25 Cal. 315; Hoffman v. San Joaquin Co., 21 Cal. 430.) The nonsuit, therefore, should have been granted; and the verdict and judgment were against the law and the evidence.

Judgment and order reversed, and cause remanded.

SHARPSTEIN, J., PATERSON, J., and THORNTON, J., con

curred.

WORKS, J., dissenting.-I cannot concur in the conclusion reached or the doctrine announced in the foregoing opinion, that a city cannot be held liable for damages for injuries resulting under the circumstances of this case. The obstruction of the street was the direct act of the city. The work being done, which resulted in such obstruction, was the work of the city, and not of a To deny all remedy as against a city, under such circumstances, is in many cases a practical denial of justice.

contractor.

It may be that some of the cases cited in the prevailing opinion are broad enough to cover this case and justify the conclusion reached, but if so, they should, in my judgment, be modified. Most of the cases are for mere negligence of the corporation to keep public highways in repair, or perform some other duty devolving upon its officers. (Huffman v. San Joaquin County, 21 Cal. 426; Sherbourne v. Yuba County, 21 Cal. 113; 81 Am. Dec. 151; Winbigler v. City of Los Angeles, 45 Cal. 36; Tranter v. City of Sacramento, 61 Cal. 271; Moore v. City of Los Angeles, 72 Cal. 287; Barnett v. Contra Costa County, 67 Cal 77.)

Whether these cases state the law correctly or not, it is not necessary to determine. It is enough to say that they differ materially from the case under consideration.

Two of the cases cited may be fairly construed as broad enough to cover this case. (Crowell v. Sonoma County, 25 Cal. 313; Howard v. San Francisco, 51 Cal. 52.)

But so construed, they cannot, in my judgment, be supported either by reason or authority.

Mr. Dillon, in his valuable work on Municipal Corporations, states the rule thus: "Where streets have been rendered unsafe by the direct act, order, or authority of the municipal corporation (not acting through independent contractors, the effect of which will be considered presently), no question has been made or can reasonably exist as to the liability of the corporation for injuries thus produced, where the person suffering them is without contributory fault, or was using due care. Even in those states in which a municipality is not held impliedly liable to a private action for neglecting to keep its streets in repair, it is held to be liable if it, or its officers under its authority, by positive acts, place obstructions on the streets, or by such acts otherwise rendered them unsafe, whereby travelers are injured. Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as those caused by defects caused by the wrongful acts of others, but as in such case the basis of the action is negligence, notice to the corporation of the defect which caused the injury or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability." (Dillon on Municipal Corporations, 3d ed., sec. 1024.)

I take this to be a correct statement of the law, and one that is supported by an overwhelming weight of authority. (Shearman and Redfield on Negligence, secs. 273, 288, 289, 291; Galveston v. Posnaisky, 62 Tex. 118; 50 Am. Rep. 517; Barnes v. District of Columbia, 91 U. S. 540; Ehrgott v. New York, 96 N. Y. 264; 48 Am. Rep. 622; Nelson v. Canisteo, 100 N. Y. 89; Thompson on Negligence, 735, 736, notes; Maximilian v. New York, 62 N. Y. 160; 20 Am. Rep. 468; Harper v. City of Milwau

kee, 30 Wis. 365, 372; Barton v. City of Syracuse, 36 N. Y. 54; Eastman v. Meredith, 36 N. H. 284, 294; 72 Am. Dec. 302; City of Denver v. Rhodes, 9 Col. 554, 562.)

Innumerable cases might be cited to the same effect, but to do so would unnecessarily extend this opinion. Many of them will be found cited in the text-books above referred to. For the reasons stated, I am of the opinion that the judgment and order appealed from should be affirmed.

BEATTY, C. J., concurred in the foregoing opinion of Mr. Justice WORKS.

Rehearing denied.

[No. 12814. In Bank.-April 18, 1889.]

LINCOLN WHITE ET AL., APPELLANTS, v. GEORGE LEE ET AL., RESPONDENTS.

MINING CLAIM-MARKING OF BOUNDARIES-REFERENCE TO PUBLIC SURVEYS. The requirement that the boundaries of a mining claim shall be distinctly marked upon the ground is not satisfied by a reference in the notice of location to the legal subdivision of the public surveys, there being nothing in the notice which could be construed as an adoption of any particular marks.

APPEAL from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.

In this case the locator did not attempt to mark the boundaries of his attempted claim upon the ground. He simply posted his notice of location. The description in the notice was as follows: "All of the southwest quarter of the northwest quarter of section 22, township 11 north, range 7 east, Mount Diablo base and meridian, situated in Pine Grove Mining District, Placer County, California." There was no reference in the notice to the marks of the public surveys, nothing which could be construed as an

adoption of any marks placed by the public surveyors, further than the reference to the quarter-section as above stated. It did not appear how distinctly the section corners had been marked in the first instance, or whether such marks existed at the time of the location in question. The locator testified that "he did not then, and does not now, know where the boundaries of said southwest quarter of the northwest quarter are, except that he knows that it is bounded on the south by the Hoadly placer mine." The further facts are stated in the opinion.

Hale & Craig, and William Singer, Jr., for the Appellants, contended that it was necessary that the boundaries should have been marked, and cited Holland v. Mt. Auburn Co., 53 Cal. 149; Gelcich v. Moriarity, 53 Cal. 217; Funk v. Sterrett, 59 Cal. 613; Newbill v. Thurston, 65 Cal. 119; Du Prat v. James, 65 Cal. 555; Horswell v. Ruiz, 67 Cal. 111; Anderson v. Black, 70 Cal. 226; Gregory v. Pershbaker, 73 Cal. 109.

F. P. Tuttle, for the Respondents, argued that section 2324 of the United States Revised Statutes, which required that the location should be distinctly marked upon the ground, was to be read in connection with sections 2329, 2330, and 2331; and that when so read, it was clear that it did not require the marking of the boundaries of a placer mining claim upon surveyed land; that the object of requiring the boundaries to be marked was to enable them to be readily ascertained, and that the reference to the number of the section and the designation of the particular quarter of that section which was sought to be located enabled the boundaries to be readily ascertained; and that this was all that was required. He further argued that all the cases cited for the appellants, with possibly two exceptions, were cases of quartz or lode claims, and that a different rule applied to placer claims; and that the portion of the opinion in

Gregory v. Pershbaker, relied on for the appellants, was a mere dictum.

HAYNE, C.-Action to determine the right to a mining claim. Judgment for defendants. Plaintiffs appeal.

In 1886 the grantors of the plaintiffs located the land, marked off the boundaries, and did all the other acts required of them by law, and therefore they acquired a valid claim if there was no prior right in the grantors of the defendants. The latter posted and recorded notice of location, but failed to mark off the boundaries. The statute requires that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced." (Rev. Stats., sec. 2324.) And it is well settled that a failure to comply with this requirement invalidates the claim. It is contended for the respondents, however, that the requirement does not apply where the public surveys have been extended over the land, and the claim is for the whole of a legal subdivision; and this is the only question to be determined. The learned counsel for the respondents expressly says: "The one point to be passed upon by the court in this case is, whether in locating a placer mining claim by legal subdivisions on surveyed ground it is necessary to mark the lines of the location." The position is, that this exception to the general requirement follows from other provisions of the Revised Statutes. But we do not think that this position can be maintained.

Section 2329 provides, among other things, that "where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivision of the public lands."

This, however, simply provides where the claimant shall run the lines of his claim. It does not at all dispense with the requirement as to how the lines shall be marked or evidenced.