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were to continue their respective courses they would pass
so near as to involve the risk of a collision, the helms of both
ships must be put to port so as to pass on the port side of
each other; and this rule applies to all steamers and all sail-
ing ships, whether on the port or starboard tack, and whether
close-hauled or not, except where the circumstances of tlic
case are such as to render a departure from the rule neces-
sary in order to avoid immediate danger, and subject also
to a due regard to the dangers of navigation, and, as regards
sailing ships on the starboard tack close-hauled, to the keep-
ing such ships under command;

2. Rules for sailing vessels. In the case of sailing vessels,
those having the wind fair must give way to those on a

15 449



§971 . CIVIL CODE. [Div.II.Pt.III.

wind. When both are going by the wind, the vessel on the
starboard tack must keep her wind, and the one on the lar-
board tack bear up strongly, passing each other on the lar-
board hand. When both vessels have the wind large or
abeam, and meet, they must pass each other in the same way
on the larboard hand, to effect which two last-mentioned
objects the helm must be put to port. Steam vessels must
be regarded as vessels navigating with a fair wind, and
should give way to sailing vessels on a wind of either tack;

3. Rules for steamers in narrow channels. A steamer nav-
igating a narrow channel must, whenever it is safe and prac-
ticable, keep to that side of the fairway or mid channel
which lies on the starboard side of the steamer;

4. Same. [Pass on starboard side.] A steamer when
passing another steamer in such channel, must always leave
the other upon the larboard side;

5. Rules for steam vessels on different courses. When
steamers must inevitably or necessarily cross so near that by
continuing their respective courses, there would be a risk of
collision, each vessel must put her helm to port, so as al-
ways to pass on the larboard side of each other;

6. Meeting of steamers. The rules of this section do not
apply to any case for which a different rule is provided by
the regulations for the government of pilots of steamers ap-
proaching each other within the sound of the steam-whistit,
or by the regulations concerning lights upon steamers, pre-
scribed by or under authority of the laws of the United
States.

Histiiry: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held
unconstitutional, see history, § 4 ante; amendment re-enacled
March 21, 1905, Stats, and Amdts. 1905, p. 600.

§971. COLLISION FROM BREACH OF RULES. If it

appears that a collision was occasioned by failure to observe
any rule of the foregoing section, the owner of the ship by

450



Tit.II,ch.II,art.lI.] BREACH OP RULES— LOSS. §§972,973

which such rule is infringed cannot recover compensation
for damages sustained by the ship in such collision, unless it
appears that the circumstances of the case made a departure
from the rule necessarj'.

History: Enacted March 21, 1S72.

§972. BREACHES OF SUCH RULES TO IMPLY
WILFUL DEFAULT. Damage to person or property
arising from the failure of a ship to observe any rule of sec-
tion nine hundred and seventj^ must be deemed to have b&en
occasioned by the wilful default of the person in charge of
the deck of such ship at the time, unless it appears that the
circumstances of the case made a departure from the rule
necessary.

History: Enacted March 21, 1872.

§973. LOSS, HOW APPORTIONED. Losses caused
by collision are to be borne as follows:

1. If either party was exclusively in fault he must bear
his own loss, and compensate the other for any loss he has
sustained;

2. If neither was in fault, the loss must be borne by him
on whom it falls;

3. If both were in fault, the loss is to be equally divided,
unless it appears that there was a great disparity in fault,
in which case the loss must be equitably apportioned;

4. If it cannot be ascertained where the fault lies, the loss
must be equall}' divided.

History: Enacted March 21, 1872.



451



§§980-982 CIVIL CODE. [Div.II,Pt.IIl.



CHAPTER III.

PRODUCTS OP THE MIND.

§ 980. How far the .subject of ownership.

§ 981. Joint authorship.

§ 9S2. Transfer.

§ 983. Effect of publication.

§ 984. Subsequent inventor, author, etc.

§ 985. Private writings.

§980. HOW FAR THE SUBJECT OF OWNERSHIP.

The author of any product of the mind, whether it is an
invention, or a composition in letters or art, or a design,
with or without delineation, or other graphical representa-
tion, has an exclusive ownership therein, and in the repre-
sentation or expression thereof, which continues so long as
the product and the representations or expressions thereof
made by him remain in his possession.

History: Enacted March 21, 1872.

§ 981. JOINT AUTHORSHIP. Unless otherwise agreed,
a product of the mind in the production of which several
persons are jointly concerned, is owned by them as fol-
lows:

1. If the product is single, in equal proportions;

2. If it is not single, in proportion to the contribution of
each.

History: Enacted March 21, 1872.

§982. TRANSFER. The owner of any product of the
mind, or of any representation or expression thereof, may
transfer his property in the same.

History: Enacted March 21, 1872.

452



Tit.II.ch.III.] EFFECT OP PUBLICATION. §§983-985

§983. EFFECT OF PUBLICATION. If the owner of a
product of the mind intentionally makes it public, a copy or
reproduction may be made public by any person, without
responsibility to the owner, so far as the law of this state
is concerned.

History: Enacted March 21, 1872.

§984. SUBSEQUENT INVENTOR, AUTHOR, ETC.

If the owner of a product of the mind does not make it pub-
lic, any other person subsequently and originally produc-
ing the same thing has the same right therein as the prior
author, which is exclusive to the same extent against all per-
sons except the prior author, or those claiming under him.

History: Enacted March 21, 1S72.

§ 985. PRIVATE WRITINGS. Letters and other private
communications in writing belong to the person to whom
they are addressed and delivered; but they cannot be pub-
lished against the will of the writer, except by authority of
law.

History: Enacted March 21, 187 2.



453



§§991-993 CIVIL CODE. [Div.II,Pt.III.



CHAPTER IV.

OTHER KINDS OF PERSONAL PROPERTY.

§ 991. Trade-marks and signs.

§ 992. Good-will of business.

§ 993. Good-will and name, transfer of.

§ 994. Title deeds.

§ 995. "Tare" on baled hops.

§991. TRADE-MARKS AND SIGNS. One who pro-
duces or deals in a particular thing, or conducts a particular
business, may appropriate to his exclusive use, as a trade-
mark, any form, symbol, or name which has not been so ap-
propriated by another, to designate the origin or ownership
thereof; but he cannot exclusively appropriate any designa-
tion, or part of a designation, which relates only to the name,
quality, or the description of the thing or business, or the
place where the thing is produced, or the business is carried
on.

HLstiiry: Enacted March 21, 1872; amended March 30, 1S74,
Code Amdts. 1873-4, p. 224.

See Act 1863. — Derringer vs. Plate, 29 Cal. 292, 294, 87 Am.
Dec. 170.

§992. GOOD-WILL OF BUSINESS. The good-will of
a business .is the expectation of continued public patronage,
but it does not include a right to use the name of any per-
son from whom it was acquired.

History: Enacted March 21, 1872.

§993. GOOD-WILL AND NAME, TRANSFER OF.

The good-will of a business is propertj^ transferable like
any other, and the person transferring it may transfer with

454



Tit. II, ch. IV.] TITLE DEEDS— "TARE." §§994,995

it the right of using the name under which the business is
conducted.

History: Enacted March 21, 1872; amended by Code Commis-
sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 395, held
unconstitutional, see history, § 4 ante; amendment re-enacted
March 21, 1905, Stats, and Amdts. 1905, p. 602.

§994. TITLE DEEDS. Instruments essential to the title
of real property, and which are not kept in a public office as
a record, pursuant to law, belong to the person in whom, for
the time being, such title may be vested, and pass with the
title.

History: Enacted March 21, 1872.

§995. "TARE" ON BALED HOPS. There shall be al-
lowed on baled hops a tare at the rate of two per centum of
the weight of the bale for the cloth and other material used
in baling; that is, the tare shall be at the rate of two pounds
per hundred on the weight of the bale.

History: Enacted March 21, 1907, Stats, and Amdts. 1907, p.
845, Kerr's Stats, and Amdts. 1906-7, p. 423.



45S



PART IV.

ACQUISITION OF PROPERTY

Title I Modes in which property may be acquired, §§ 1000-
1001.
II. Occupancy, §§ 1006-1007.

III. Accession, §§ 1013-1033.

IV. Transfer, §§ 1039-1231.

V. Homesteads, §§ 1237-1269c.

VI. Wills, §§ 1270-1377.

VII. Succession, §§ 1383-1408.

VIII. Water Rights, §§ 1410-1422.

IX. Hydraulic Mining, §§ 1424-1425.

X. Locating Mining Claims, Tunnel Rights, Mill-sites,
§§ 1426-1426S.



457



Tit.I.] ACQUISITION OF PROPERTY. §§ IQOO, 1001



TITLE I.

MODES IN WHICH PROPERTY MAY BE ACQUIRED

§ 1000. Property, how acquired.

§ 1001. Acquisition of property by exercise of eminent domain.

§ 1000. PROPERTY, HOW ACQUIRED. Property is
acquired by:

1. Occupancy;

2. Accession;

3. Transfer;

4. Will; or,

5. Succession.

History: Enacted March 21, 1872.

§ 1001. ACQUISITION OF PROPERTY BY EXER-
CISE OF EMINENT DOMAIN. Any person may, without
further legislative action, acquire private property for any
use specified in section twelve hundred and thirty-eight of
the Code of Civil Procedure either by consent of the owner
or by proceedings had under the provisions of title seven,
part three, of the Code of Civil Procedure; and any person
seeking to acquire property for any of the uses mentioned
in'such title is "an agent of the state," or a "person in charge
of such use," within the meaning of those terms as used in
such title. This section shall be in force from and after
the fourth day of April, eighteen hundred and seventy-two.

History: Enacted March 21, IS? 2.



459



§§1006,1007 CIVIL CODE. [Div.II,Pt.]V.



TITLE II.

OCCUPANCY.

§ 1006. Simple occupancy.
§ 1007. Prescription.

§ 1006. SIMPLE OCCUPANCY. Occupancy for any pe-
riod confers a title sufficient against all except the state and
those Avho have title by prescription, accession, transfer,
will, or succession; provided, however, that the title con-
ferred by such occupancy shall not be a sufficient interest in
real property to entitle the occupant or his pivies to com-
mertce or maintain an action to quiet title under the provi-
sions of section seven hundred thirty-eight of the Code
of Civil Procedure of this state, unless such occupancy shall
have ripened into title by prescription.

History: Enacted March 21, 1S72; amended May 29, 1915,
Stats, and Amdts. 1915, p. 93S. In effeot August 8, 1915.

§ 1007. PRESCRIPTION. Occupancy for the period pre-
scribed by the Code of Civil Procedure, as sufficient to bar
an action for the recovery of the property confers a title
thereto, denominated a title by prescription, which is suf-
ficient against all.

History: Enacted March 21, 1872. *



460



Tit.III,ch.I.] FIXTURES— ALLUVION. §§1013,1014



TITLE III.

ACCESSION.

Chapter I. To Real Property, §§ 1013-1019.

II. To Personal Property, §§ 1025-1033.



CHAPTER I.

ACCESSION TO REAL PROPERTY.

§ 1013. Fixtures.

§ 1014. Alluvion.

§ 1015. Sudden removal of bank.

§ 1016. Islands, in navigable streams.

§ 1017. [Same.]' In unnavigable streams.

§ 1018. Islands formed by division of stream.

§ 1019. Fixtures, removal of by tenant.

§ 1013. FIXTURES. When a person affixes his property
to the land of another, v^^ithout an agreement permitting him
to remove it, the thing affixed, except as provided in sec-
tion ten hundred and nineteen, belongs to the owner of the
land, unless he chooses to require the former to remove it.

History: Enacted March 21, 1S72; amended March 30, 1874,
Code Amdts. 1873-4, p. 224.

§ 1014. ALLUVION. Where, from natural causes, land
forms by imperceptible degrees upon the bank of a river or
stream, navigable or not navigable, either by accumulation
of material or by the recession of the stream, such land be-
longs to the owner of the bank, subject to an}- existing right
of way over the bank.

History: Enacted Mai'ch 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held
unconstitutional, see history, § 4 ante.

461



§§1015-1019 CIVIL CODE. [Div.II.Pt.lV.

§ 1015. SUDDEN REMOVAL OF BANK. If a river or
stream, navigable or not navigable, carries away, by sudden
violence, a considerable and distinguishable part of a bank,
and bears it to the opposite bank, or to another part of the
same bank, the owner of the part carried away may reclaim
it within a year after the owner of the land to which it has
been united takes possession thereof.

History: Enacted March 21. 1S72.

§ 1016. ISLANDS, IN NAVIGABLE STREAMS. Is-
lands and accumulations of land, forined in the beds of
streams which are navigable, belong to the state, if there is
no title or prescription to the contrary.

History: Enacted March 21, 18 72.

§ 1017. [SAME.] IN UNNAVIGABLE STREAMS.

An island, or an accumulation of land, formed in a stream
which is not navigable, belongs to the owner of the shore
on that side where the island or accumulation is formed; or,
if not formed on one side only, to the owners of the shore
on the two sides, divided by an imaginary line drawn through
the middle of the river.

History: Enacted March 21, 1872; amended by Code Commi.s-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held
unconstitutional, see history, § 4 ante.

§ 1018. ISLANDS FORMED BY DIVISION OF
STREAM. If a stream, navigable or not navigable, in form-
ing itself a new arm, divides itself and surrounds land be-
longing to the owner of the shore, and thereby forms an is-
land, the island belongs to such owner.

History: Enacted March 21, 1872.

§ 1019. FIXTURES, REMOVAL OF BY TENANT. A

tenant may remove from the demised premises, an}- time dur-

462



Tit.III.ch.II.] ACCESSION BY UNITING. §§ 1025, 1026

ing the continuance of his term, anything affixed thereto for
purposes of trade, manufacture, ornament, or domestic use,
if the removal can be effected without injury to the premises,
unless the thing has, by the manner in which it* is affixed,
become an integral part of the premises.

History: Original section, relating to abandonment of bed of
stream, enacted March 21, 1872, was repealed and the above pro-
vision substituted therefor by Act March 30, 1874, Code Amdts.
1873-4, p. 225. •



CHAPTER II.

ACCESSION TO PERSONAL PROPERTY.

§ 1025. Accession by uniting several things.

§ 1026. Principal part, what.

§ 1027. Same. [The more valuable of bulky.]

§ 1028. Uniting materials and workmanship.

§ 1029. Inseparable materials.

§ 1030. Materials of several owners.

§ 1031. Wilful trespassers.

§.1032. Owner may elect between the thing and its value.

§ 1033. Wrong-doer liable in damages.

§ 1025. ACCESSION BY UNITING SEVERAL
THINGS. When things belonging to difterent owners have
been united so as to form a single thing, and cannot be sep-
arated w'ithout injury, the whole belongs to the owner of
the thing which forms the principal part; who must, how-
ever, reimburse the value of the residue to the other owner,
or surrender the whole to him.

History: Enacted March 21, 1872.

§ 1026. PRINCIPAL PART, WHAT. That part is to be
deemed the principal to which the other has been united
only for the use, ornament, or completion of the former,

463



§§1027-1030 CIVIL CODE. [Div.II,Pt.IV.

unless the latter is the more valuable, and has been unitea
without the knowledge of its owner, who may, in the latter
case, require it to be separated and returned to him, although
some injufy should result to the thing to which it has been
united.

History: Enacted March 21, 1872.

I

§ 1027. SAME. [THE MORE VALUABLE OR
BULKY.] If neither can be considered the principal, with-
in the rule prescribed by the last section, the more valuable,
or, if the values are nearly equal, the more considerable in
bulk, is to be deemed the principal part.

History: Enacted March 21, 1872.

§ 1028. UNITING MATERIALS AND WORKMAN-
SHIP. If one makes a thing from materials belonging to
another, the latter may claim the thing on reimbursing the
value of the workmanship, unless the value of the work-
manship exceeds the value of the materials, in which case the
thing belongs to the maker, on reimbursing the value of the
materials.

History: Enacted March 21, 1872.

§1029. INSEPARABLE MATERIALS. Where one has
made use of materials which in part belong to him and in
part to another, in order to form a thing of a new descrip-
tion, without having destroyed any of the materials, but in
such a way that they cannot be separated without incon-
venience, the thing foriped is common to both proprietors;
in proportion, as respects the one, of the materials belong-
ing to him, and as respects the other, of the materials be-
longing to him and the price of his workmanship.

History: Enacted March 21, 1872.

§ 1030. MATERIALS OF SEVERAL OWNERS. When
a thing has been formed by the admixture of several mate-

464



Tit.III.ch.lI.] . TRESPASS— ELECTION. §§1031-1033

rials of different owners, and neither can be considered the
principal substance, an owner without whose consent the
admixture was made may require a separation, if the mate-
rials can be separated without inconvenience. If they can-
not be thus separated, the owners acquire the thing in com-
mon, in proportion to the quantity, quality, and value of
their materials; but if the materials of one were far superior
to those of the others, both in quantity and value, he may
claim the thing on reimbursing to the others the value of
their materials.

History: Enacted March 21, 1ST2. i

§ 1031. WILFUL TRESPASSERS. The foregoing sec-
tions of this article are not applicable to cases in which one
wilfully uses the materials of another without his consent;
but, in such cases, the product belongs to the owner of the
material, if its identity can be traced.

HLstory: Enacted March 21, 1S72.

§ 1032. OWNER MAY ELECT BETWEEN THE
THING AND ITS VALUE. In all cases where one whose
material has been used without his knowledge, in order to
form a product of a different description, can claim an in-
terest in such product, he has an option to demand either
restitution of his material in kind, in the same quantity,
weight, measure, and quality, or the value thereof; or where
he is entitled to the product, the value thereof in place of
the product.

Hi.story: Enacted March 23, liS72.

§1033. WRONG-DOER LIABLE IN DAMAGES. One

who wrongful!}' employ's materials belonging to anotlier is
liable to him in damages, as well as under the foregoing pro-
visions of this chapter.

History: Enacted March 21, 1872.

465 .



§1039 CIVIL CODE. [Div.II,Pt.IV.



TITLE IV.

TRANSFER

The obligations of the parties to a transfer for considera-
tion, or to a contract of hiring, are regulated by the titles
on sales, on exchange, and on hiring. Transfers in trust
for the benefit of creditors are regulated by the part on debt-
or and creditor. — Commissioners' note.



Chapter I. Transfer in General, §§ 1039-1085.

II. Transfer of Real Property, §§1091-1115.
III. Transfer of Personal Property, §§ 1135-1153.
IV. Recording Transfers of Real Property, §§ 1158-

1218.
V. Unlawful Transfers, §§ 1227-1231.



CHAPTER I.

TRANSFERS IN GENERAL

Article I. Definition of Transfer, §§ 1039-1040

II. What May Be Transferred, §§1044-1047.

III. Mode of Transfer, §§ 1052-1060.

IV. Interpretation of Grants, §§ 1066-1072.
V. Effect of Transfer, §§ 1083-1085.



466



Tit.IV.ch.I.arts.1,11.] TRANSFERS. §1039-1045



ARTICLE I.

DEFINITION OF TRANSFER.

§ 1039. Transfer, what.

§ 1040. Voluntary transfer.

§ 1039. TRANSFER, WHAT. Transfer is an act of the

parties, or of the law, by which the title to property is con-
veyed from one living person to another.

History: Enacted March 21, 1872.

§ 1040. VOLUNTARY TRANSFER. A voluntary trans-
fer is an executed contract, subject to all rules of law con-
cerning contracts in general; except that a consideration is

not necessary to its validity.
I
History: Enacted March 21, 1872.



ARTICLE II.

WHAT MAY BE TRANSFERRED.

§ 1044. "What may be transferred.

§ 1045. Possibility.

§ 1046. Right of re-entry can be transferred.

§ 1047. Owner ousted of possession may transfer.

§ 1044. WHAT MAY BE TRANSFERRED. Property
of any kind maj' be transferred, except as otherwise provid-
ed by this article.

Hi.story: Enacted March 21, 1872.

§ 1045. POSSIBILITY. A mere possibility, not coupled
with an interest, cannot be transferred.

History: Enacted March 21, 1872.

467



§§1046-1053 CIVIL CODE. [Div.II.Pt.lV.

§ 1046. RIGHT OF RE-ENTRY CAN BE TRANS-
FERRED. A right of re-entry, or of repossession for breacli
of condition subsequent, can be transferred.

History: Enacted March 21, 1872.

§ 1047. OWNER OUSTED OF POSSESSION MAY
TRANSFER. Any person claiming title to real property in
the adverse possession of another may transfer it with the
same effect as if in actual possession.

History: Enacted March 21, 1S72.



ARTICLE III.

MODE OF TRANSFER.

§ 1052. T\ hen oral.

§ 1053. Grant, what.

§ 1054. Delivery necessary.

§ 1055. Date.

§ 1056. Delivery to grantee is necessarily absolute.

§ 1057. Delivery in escrow.

§ 1058. Surrendering or canceling grant does not reconvey.

§ 1059. Constructive delivery.

§ 1060. Gratuitous grants take effect immediately; exception
[repealed].

§ 1052. WHEN ORAL. A transfer may be made with-
out writing, in every case in which a writing is not express-
ly required by statute.

History: Enacted March 21, 1872.

§ 1053. GRANT, WHAT. A transfer in writing is called
a grant, or convej^ance, or bill of sale. The term "grant,"
in this and the next two articles, includes all these instru-
ments, unless it is specially applied to real property.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 225. ^

468



Tit.IV,ch.I,art.TIT.l DELIVERY— ESCROW. §§ 1054-1059

§ 1054. DELIVERY NECESSARY. A grant takes ef-
fect, so as to vest the interest intended to be transferred,
only upon its delivery by the grantor.

History: Enacted March 21, 1872.

§ 1055. DATE. A grant duly executed is presumed to
have been delivered at its date.

History: Enacted March 21, 1ST2.

§ 1056. DELIVERY TO GRANTEE IS NECESSAR-
ILY ABSOLUTE. A grant cannot be delivered to the
grantee conditionally. Delivery to him, or to his agent as
such, is necessarily absolute, and the instrument takes ef-
fect thereupon, discharged of any condition on which the
delivery was made.

Hi.story: Enacted March 21, 1872.

§ 1057. DELIVERY IN ESCROW. A grant may be de-
posited by the grantor with a third person, to be deliveret.
on performance of a condition, and, on delivery by the de-
positary, it will take efifect. While in possession of the
third person, and subject to condition, it is called an escrow.

Hi^sto^y: Enacted March 21, 1872.

§ 1058. SURRENDERING OR CANCELING GRANT
DOES NOT RECONVEY. Redelivering a grant of real
property to the grantor, or canceling it, does not operate to
retransfer the title.

History: Enacted Marcli 21, 1872.

§ 1059. CONSTRUCTIVE DELIVERY. Though a
grant be not actually delivere<l into the possession of the
grantee, it is yet to be deemed constructively delivered in the
following cases:

L Where the instrument is, by the agrcemeni of the par-

469



§§1060-1067 CIVIL CODE. [Div.II,Pt.IV.

ties at the time of execution, understood to be delivered, and
under such circumstances that the grantee is entitled to im-
mediate delivery; or,

2. Where it is delivered to a stranger for the benefit of
the grantee, and his assent is shown, or may be presumed.

Hi.story: Enacted March 21, 1S72.

§ 1060. GRATUITOUS GRANTS TAKE EFFECT IM-
MEDIATELY; EXCEPTION [repealed].

HLstory: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 225.



ARTICLE IV.

INTERPRETATION OF GRANTS.



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