v. Sresovich, 104 Cal. 405, 38 Pac. 51; Lady that on the ocean side of said blocks was a Washington C. Co. v. Wood, 113 Cal. 487, 45 space of 10 feet as indicated, marked "Board Pac. 809. But the question concerning which walk," between which and the water line such statement was made was whether or not was an unmarked space of 20 feet. On the the action had been brought within three other or land side of said blocks, extending years after the discovery of the fraud. Hence the length thereof, was a strip of land, the this language can have no application to the width of which was 100 feet, measured from case at bar. Courts of equity will not withthe boundary line of said blocks to a line hold relief from parties ignorant of the true marked, "Curve to connect proposed right of condition who, relying upon false representaway," etc. This strip of land 1,400 feet in tions as to material facts made for the purlength and 100 feet in width was designated pose of inducing assent, are thereby inveigled upon said map as "reserved for right of way into contracts, upon the ground that there for railroads." In view of the fact that the were circumstances calculated to arouse their court found that this map did not correctly suspicion and cause an investigation wheredescribe the land, that it is apparent that the by they might have discovered the swindle. subject of the contract was not five separate The liability of the defendant arises from its and distinct blocks 170 feet in width and of own fraud and false representations, and is an aggregate length of 1,250 feet, and that unaffected by the question of diligence on the no facts were shown by the map which would part of plaintiffs in availing themselves of indicate that defendant owned less land than the opportunity afforded for determining the as represented, we are unable to find anything size of the tract of land, or their failure to in connection therewith calculated to arouse give heed to such warning as the exhibition suspicion on the part of plaintiffs as to the of the map afforded of defendant's dishonfalsity of defendant's representations that it esty. Bank of Woodland v. Hiatt, 58 Cal. 234; did own and was selling to plaintiffs a parcel Wenzel v. Shulz, 78 Cal. 221, 20 Pac. 404; of land of a width of substantially 270 feet, Hanscom v. Drullard, 79 Cal. 234, 21 Pac. added to which is the fact that this general 736; Merguire v. O'Connell, 103 Cal. 50, 36 description by blocks is controlled by the Pac. 1033; Morris v. Courtney, 120 Cal. 63, more particular description following, where- | 52 Pac. 129; Senter v. Senter, 70 Cal. 619, 11 by the tract is described by metes and bounds Pac. 782; Eaton v. Winnie, 20 Mich. 156, 4 in full accordance with the representations Am. Rep. 377; Wilson v. Higbee (C. C.) 62 theretofore made. In support of this con- Fed. 723; Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444; Cawston v. Sturgis, 29 Or. 331,, 18 Cal. 11, 79 Am. Dec. 151. Tide lands are such as are covered and uncovered by the flow and ebb of the ordinary or neap tides (Ward v. Mulford, 32 Cal. 365; People v. Morrill, 26 Cal. 336, 354), and constitute the seashore (Storrer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155), over which the state exercises control and ownership by virtue of its sovereignty (Hall on Rights to the Sea). The land extending to the line indicated by highwater mark at ordinary or neap tide is the subject of private ownership. The line to which the flow of the water reaches at ordinary or neap tide, unaffected by wind or wave, not the line of extreme high The ground upon which the right to rescind is based is twofold, namely, on account of the fraudulent representations, and for a partial failure of consideration. Fraud, in order to warrant the rescission of a contract, must be accompanied by some appreciable loss or dam-tide, nor extreme reach of the wash of the age, for "courts of justice do not act as mere waves, constitutes the boundary line between tribunals of conscience to enforce duties the tract of land in question and the Pacific which are purely moral and involving no Ocean. Accepting finding 12, to the effect pecuniary or tangible injury" (Wainscott v. that defendant is unable to convey more land Occidental, etc., Ass'n, 98 Cal. 253, 33 Pac. than the width of 170 feet at one end and 168 88); and, where the right to rescind is based feet at the other end, as a finding of fact, upon a failure of consideration, such failure and not a conclusion of law, it is nevertheless must be in a material respect (Civ. Code, | predicated upon a measurement shown by subd. 4, § 1689). It is alleged in the com- finding 8 to have been erroneously made, as plaint that the tract of land so represented heretofore stated. to be 270 feet in width did not in fact exceed 170 feet in width, which allegation is negatived by the averments of the answer. The court finds the tract of land to be less than 270 feet, but does not find as to the exact, or even approximate, width thereof. Hence it cannot be determined from the findings whether the deficiency in width so found to exist is such as to entitle plaintiffs to rescind the contract on account of appreciable It follows that the judgment and order appealed from must be reversed, and it is so ordered. We concur: ALLEN, P. J.; TAGGART, J. 9 Cal. App. 591 PRE V. STANDARD PORTLAND CEMENT CO. (Civ. 326.) Dec. 30, 1908.) EDGE OF CONDITIONS-PRESUMPTIONS. In the absence of a showing to the contrary. the court must presume that an adult employé had ordinary intelligence, and hence was chargehe was at work as would disclose themselves able with knowledge of such facts existing where to one having such intelligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 892, 893; Dec. Dig. § 265.*] 2. MASTER AND SERVANT (§ 154*)-INJURY TO SERVANT-FAILURE TO WARN. loss or damage, nor whether the width is (Court of Appeal, Third District, California. sufficiently less to constitute a material failure of consideration. It is true the court finds, by finding 8, the tract of land to be 1. MASTER AND SERVANT (§ 265*)-KNOWL"1,400 feet long bordering upon the Pacific Ocean, and the same had a width at the westerly end of about 168 feet, and a width at the other end thereof of about 170 feet, measured at each end thereof to the point of extreme reach of the wash of the waves; that the width of said land to the highest point of tide level was approximately 35 feet more at the easterly end than the said width of 170 feet, and approximately 55 feet more at the westerly end than said width of 168 feet aforesaid." This is not a finding as to the width of the tract, for the reason that neither "the point of extreme reach of the wash of the waves," nor "the highest point of tide level," constitutes the boundary line of lands bordering on the ocean. "The law takes notice of three kinds of tides, viz.: (1) The high spring tides, which are the fluxes of the sea, at those tides which happen at the two equinoctials; (2) the spring tides, which happen twice every month, at the full and change of the moon; (3) the neap or ordinary tides, which happen at the change and full of the moon, twice in 24 hours." Angell on Tide Waters, p. 68; Teschemacher v. Thompson, Where an employé at work on a clinker pile at a cement works was instructed not to undermine the pile, and was warned of the danger of the pile falling on him, but was not warned of the danger from heat, and the evidence showed that he knew the clinkers were hot, and that men working on the pile would in a few minutes expose hot clinkers, the failure of the employer to warn him against danger from heat was not actionable negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. § 154.*] 3. MASTER AND SERVANT (§ 236*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE PRECAUTIONS AGAINST KNOWN DANGERS. Where an employé on a clinker pile at a cement works was instructed not to undermine the pile and was warned of the danger of the pile falling on him, he was bound to avoid undermining the pile himself, and was required to avoid danger occasioned by other employés undermining it. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 742; Dec. Dig. § 236.*] 4. MASTER AND SERVANT (§ 217*)-INJURY TO SERVANT ASSUMPTION OF RISK. The rule that a master is not liable for dangers existing in the place where the servant works, unless he knows the dangers or might have known thereof by using ordinary care, applies with greater force where the conditions surrounding the work are constantly changing owing to its progress, and, where the servant is under the same obligation as the master to look for dangers in the place of work and has equal facilities for ascertaining them and under those conditions continues the work, the master is not liable for any injury cause by the dangers thus existing, unless in some manner he coerces the servant to continue the work after he himself is aware of the danger. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 583-592; Dec. Dig. 8 217.*] 5. MASTER AND SERVANT (§ 206*)-LIABILITY OF MASTER-RISKS OF THE BUSINESS. Under Civ. Code, §§ 1970, 1971, providing that an employer is not liable to an employé for injuries arising from the ordinary risks of the business, unless due to the employer's want of ordinary care, an employer fulfills his duty when he exercises ordinary care and the master is not responsible for injuries resulting from the natural incidents of the work known to the employé. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. § 206.*] 6. MASTER AND SERVANT (§ 107*)-LIABILITY OF MASTER-PLACE BECOMING DANGEROUS DURING PROGRESS OF WORK. Where a master does all that is incumbent on him in providing the safety of the place in which his servants work, and then commits the safety of it to them as emergencies may arise during the progress of the work, and the place becomes unsafe by reason of changes incidental to the progress of the work, or by reason of the conduct of fellow servants of any servant receiving injury, the master is not responsi ble. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 200, 254, 255; Dec. Dig. § 107.*] 7. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT — - NEGLIGENCE JURY. QUESTION FOR While the question of a master's negligence is for the jury, yet, where only one inference can reasonably be drawn from the evidence, the court is not bound by the conclusion reached by the jury, but may itself draw the inference. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1010; Dec. Dig. § 286.*] 8. MASTER AND SERVANT (§ 291*)-INJURY TO SERVANT ISSUES-INSTRUCTIONS. Where, in an action for injuries to an employé, the issue made by the pleadings that the place where plaintiff was working was changing, and that such change was brought about by him or his fellow servants in the progress of the work, was met by the evidence, the court erred in submitting the cause on the theory that the changing conditions in the place were immaterial and in failing to present the issue in its instructions relating to a safe place to work. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. § 291.*] Appeal from Superior Court, Napa County; H. C. Gesford, Judge. Action by Matteo Pre against the Standard Portland Cement Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. Myrick & Deering, for appellant. Bell & York, for respondent. CHIPMAN, P. J. Action for personal injury. It is alleged in the amended complaint that defendant is operating a cement plant known as the Portland Cement Works, Napa City; that prior to September 14, 1904, plaintiff entered the employment of defendant as a laborer at said works; that at the time of the injury complained of defendant was maintaining a room or house at its said plant, in which it stored ingredients used in manufacturing cement, commonly called "clinkers"; that such material was there stored in large quantities, forming a pile of considerable height; that, after being stored in said room, said clinkers became heated to such extent as to severely burn any person on whom they might fall; that said room was so constructed that said clinkers, as they might be desired for use, could be caused to fall from such pile through holes which could be opened along one side of the floor of said room, into a shaft or conveyor below; that said clinkers, after being so stored, became slacked, and thereby became and were likely to run or slide, and when such holes were opened, and such materials were thereby withdrawn from said room, the said materials which lay immediately above said holes would quickly run through said holes, and thereby would and did leave a high bank from said holes on said floor to the top of said pile of clinkers, and frequently, when a quantity of said clinkers had been so withdrawn, no more thereof would run down said slope or bank"; that defendant "did not provide any machinery or appliance for the purpose of starting the remainder thereof to run into said holes, but would and did direct its employés to go into said room in the trough or vacant space from which such clinkers had been drawn or run off, and shovel said clinkers from said bank into said holes. That such bank was likely at any time to cave in and start to run, and frequently did cave and start to run down from said bank to the vacant space from which such materials had been withdrawn, and would and frequently did fill up said vacant space where said employés were directed to go with said clinkers from such bank, and thereby cover such employés with said heated clinkers." It is then averred "that defendant well knew about said matters hereinabove mentioned, and said place was not a good, safe, or secure place to work in, and said defendant, well knowing the need thereof, did not provide therein a good, safe, or secure place to For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes work in, nor good, safe, or secure materials | The raw material is first ground in a crushor appliances to work with therein"; that, knowing said facts, defendant "directed plaintiff to go into said room or house at said plant or works and to proceed to shovel said clinkers and cause the same to run into said holes; that defendant did not inform plaintiff that said work was in any respect dangerous, and wholly failed and neglected to warn plaintiff of or concerning such or any danger therefrom, and wholly failed and neglected to furnish or supply plaintiff with a good, safe, or secure place in which to do such work, or with a good, safe, or secure tool or appliance with which to do such work; that defendant well knew that plaintiff was wholly ignorant of any danger therefrom, and without fault on his part, and while in said employ and engaged in said work so assigned to him by defendant and as directed by defendant, for want of due care and attention on its part, the pile of clinkers caved or slid from the bank thereof by and through the carelessness and negligence of said defendant, and plaintiff was thereby thrown down and buried by the caving of said burning and hot clinkers, and was thereby burned, crushed, and bruised, and received serious injury therefrom." A general demurrer was overruled, and defendant answered, denying specifically the averments of the complaint. For a separate answer it is averred that at the time the plaintiff received the injury complained of he was at work causing a pile of clinkers to run through certain holes, there to be carried away by a belt passing underneath said holes; that plaintiff had been engaged in said work for some months, and had been instructed by defendant how to perform said labor; that plaintiff was employed "to cause said clinkers to pass through said holes, and in so doing it was necessary that said clinkers either be shoveled into said holes or that said clinkers be caused to cave down from the bank on the side of said hole"; that plaintiff knew that said bank of clinkers "must cave or run down in order that he perform the services required of him and which he had agreed to render"; that he knew that said clinkers were hot and would burn him if they came in contact with his person; that he knew each and every danger connected with his said employment, and thereby assumed all and every risk incident to his said employment; that plaintiff was at the time he received the injuries complained of guilty of contributory negligence which was the direct and proximate cause of the injuries received by him. Resort to the uncontradicted testimony will make somewhat clearer the facts essential to a right understanding of the circumstances connected with the accident. The original materials of which clinkers are composed. and from which cement is made, are er, then run into what is called a ball mill, where it is ground into particles of the size of a mustard seed; thence it goes into what is called a tube mill, and crushed into not quite the fineness of flour; next it goes into the kilns and is burned; thence it is run out on a platform and piled up, and is put through the simple process of being wet. There is next to the outside platform or pile of clinkers a clinker building. The material comes from the kilns on a carrying belt which runs over the clinker pile and, by means of a trip, drops its load at the piles. Here water is put upon the material, and it remains for a week or ten days to "slack and age," the process causing heat "enough to burn anybody." During the slacking process there is heat upon the surface of the pile while the interior is slacking, but does not stay upon the surface very long, and, when about ready to be moved, "the heat that is on the interior of the pile cannot be seen or felt upon the outside, * but down about six inches it is hot enough, down from six to twelve inches." Underneath this pile of clinkers and underneath the clinker building runs a belt upon which the clinkers were dropped through holes or slots in the floor of the platform and clinker building, the holes opening along the side of the piles. These holes occurred at intervals of about 13 feet, and were about 12 or 13 inches square of which there were 10 and were numbered 1, 2, 3, and so on. The clinkers were let down through these slots in succession, commencing with No. 1; the oldest material being over this slot where the carrying belt dumps first. The material is first let down by a man underneath the opening who takes out the slide. "After the man gets through underneath, when this hole is empty, we put a man in there and he pokes it down with a bar. When the incline of the funnel (which forms by the material running out) is so great that it won't come down, a man pokes it down with a bar or shovel." When the material would not run through by gravity, it became necessary to send men to the clinker pile and work it down to and through the slots. The tools required for this work were a shovel, pick, and a bar, 8 to 14 feet long, made of pipe with a point at one end like a chisel. When the clinkers are drawn from the different walls to the holes they are hot, but as exposed to the air they "cool off quick" before striking the belt. If they go "through fast enough, they are hot when they strike the belt,” and “to keep the tunnel from being overheated and to keep the dust out" a fan was installed in the tunwhere the belt ran. Witness Gledhill, who had charge of the shift on which plaintiff went to work, was called by plaintiff. He testified in chief: That plaintiff was a laborer at defendant's works, and had been for two or three months short time after he worked there. A man tember 13th, when plaintiff was injured, all ed on the clinker pile, and he set plaintiff to, hot because he could find it out in a very work there, and he went to work with four men, one plaintiff's brother, all of whom were old workmen and understood the work and were present when Gledhill gave plaintiff his instructions, as to which latter Gledhill testified: "The instructions that I gave him were that I told him to look out it might cave down; that they should not undermine it, they should keep it on an angle of 45°. Well, I motioned to him. I told him as good as I could tell him. He could not understand me. * * There were four men working on that clinker pile with Pre. I think they were all Italians. I know they couldn't talk English. I motioned to Pre not to undermine that pile. I took the shovel and showed him not to undermine the pile; that he should keep it on a slide so that it would not cave down. I think he commenced to work at hole No. 1. I went around there three or four times a shift. Sometimes a couple of times. I did not at any time motion to him as to the condition of the pile so far as heat was concerned. They had taken out about 38 or 40 feet of the pile of clinkers, and were working at hole No. 3 when the plaintiff was hurt. Two of the men were supposed to work on the sides of the clinker pile and two of them on the face of the clinker pile in front. It didn't make any difference which two worked on the face. On this particular night on the 13th of September, 1904 (he went to work on the 11th), some of them were working on the sides and other part of them were working on the face. On this particular date the clinkers directly in front of the men were not old enough to answer all purposes for which we wanted it. For that reason they were pulling down the sides. Four men moving that amount of clinkers in the period which I have stated would be moving that amount very slowly. They were not continually moving them. The effect of the air upon clinkers would be according to how fast they poke it down. If they poke it down fast enough, it would be hot. If they would not, the air would cool it. Would have to go into the pile from 6 to 12 inches to get hot cinders. It would have to stay in about two hours before it cools off a foot. The clinkers constantly roll down from the top if a man pokes it from the top. If he don't they won't." Cross-examination: "The pile of clinkers has been used as it was used on September 14, 1904, for about two years. We have handled these clinkers in the manner they were handled on September 14, 1904, for about two years. ** I saw this plaintiff working on the pile of clinkers several times after I had placed him to work there. At all of those times he was performing work in the manner in which I had told him to. ** The steam and heat comes from the water they put on the clinkers. It comes from the pile of clinkers. I didn't tell the plaintiff in this case the clinkers were any other kind of tool on that clinker pile |