Eminent Domain—Condemnation of Land fob Levee—Easement of City—Eights of Owner of Eee.—Where property is condemned for public use, and an easement is sufficient for purpose of the use, the fee will not be deemed to be appropriated, unless so stated expressly, or by necessary implication, in the statute or judgment/ ■of condemnation. The fee is not necessary for the purpose of eonstructing, maintaining, and repairing a city levee to keep out flood-waters, and the city has a mere easement therein. The owner of the fee has a proprietary interest above and below the levee and may use the same as he sees fit, provided such use does not impair the construction constituting the easement nor interfere with the use of the easement.

Id.—Levees Constructed under Swamp-Land Act.—Under the statutes of May 13, 1861, and April 9, 1862, authorizing the board of swampland commissioners to construct levees for reclamation purposes, and to enter and take possession of lands for that purpose, upon appraisement of damages therefor, and providing for the turning over to the city levee commissioners of such portion thereof as is to be controlled by the city of Sacramento, and that thereupon "the title to said levees and appurtenances shall vest absolutely in the city," only the easement in the constructed levee, and not the fee, was appropriated by the commissioners and passed to the city.

Id.—Power of Levee Commissioners—Lands Outside of City.—The levee commissioners have no power to condemn land for levee purposes outside of the city for the purpose of constructing a levee thereon.

Id.—Judgment of Condemnation.—Where the petition for condemnation of lands for levee purposes does not ask for a fee, and there is nothing in the report of the appraisers to indicate that the fee was to be taken for levee purposes, and the judgment confirms the report, without stating the nature of the estate taken, the judgment of condemnation only passes an easement, and not a fee simple to the land.

Id.—Bights of City under Easement—Structures.—The easement of the city gives it a right .to erect and maintain on the levee all buildings or other constructions that may be reasonably necessary or convenient for the use to which it is devoted, or which are adopted to preserve it in good condition for that use. This right merely adds to the burden of the easement. Whether or not the maintenance and operation of a railroad upon the levee is an undue interference with the rights of the owner of the fee, or constitutes a substantial addition to the burden on his title, is a question not arising upon this appeal.

Id.—Condemnation Proceeding—Sufficiency of Notice.—Though the law providing for condemnation of land for levee purposes does not specifically require notice, but directs the appraisers appointed ex parte to proceed to the land and hear and determine as to the damages awarded, and the order of court appointing them directed them to give notice of the time of the examination and hearing, which was done to the satisfaction of the court, the notice given appears to be a sufficient compliance with the rule requiring due process of law.

Id.—Authority of City to Act for State Board—Void Condemnation by City.—Where by the terms of the statute the state board of swamp-land commissioners alone had authority to condemn lands for the construction of levees outside of the city, the fact that where the state board was out of funds the city was authorized to come to the aid of the state board, and construct so much of the levee as may be necessary, the moneys to be repaid to the city levee fund out of the first moneys coming into the treasury of the swamp-land district, does not dispense with the necessity of a petition of the state board to condemn lands for the construction of the outside levee; and a condemnation therefor by the city in its own name is without authority of law and void.

Id.—Proceeding for Condemnation Special and Statutory—Petitioning Party—Jurisdiction.—The proceeding for condemnation is special and statutory, and the prescribed method in such eases must be strictly pursued. Where a petition must be presented by one party, a petition filed and presented by some other party would not give the court jurisdiction to proceed.

.Id.—Width and Character of City Easement—Estoppel—Support of Finding.—Held, that the evidence shows no estoppel of the plaintiff to claim that the width and character of the city’s easement for the levee is otherwise than as found by the court, and that the finding of the court on. that subject is supported by sufficient evidence.