[Civ. No. 654. Third Appellate District.-March 21, 1910.]

CHARLES E. SACCHI, Respondent, v. BAYSIDE LUMBER COMPANY, Appellant.

NEGLIGENCE-MOVING OF TIMBER JAM-INJURY TO PLAINTIFF'S LEASEHOLD SUPPORT OF VERDICT.—In an action for damages to plaintiff's leasehold alleged to have resulted from defendant's negligence in moving an immense timber jam existing in a stream above plaintiff's property, so as to cause it to break a dike on plaintiff's land, and causing a flooding thereof with debris from the stream, to the destruction of a great part of plaintiff's grazing land, and to the serious injury of his dairy business, it is held that a verdict for damages to plaintiff's leasehold from defendant's negligence in the sum of $3,500 was fully warranted by the evidence.

ID. QUESTIONS FOR JURY-DISPUTE AS TO CAUSE OF DAMAGE-EFFECT OF VERDICT.-The questions whether the damage was caused by the logging operations of the defendant, negligently conducted, as claimed by plaintiff, or was caused by the operations of a rock quarry, as claimed by defendant, were for the jury to determine. The verdict for the plaintiff is indubitable evidence that the damage was the direct result of defendant's negligence. ID.-DISPUTE AS TO OPERATIONS BY INDEPENDENT CONTRACTORS OR BY DEFENDANT'S AGENTS SUBMISSION TO JURY.-The court properly submitted to the jury the question whether persons receiving a fixed compensation for their services were independent contractors or were agents acting under the supervision of the defendant, where there is a dispute and conflicting evidence on that subject, and the verdict of the jury for the plaintiff is conclusive that they were agents and not independent contractors.

ID.-NATURAL RESULT OF OPERATIONS-KNOWLEDGE AND ANTICIPATION BY DEFENDANT.-The natural result of the operations of the defendant in removing the original jam from its position above plaintiff's land must necessarily have been known to, and anticipated by, defendant and its officers.

ID.-VERDICT CONCLUSIVE ON QUESTIONS OF FACT.-The verdict of the jury is conclusive on all questions of fact submitted thereto by the court or involved in the case.

ID. EVIDENCE BEARING ON DAMAGES-PRODUCTION OF LAND DURING PREVIOUS YEAR.-Evidence as to what the land leased by plaintiff produced in the year previous to that in which the damage was sustained was admissible as tending to show the adaptability of the land damaged to the cultivation of crops growing thereon,

and its capacity for producing crops in such quantity as was essential to the dairy business.

ID. DIMINISHED VALUE OF LEASEHOLD RENTAL VALUE OF DAMAGED LAND COST OF RESTORATION.-Evidence was admissible to show the diminished value of the leasehold during the remainder of the term by reason of the damage caused to the land from defendant's negligence, and, to that end, to prove the rental value of the damaged land per acre, and the cost of restoring the land to the condition in which it was when submerged.

ID. OTHER ELEMENTS OF DAMAGE-DAIRY COWS-BUTTER FAT-COST OF KEEPING ON OTHER LAND.-Evidence of the number of dairy cows kept by plaintiff, of the quantity of butter fat produced from them in the previous year, and of the cost of maintaining them on other land which he was compelled to rent for that purpose, was admissible on the question of damages.

ID. ALL PROOFS OF DAMAGE TO BE CONSIDERED TOGETHER.-All of the proofs relating to the questions of damages are to be considered together, as furnishing as fair a foundation as can be shown or approximately laid to arrive at a just and reasonable assessment of damages.

ID. DAMAGES PROVED NOT REMOTE OR SPECULATIVE-INJURY TO PARTICULAR CROP AND BUSINESS-LOSS OF PROSPECTIVE PROFITS.-The damages proved are not remote or speculative. It is always admissible to prove that land damaged is peculiarly adapted to a particular kind of crop, and what it is capable, under ordinary circumstances, of growing as to kind and quality, and to prove and recover the loss of prospective profits which would naturally flow from a business damaged, had such business not been destroyed or impaired, so as to obstruct its prosecution in the ordinary way in which it has always been conducted.

ID. MEASURE OF DAMAGES-DAMAGE LIKELY TO RESULT FROM TORT.The damages which, in the ordinary course of things, would be likely to result from a wrongful or tortious injury to property are the basis or measure of compensation to which the plaintiff is entitled for the injury so inflicted.

ID. INSTRUCTIONS-ACTION UPON REQUESTS.-Held, that, considering the entire charge of the court, every principle of law applicable to the issues and evidence was correctly declared and explained to the jury with clearness; that correct instructions requested and disallowed were otherwise given in the charges, and that, where requests were modified, it was either because the part modified was either inapplicable or incorrectly stated, or announced elsewhere. LL-INAPPLICABLE REQUEST-INJURIES CAUSED BY "ACT OF GOD."Where there was no evidence to justify a requested instruction that if the jury found that the injuries to plaintiff's property

were caused by the "act of God," defendant would not be liable, it was properly disallowed.

ID. IMPROPER REQUEST BRIDGES FOR PASSAGE OF Cows - Loss LEASEHOLD PROPERTY-DUTY OF REPAIR.-The court properly disallowed a requested instruction that if the bridges spanning small sloughs on plaintiff's land, for the passage of his cows, were part of the realty, plaintiff could not recover for their destruction, where it appears that such bridges were a part of plaintiff's leasehold, and that it was plaintiff's duty to keep the bridges and other fixtures on the land leased in repair. ID.-MISLEADING REQUESTS GENERAL RIGHT TO PROTECT PROPERTY.Where the court had given a proper instruction as to the right of defendant to protect its railroad trestle from injury or destruction by removing the jam therefrom with ordinary care, and with a view to the rights of others below, the court properly refused general and indefinite instructions as to the right of any person to protect his property with the use of ordinary care, which were calculated to mislead the jury that the big jam was wholly disturbed to protect property, when in truth the sole purpose thereof was to utilize part of the timber composing it, and it appears probable that if the body of the jam had been undisturbed, the winter rains would have carried the whole through the stream into Humboldt bay without injury to plaintiff's leasehold.

ID. VERDICT NOT EXCESSIVE-REVIEW UPON APPEAL.-Held, that the face of the record does not show that the verdict was excessive, but shows that the evidence amply justified the amount of damages awarded. The appellate court is not warranted in substituting its judgment for that of the jury and of the trial judge.

APPEAL from a judgment of the Superior Court of Humboldt County, and from an order denying a new trial. G. W. Hunter, Judge.

The facts are stated in the opinion of the court.

Denver Sevier, for Appellant.

Otto C. Gregor, for Respondent.

HART, J.-This is an action for damages for injuries alleged to have been inflicted upon the leasehold of plaintiff through the negligence of the defendant.

The complaint asked for damages in the sum of $5.200, but the jury by whom the cause was tried assessed the damages

at the sum of $3,500, for which amount the court subsequently caused judgment to be entered in favor of plaintiff.

This appeal is from the judgment so entered and the order denying defendant's motion for a new trial.

The injuries alleged to have been sustained to plaintiff's property were the result of the overflow upon his land of the water from Jacoby creek, in Humboldt county, and it is charged that said overflow and the consequent submerging and damaging of plaintiff's land was caused by the negligent acts of the defendant.

The defendant is a corporation, and the purpose for which it was organized as such was to carry on and conduct the logging and lumbering business, in which, for many years. prior to the institution of this action, it and its predecessor, the Bayside Mill and Lumber Company, were engaged on Jacoby creek, in Humboldt county.

The plaintiff, at the time the injuries complained of were sustained, and for some years prior thereto, was the lessee and in the possession of something over three hundred acres of land bordering on said Jacoby creek, and through and over the southwesterly portion of which the channel of said creek passed. Said creek is described in the complaint as "a natural watercourse in said Humboldt county, about twelve miles in length, and flowing in a northwesterly direction and emptying into the northern portion of Humboldt bay. . .; that said Jacoby creek is a stream amply sufficient in width, size and flow of water to carry and bear along and float in its waters to said Humboldt bay, while flowing along from its source to said Humboldt bay, all natural debris, refuse and drift, if unrestrained, which would naturally float or fall into and be carried along by the waters thereof and the natural current of said Jacoby creek."

The complaint further states that, for more than a year prior to the time at which the alleged injuries were inflicted upon plaintiff's leasehold, the said land of plaintiff was "protected by a good and substantial dike and embankment theretofore constructed and built on and along said bank by said plaintiff and his said lessors, and that at the said time. of said hereinafter-mentioned overflow of said Jacoby creek, and for a year or more prior thereto, said dike and embankment was of sufficient width, height and strength to fully

protect, and the same would have fully protected, and did fully protect, said land leased to said plaintiff as aforesaid from and against any encroachment of or overflow by the salt tide waters of said Humboldt bay and the waters of said Jacoby creek in the natural rise and fall and flow of said waters of said Humboldt bay and of said Jacoby creek."

Said land so under lease to plaintiff, it is alleged, was, prior to and at the time of the infliction of the damage complained of, improved and valuable farming and dairy land, "and prior thereto had been properly seeded to tame grasses by said plaintiff and was then valuable grazing land and producing an abundant stand of tame grasses for pasturing purposes, and was then used by said plaintiff as dairy and grazing land."

It is averred that, for more than six years prior to the twentyseventh day of January, 1905, the predecessor of defendant, Bayside Mill and Lumber Company, a corporation, was the owner and in the possession of a large tract of land situated on both sides of Jacoby creek "and lying along said creek, up said creek, from and above" the land leased to plaintiff; that said corporation was for many years engaged in cutting and logging the timber standing on its said tract of land and removing the same therefrom; that, "while said timber was being so cut and removed from said tract of land, and by reason thereof, great quantities of debris and refuse logs, timber and material were worked up from said timber so cut, logged and removed as aforesaid, and remained and were left upon said tract of land, and thereby accumulated thereon and were placed in and left upon, along and adjacent to the banks of said Jacoby creek and in such manner that said debris and refuse logs, timber and material, placed in and left upon, along and adjacent to said banks of Jacoby creek, as aforesaid, would be and were, prior to the second day of January, 1905, in large and excessive quantities carried and floated by the elements and the natural flow and current of said Jacoby creek into the waters of said Jacoby creek."

It is further shown by the complaint that said corporation, in order to restrain and keep said debris, drift, refuse logs and timber, etc., from being carried farther down said creek, and to thereby prevent the bed of said creek from being