allegation in the complaint to show that the destruction of the vessel was caused by the bursting of the boiler, or by any other means admitted to be such as would make the company liable; and conceding that the complaint shows the loss to have occurred by reason of the bursting of the boiler without any fault of the plaintiff, these inquiries remain: 1. Is the explosion of the boiler a peril of the sea within the first clause above quoted? and 2. If it be a peril of the sea, are not the damages resulting therefrom excepted under the special provision of the policy which is quoted above, and which relates to the bursting of the boilers?

Perils of the sea are defined by our Civil Code to be: "Storms and waves; rocks, shoals, and rapids; other obstacles, though of human origin; changes of climate; the confinement necessary at sea; animals peculiar to the sea; and all other dangers peculiar to the sea." (Civ. Code, sec. 2199.) The bursting of a boiler is not within any of the first six causes named. Is it a danger peculiar to the sea? Perils of the sea have been defined to be, "all perils, losses, and misfortunes of a marine character, or of a character incident to a ship as such." (T. & M. 1. Co. v. H. F. & Co., House of Lords, July 14, 1887.) In that case it was said: "The damage to the donkey-engine was not through its being in a ship at sea. The same thing would have happened had the boiler and engines been on land, if the same mismanagement had taken place. The sea, waves, and wind had nothing to do with it. . . . . It is, I think, impossible to say that this is damage occasioned by a cause similar to perils of the sea on any interpretation which has ever been applied to that term. It will be observed that Lord Ellenborough limits the operation of the clause to marine damage. By this I do not understand him to mean only damage which has been caused by the sea, but damage of a character to which a marine adventure is subject. Such an adventure has its own perils, to which either it is exclusively subject, or which possess, in

relation to it, a special or peculiar character. To secure an indemnity against these is the purpose and object of a policy of marine insurance. . . . . But the explosion of the boiler on board the Panama had no marine character at all. It might have happened in precisely the same way, and done the same kind of damage, if a similar engine had been in use for the purpose of moving manufacturing machinery on shore." These views seem to express very clearly the proper meaning of the seventh clause of section 2199, supra.

In support of the contention that an explosion of the boiler is a peril embraced within the list of perils insured against by this policy, appellant cites Adm'rs of Perrin v. Protect. Ins. Co., 11 Ohio, 169, 38 Am. Dec. 728, and Citizens' Ins. Co. v. Glasgow, 9 Mo. 413. In the Ohio case the risks insured against were described in the policy as follows: "Of the seas, rivers, fires, enemies, pirates of the rivers, assailing thieves, and all other losses and misfortunes which shall come to the damage of said steamboat according to the true intent and meaning of said policy." It was there held that the loss occasioned by the bursting of a boiler was a loss within the policy; but we do not understand the court to have held in that In case that such a loss was a loss by peril of the seas. W. 1. P. T. Co. v. H. & C. M. Ins. Co., L. R., 6 Q. B. Div. 57, the Ohio case was quoted approvingly, yet it was there held that the bursting of a boiler was a peril not within the general term "perils of the sea." In Citizens' Ins. Co v. Glasgow, supra, it seems that the policy was the same as in the Ohio case.

In all the cases cited it was held simply that the loss was one which came within the insurance clause providIn the case ing against "all other perils, losses," etc. before us the general clause is, "and all other losses and misfortunes that shall come to the hurt, damage, or detriment of the said vessel or any part thereof, to which insurers are liable by the rules and customs of

insurance in San Francisco, excepting such losses and misfortunes as are excluded by this policy."

Our conclusion is, that the loss complained of herein is not within either the meaning of the term "perils of the sea" as defined in our Civil Code or as understood in the law of marine insurance generally; and of course, if the loss be one which falls under the general clause of the policy, it is sufficient to say that there is no allegation that by the customs of insurance in San Francisco insurers are liable for explosions of boilers or damages resulting therefrom.

2. The construction we place upon the clause of the policy above quoted renders it unnecessary to consider whether the damages are not in any event excepted under that provision of the policy relating to the bursting of boilers. It is proper to say, however, that a clause precisely the same in language was considered by the court of appeals in Strong v. S. M. Ins. Co., 31 N. Y. 103. It was there held that the language is to be understood to mean that the company is not to be liable for damage resulting to the vessel or otherwise on account of the bursting of the boilers, unless occasioned by stranding. Judgment affirmed.

MCKINSTRY, J., and SEARLS, C. J., concurred.

[No. 9864. Department One.-May 15, 1888.]

E. FANNING, APPELLANT, v. F. BOHME ET
RESPONDENTS.

STREET ASSESSMENT-SAN FRANCISCO-ACT OF APRIL 1, 1872-GRADING -DETERMINATION THAT ADJACENT BLOCKS HAD BEEN GRADED.The board of supervisors of the city and county of San Francisco, upon the recommendation of the superintendent of streets, were authorized, by the act of April 1, 1872, to order a block of a street to be graded, without a petition therefor from the property owners, whenever two or more adjacent blocks had been graded on each side of the ungraded one. The grading for which the assessment in question was levied was done under an order so made, upon the determina

tion by the city officials that an adjacent block had been graded about twenty years previously. In the action to foreclose the assessment, the evidence showed that the present grade of the adjacent block varied in places from the official grade, the variation ranging from a few inches to a foot and three quarters. Held, that the evidence was insufficient to overcome the presumption that the block had been graded.

APPEAL from an order of the Superior Court of the city and county of San Francisco refusing a new trial.

The facts are stated in the opinion of the court.

J. M. Wood, and J. C. Bates, for Appellant.

Frank & Eyre, Milton S. Eisner, and Mark J. Platshek, for Respondents.

SEARLS, C. J.-This is an action to foreclose a street assessment for grading. Vallejo Street from Montgomery to Kearny, in the city and county of San Francisco. Under the provisions of an act of the legislature, approved April 1, 1872 (Stats. 1871-72, p. 806), it is provided that "where. any public street shall have been graded, or graded and macadamized, or graded and paved, for the distance of two or more blocks on each side of any one or more blocks or crossings of a street which is not improved," then and in such cases the board of supervisors were authorized, upon the recommendation of the superintendent of public streets, to order such unimproved block to be graded. Under these circumstances the board ordered the block in question graded, without a petition therefor, as is required where the adjacent blocks are not graded. The main question at the trial turned upon the fact as to whether that portion of Vallejo Street between Sansome and Battery, one of the two blocks next east of the block in question, had or had not been graded before the date of the recom mendation of said superintendent. The court below found in favor of plaintiff upon all the facts essential to a recovery, except upon this one, as to which the finding

was, that the block of Vallejo Street between Sansome and Battery had not been graded. This finding is assailed by appellant, as being unwarranted by the evidence.

At the trial plaintiff introduced in evidence the assessment, diagram, warrant, and affidavit of demand, with proof of recordation of such documents, being in form and substance sufficient, prima facie, as is admitted, to entitle plaintiff to recover. Section 12, Statutes of . 1871-72, page 815 (street law of San Francisco), prescribes the rule of evidence as follows: "The said warrant, assessment, and diagram shall be held prima facie evidence of the regularity and correctness of the assessments, and of the prior proceedings and acts of the said superintendent of public streets, highways, and squares, and of the regularity of all the acts and proceedings of the board of supervisors upon which said warrant, assessment, and diagram are based." It must be conceded that, if the evidence adduced by defendant was sufficient to overcome the prima facie case founded upon the performance of the acts specified by statute, then the board of supervisors had no jurisdiction to order the work done. That portion of Vallejo Street involving the block in question, and being between Sansome and Battery streets, runs along the base of Telegraph Hill, and the original surface was about sixty feet above the grade of the street at Sansome, and about fourteen feet above at Battery Street. The official grade of this portion of the street, prior to 1868, was thirty feet above base at Sansome, and ten feet above at Battery Street. In the last-named year the official grade was reduced to twentyeight feet above base at Sansome. The evidence on the part of defendant tended to show that in 1865, 1866, or 1867 the property owners on the block in question graded it by excavating and removing the hill so as to make the street passable for teams, and apparently supposed they had brought the street to the official grade. There can