Negligence—Situation oe Land Injured by Levee—Pleading—General Demurrer—Aider of Complaint by Judicial Notice.—Where a complaint for negligence in the construction of a levee causing injury to plaintiff’s land is not definite and specific in itself in regard to the relative situation of the plaintiff’s land and the levee constructed by defendants, its deficiencies may be supplied, as against a general demurrer, by the aid of facts of which the courts take judicial notice.

Id.—Judicial Notice—Line of Levee—Boundaries of City—Act of Incorporation—Public Surveys.—Where the levee was constructed along the west side of the Los Angeles river to the southern charter boundary of the city, the boundaries of which are defined in the act of incorporation by reference to the public surveys of the United States, and the lands of plaintiff are described in the complaint by reference to those surveys, the court will take judicial notice of the boundaries of the city, and of the relative situation of the plaintiff’s land to those boundaries and to the levee constructed by defendants.

Id.—Negligence in Construction of Levee—Sufficiency of Complaint. A complaint shelving that the city of Los Angeles granted lands along the Los Angeles river, including the west hank and a portion of its bed, to a railway corporation, on condition that the grantee should erect a levee to prevent the overflow from river floods of the lands along the western line of the tract granted, and that the railway company did not stop in constructing the levee at the point designated by the city, but extended it to the southern charter boundary, into and nearly across the river-bed, and so negligently and carelessly constructed the levee that it obstructed the natural channel and natural flow of the water, and diverted it from its natural course, and that in an unusual flood the water of the river was directed with such force against the eastern hank that it out a new and permanent channel through lands owned by the plaintiff, and damaged .the plaintiff by washing away a considerable acreage of his land, by the deposit of sand and bowlders, by the division of the tract into two parts separated by a new and permanent channel of the river, and by the destruction of plaintiff’s fences, etc., states a prima facie cause of action for negligence, and is sufficient to throw upon defendants the burden of alleging and proving due care.

Id .—Defense Improperly Stricken Out—Construction of Levee under City Ordinance.—An answer setting up that the levee was constructed and maintained under the terms and conditions of an ordinance of the city of Los Angeles, and was constructed thereunder for the city and not for the railway company, and was the property of the city and used for the protection of its lands from overflow, taken in connection with denials that it was negligently built or constructed, states a defense to the action, and it is error for the court to strike out that portion of the answer setting up the ordinance and contract with the city, and that the levee was constructed under the ordinance for the city and not for the defendant.

Id.—Review of Order Striking Out Pleading—Subsequent Amendment—Inconsistent Defense.—The correctness of an order striking out a part of an answer is to be tested by reference to the state of the pleadings at the time it was made, and the order cannot be supported upon the ground that subsequently the defendant amended its answer by setting up the inconsistent defense that it built the levee on its own land for the protection of its road-bed, tracks, and other property; nor upon the ground that the evidence at the trial did not support or was inconsistent with the defense stricken out.

Id.—Right of City to Build Levee—Protection of City Lands—Increase’of Flood Waters.—The city, as owner and proprietor of municipal lands, has the right to protect them from overflow by erecting a levee along or outside of the natural hanks of the stream, without incurring any liability for the effects of a consequent increase of the flow of flood waters upon the lands of neighboring proprietors.

Id.—Levee Including Part of Bed of Stream—Construction of Answer—Denials—Duty of Court—Error in Striking Out Part of Defense.—Where the portion of the answer stricken out, construed against the pleader, shows that the levy was constructed within the natural banks of the stream and partly in its bed, and there are no allegations as to the character of the river and its bed, or as to other facts justifying the construction of a levee within the natural banks, the part of the answer stricken out does not of itself state a complete defense based upon the right of the city as proprietor to protect its lands from overflow; but the special defense must be taken in its entirety, and the part of the answer stricken out must be construed in connection with and as aided by the denials with which it is coupled, and the answer taken as alleging, not only that the levee was built under the 'authority of the city, and for its use, but also that it was not constructed in disregard of the natural channel of the stream, or so as to divert its waters therefrom, excepting so far as the levee might in times of flood cause the waters to overflow neighboring lands not similarly protected, and that it was not negligently constructed, and, so construed, the answer states a justification of the city, and of the railroad company doing the work for the city, and the court was bound to assume that every thing alleged in the answer could be proven for the purpose of the motion, and it was error to strike out part of the special defense.

Id.—Absence of Negligence—Consequential Damages—Joint and Several Liability for Negligence.—If there was no negligence on the part of the city in creating the plan and fixing the location "of the work, nor on the part of the defendant in the construction of the work, and no departure from the plan of the city, neither the city nor the defendant would be liable for consequential damages; but if there was negligence in a faulty plan and location of the work, so as to make it a dangerous obstruction to the river, which ordinary prudence should have guarded against, both the city and the railway company would be jointly and severally liable for the entire damage caused by such negligence.

Id.—Police Power of Municipal Corporation—Improving Channel and Banks of River.—By the charter of the city of Los Angeles, and by section 11 of article XI of the state constitution, the city is authorized to exercise the police power of the state for local purposes, and the corporate authorities of the city had statutory and constitutional power to improve the channel and banks of the Los Angeles river as they might, in the exercise of a sound discretion, deem most advantageous to the city and its inhabitants; and its work in so doing is distinctly of a public character, and within the police power of the state.

Id.—Means of Executing Police Power—Discretion—Exemption from Liability.—The means of executing the police power in the construction of a levee to improve the channel and banks of a river is confided to the discretion of the municipal body charged with the execution of the work, and if, in creating a plan and locating the lines of the levee, they exercise their judgment honestly and not maliciously, oppressively, or arbitrarily, to the injury of the rights of other persons, the corporation and its authorities cannot be held liable for mere error of judgment, and the persons executing the work with due care, and according to such plan, would be equally exempt from liability for any direct or consequential damage to third parties.

Id.—Defects in Pleading — Motion to Strike Out — Demurrer — Amendment. — The fact that a defense may have been defectively pleaded in some particulars is not ground for a motion to strike out, but the proper method of reaching such defects is by demurrer, and a party who defectively pleads a good defense should be allowed an opportunity of amending his pleading.

Id. — Constitutional Law — Damaging Property por Public Use — Liability of Contractor. — The question whether a municipal corporation is liable for the damaging of private property for public use cannot be material to the defense of a contractor who has built a public levee under authority of the city; but the liability to compensate for any damages to private property owners resulting from the rightful exercise of the municipal power would rest upon the city alone, and the contractor, who has merely constructed the work carefully and properly according to the plan, is exempt from liability.

Id.—Remote Damages—"Validity of Ordinance—Compensation in Advance.—Where the property of the plaintiff was not taken for a levee, and the damage to it was not the natural, certain, and immediate consequence of the building of the levee, an ordinance of the city providing for its construction is not rendered invalid by reason of its failure to provide for compensation to plaintiff in advance of the construction of the levee.

Id. — Instructions — Negligent Construction of Levee — Known Danger of Extraordinary Flood.—An instruction to the effect that if the levee was improperly and negligently built by the defendant, and diverted the river and the channel thereof so as to make them run through the plaintiff’s land, it is no defense that the damage was done in the time of an extraordinary flood, if the danger of an extraordinary flood was known to the defendant, or could have been ascertained by inquiry, and that in such case they were bound to guard against it, must be read in connection with other instructions, and is not objectionable, if, when so read, it could not have been understood to require the defendant to exhaust all possible sources of inquiry as to previous • extraordinary floods, but only to have used ordinary prudence.

Id,—Protection of Lands of Defendant—Injury to Lands.— An instruction that, as matter of law, the defendant had no right to build a levee in the bed of the Los Angeles river in such a way as to obstruct the natural flow of the river, whether in high or low water, to the injury of others, and it makes no difference that the land upon which the levee was constructed belonged to the railroad company, and that although a party owns the bed of the stream, that does not entitle him to build an obstruction in the stream that will damage other lands than his own, is not sufficiently guarded as to the right of the defendant to protect its lands.

Id.—Instruction Assuming Fact—Extraordinary Eloods.—An instruction assuming the fact of the occurrence of extraordinary floods in the past cannot be prejudicial error, where the witnesses were unanimous on that point.

Id.—Modification of Instruction—Protection of Lands of Railroad —Diversion of Water from Natural Channel.—An instruction asked by the defendant, to the effect that it had a lawful right to construct and maintain such levee or other barrier as would be necessary for the protection of its land and railroad from the overflow of the river, is properly modified by the court by adding thereto the clause “provided it did not obstruct the flow in its natural channel, or divert, it ■therefrom, to the injury of the plaintiff.”

Id.—Instruction upon Point, not in Issue.—An instruction should not be given upon a point not in issue.