power purposes to individuals or corporations, together with lands, buildings, and all other improvements in or upon which to erect, install, place, use, or operate machinery for the purpose of generating and transmitting electricity for any of the purposes or uses above set forth.

NOTE. The amendatory acts of March 21, 1905 (Laws 1905, p. 637), and of March 22, 1911 (Laws 1911, p. 423), do not affect or change any of the paragraphs of this section relating to mining property as hereto. fore amended, except the above. The act of March 20, 1907 (Laws 1907, p. 742), amended this section by adding the words in parentheses in paragraph 12, but the acts of March 22, 1911, of April 10, 1915 (Laws 1915, p. 39), and of April 5, 1917 (Laws 1917, p. 59), omitted these words and paragraph 12 stands as amended by the act of March 22, 1911, without the words in parentheses. The act of June 10, 1913 (Laws 1913, p. 544), makes no changes in the amendatory act of March 22, 1911, so far as it relates to mines and mining property.

CLASSIFICATION.

SEC. 1239, CODE CIVIL PROCEDURE. AMENDMENTS 1873–74, P. 355; MAR. 24, 1874. SEC. 1239. The following is a classification of the estates and rights in lands subject to be taken for public use:

1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding, occasioned thereby, or for an outlet for a flow, or a place for the deposit of débris or tailings of a mine.

SEC. 1239, CODE CIVIL PROCEDURE. LAWS 1913, P. 852; JUNE 14, 1913.

AN ACT to amend section 1239, Code Civil Procedure, *** relating to the classification of the estate and right in lands subject to be taken for public use.

The People, etc.

NOTE. This amendatory act makes no change in this section as the same applies to mines or mining property.

ANNOTATIONS.

EMINENT DOMAIN.

MINING PURPOSES-PRIVATE USE.

Subdivision 4 of this section authorizes the appropriation of property among other things for the construction of canals, ditches, flumes, aqueducts, and pipes for supplying mines, and it is sufficient to invoke the provisions of the statute where the proprietor shows that he has mining claims that can not be worked nor the mineral land developed without water brought upon the same by artificial means; but an appropriation can not be made for a mere private use.

Cummings v. Peters, 56 Cal. 593, p. 596 (1880).

Subdivision 5 of section 1238 authorizes the condemnation of roads, tunnels, ditches, flumes, pipes, and dumping places for working mines as well as outlets for the flow, deposit, or conduct of tailings or refuse matter from the mines; but this does not give one miner the right to condemn for his own private use any road, tunnel, or right of way through mining property or mining claims of another.

Amador Queen Min. Co. v. Dewitt, 73 Cal. 482, p. 484, 15 Pac. 74 (1887).

EMPLOYER'S LIABILITY ACT (WORKMEN'S COMPENSATION

ACT).

EMPLOYER AND EMPLOYEE_DUTY AND LIABILITY.

SECS. 1969-1971, CIVIL CODE.

SEC. 1969. An employer must indemnify his employee, except as prescribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful.

SEC. 1970. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.

SEC. 1971. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care.

ANNOTATIONS.

Under this section a mine operator is not liable to an injured miner where the injury resulted from the negligence of the mine foreman, unless it is shown that the operator neglected to use ordinary care in the selection of the foreman.

Stephens v. Doe, 73 Cal. 26, p. 28; 14 Pac. 378 (1887).

The civil code of California (sec. 1970) expressly provides that an employer shall be liable for an injury to an employee when the same results from the wrongful act, neglect, or default of a person employed by such employer having the right to control or direct the services of the injured employee. Under this statute, and by virtue of the authority given by custom to the head driller or tower boss, he has a right to exercise authority over the drilling of an oil well, and is in fact the vice principal, and exercises authority over a tool dresser.

Arundell v. American Oil Fields Co., - Cal. -, 160 Pac. 159, p. 165 (1916).

Under this act the assumption of risk of a known hazard by a miner no longer affords the employer a defense in an action by a miner for damages for injuries sustained while working in a mine.

Crabbe v. Mammoth Channel Gold Min. Co., 168 Cal. 500, p. 504, 143 Pac. 714 (1914).

ROSEBERRY ACT.

LAWS 1911, P. 796; APR. 8, 1917.

AN ACT relating to the liability of employers for injuries or death sustained by their employees, providing for compensation for the accidental injury of employees, establishing an industrial accident board, making an appropriation therefor, defining its powers and providing for a review of its awards.

The People, etc.

SEC. 1. In any action to recover damages for a personal injury sustained within this State by an employee while engaged in the line of his duty or the course of his employment as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, or of any officer, agent, or servant of the employer, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the

amount of negligence attributable to such employee, and it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury; and it shall not be a defense:

(1) That the employee either expressly or impliedly assumed the risk of the hazard complained of.

(2) That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant.

SEC. 2. No contract, rule, or regulation shall exempt the employer from any of the provisions of the preceding section of this act.

SEC. 3. Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall, without regard to negligence, exist against an employer for any personal injury accidentally sustained by his employees, and for his death if the injury shall approximately cause death, in those cases where the following conditions of compensation concur:

(1) Where, at the time of the accident, both the employer and employee are subject to the provisions of this act according to the succeeding sections hereof.

(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the line of his duty or course of his employment as such.

(3) Where the injury is approximately caused by accident, either with or without negligence, and is not so caused by the wilful misconduct of the employee.

And where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of this act and acts amendatory thereof shall be the exclusive remedy against the employer for such injury or death, except that when the injury was caused by the personal gross negligence or willful personal misconduct of the employer, or by reason of his violation of any statute designed for the protection of employees from bodily injury, the employee may, at his option, either claim compensation under this act or maintain an action for damages therefor; in all other cases the liability of the employer shall be the same as if this and the succeeding sections of this act had not been passed, but shall be subject to the provisions of the preceding sections of this act.

SEC. 4. The following shall constitute employers subject to the provisions of this act within the meaning of the preceding section:

(1) The State, and each county, city and county, city, town, village and school districts, and all public corporations, every person, firm, and private corporation (including any public service corporation) who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall, in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, at the time of such accident, have withdrawn such election, in the manner provided in the next section.

SEC. 5. Such election on the part of the employer shall be made by filing with the industrial accident board, hereinafter provided for, a written statement to the effect that he accepts the provisions of this act, the filing of which statement shall operate, within the meaning of section 3 of this act, to subject such employer to the provisions of this act and all acts amendatory thereof for the term of one year from the date of the filing of such statement, and thereafter, without further act on his part, for successive terms of one year each, unless such employer shall, at least 60 days prior to the expiration of such first or any succeeding year, file in the office of said board a notice in writing to the effect that he withdraws his election to be subject to the provisions of this act.

SEC. 6. The term "employee" as used in section 3 of this act shall be construed to

mean:

(1) Every person in the service of the State, or any county, city or county, city, town, village or school district therein, and all public corporations, under any appointment or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city and county, city, town, village or school district therein or any public corporation, who shall have been elected or appointed for a regular term of one or more years, or to complete the unexpired portion of any such regular

term.

(2) Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the State (who, for the purposes of the next section of this act, shall be considered the same, and shall have the same power of contracting as adult employees), but not including any person whose employment is but casual and not in the usual course of the trade, business, profession, or occupation of his employer.

1. LINE OF EMPLOYMENT.

2. DEFENSES ABROGATED.

ANNOTATIONS.

1. LINE OF EMPLOYMENT.

A miner working in a shaft with directions that when his work was completed he was to go to another shaft and work there, and who, after completing his work, on a day insufferably hot, while passing from the completed shaft to the other in which he was to work, stopped temporarily to rest in the shade of an ore bin and while so resting was killed by the collapse of the bin, can not be charged with wilful misconduct such as to defeat his right to compensation under the California Workmen's Compensation Insurance and Safety Act.

Brooklyn Min. Co. v. Industrial Accident Com., (1916).

Cal.

159 Pac. 162

The civil code of California (sec. 1970) expressly provides that an employer shall be liable for an injury to an employee when the same results from the wrongful act, neglect, or default of a person employed by such employer having the right to control or direct the services of the injured employee. Under this statute, and by virtue of the authority given by custom to the head driller or tower boss, he has a right to exercise authority over the drilling of an oil well, and is, in fact, the vice principal, and exercises authority over a tool dresser.

Arundell v. American Oilfields Co.,

- Cal.

2. DEFENSES ABROGATED.

160 Pac., 159, p. 165 (1916).

Section 1970 of the civil code of California as amended in 1907 took from an employer or a mine operator the benefit of the fellow-servant defense where the negligence was that of an employee having the right to direct and control the injured employee; and the statute of 1911, known as the "Roseberry Act," expressly provides that in actions by employees against employers to recover damages for injuries sustained in the course of the employment it shall not be a defense that the injury was caused by the negligence of a fellow servant.

Gibson v. Kennedy Extension Gold Min. Co., (1916).

Cal.

156 Pac., 56, p. 60

GEOLOGIST.

LAWS 1853, P. 144; MAY 8, 1853.

AN ACT To compensate Dr. John B. Trask for his report on the Geology of the Mineral Districts, and to enable him to make further examinations.

The People, etc.

Sec. 1. The comptroller is hereby required to draw his warrant in favor of Dr. John B. Trask, on the treasurer of state, for the sum of $2,000 to be paid for the geological report furnished by said Trask, and enable him to prosecute further investigations relative to the same subject, under authority of certain resolutions passed by the senate and assembly.

LAWS 1860, P. 225; APR. 21, 1860.

AN ACT to create the office of State geologist and define the duties thereof.

The People, etc.

Sec. 1. J. D. Whitney is hereby appointed State geologist, whose duty it shall be, with the aid of such assistants as he may appoint, to make an accurate and complete geological survey of this State, and to furnish in his report of the same proper maps and diagrams thereof, with a full and scientific description of its rocks, fossils, soils, and minerals, and of its botanical and zoological productions, together with specimens of the same, which specimens shall be properly labeled and arranged, and deposited in such place as shall be hereafter provided for that purpose by the legislature.

Sec. 2. Said State geologist shall, as near as may be, at the beginning of each session of the legislature, present to the governor, who shall lay the same before the legislature, a report of progress, in which the operations of the geological survey during the preceding year shall be set forth, and its more important practical results made public.

SEC. 9. This act shall take effect from and after its passage.

LAWS 1862, P. 423; APR. 25, 1862.

AN ACT supplemental to an act entitled "An act to create the office of State geologist and to define the duties thereof," approved April 21, 1861 (1860).

The People, etc.

SEC. 1. The State geologist is hereby authorized to have printed, and combine in one volume, his first and second annual reports, as required to be made by the section of the act to which this is supplemental, and present the same to the governor and secretary of state, during the session of the legislature of 1863, to be disposed of as already provided for by law.

SEC. 4. This act shall take effect from and after its passage.

LAWS 1863, P. 751; APR. 27, 1863.

AN ACT to appropriate money for the geological survey of the State.