FINDINGS INSUFFICIENCY OF EVIDENCE-SPECIFICATIONS-REVIEW ON APPEAL.-No question as to the insufficiency of the evidence to justify a finding will be considered on appeal, when there is no specification in the transcript which raises the question. INJUNCTION-DESTRUCTION

OF LEVEE-FINDINGS OWNERSHIP.—A judgment enjoining a defendant from destroying a levee alleged by the plaintiff to have been constructed on land owned by him, to protect another tract of his land from overflow, is sustained, so far as the question of his ownership is concerned, by a finding that "said levee is upon the line dividing the lands of plaintiff and defendant, and is built partly upon the lands of each."

APPEAL from a judgment of the Superior Court of Sacramento County.

The facts are stated in the opinion of the court.

Grove L. Johnson, for Appellant.

A. P. Catlin, for Respondent.

WORKS, J.-This is a proceeding by the respondent to enjoin the appellant from destroying a levee alleged to have been constructed by the respondent on a certain tract of land owned by her to protect a certain other tract of her land from overflow. There was a trial by the court, findings for plaintiff, and judgment accordingly. The appellant moved the court below for a nonsuit, which was denied. He also moved for a new trial, which was also denied, and he appeals. The motion for a nonsuit was "on the grounds of plaintiff's failure to prove any of the material allegations of the complaint, and a failure to prove any damage done to the levee, or any notice to the defendant of the claim of the plaintiff to the levee prior to his purchase." The evidence tended to show that one Taylor was the owner of property which he sold to the appellant, and that at the time of such sale he called to the attention of the appellant the fact that the respondent had with his, Taylor's, consent constructed the levee in question on the line of and partly upon the lands then owned by Taylor, and that the appellant pur

chased his lands with full knowledge of the fact that such levee was constructed by the respondent and owned by her. There is an entire absence of any evidence in the record that the respondent was the owner of the lands upon which the levee was constructed, or of any other lands, as alleged in her complaint, and if the record contains all the evidence, and the motion for a nonsuit had pointed out this want of evidence as a ground for the motion, it should have been sustained. But the motion was entirely too general to raise any such question. It was not sufficient to move on the ground that the plaintiff had failed to prove any of the material allegations of the complaint. The particulars in which it was claimed the evidence was insufficient should have been specifically pointed out. (Poehlmann v. Kennedy, 48 Cal. 201; Coffey v. Greenfield, 62 Cal. 602.) As to the specific objections pointed out in the motion, there was sufficient evidence on the part of the plaintiff, and the nonsuit was for that reason properly denied.

It is also contended by the appellant that the evidence does not show that the plaintiff was the owner of the lands described in her complaint. It is not clear whether it is intended to claim that the findings are not sustained. by the evidence in this respect or not, but if so, there is no specification in the transcript which raises any such question.

It is further contended that the findings of the court are insufficient to sustain the judgment, for the reason that there is no finding that the respondent was the owner of the real estate. But the court does find that "said levee is upon the line dividing the lands of plaintiff and defendant, and is built partly upon the lands of each." This, we think, is a sufficient finding that the levee was constructed upon land owned by the respondent, and is sufficient in that respect to uphold the judg

ment.

As to the point made that the evidence is not sufficient

to show that the appellant in any way injured the levee, we think there was evidence to sustain the finding of the court, and the same may be said with reference to the other objections made to the findings.

We find no available error in the record.

Judgment and order affirmed.

Fox, J., SHARPSTEIN, J., BEATTY, C. J., and PATERSON, J., concurred.

MCFARLAND, J., concurred in the judgment.

[No. 12917. In Bank.-October 3, 1889.]

J. M. MARTIN, APPELLANT, v. JOHN L. HUDSON, RESPONDENT.

VENDOR AND VENDEE WITHDRAWAL OF OFFER TO SELL-EVIDENCEFINDING. A finding that an offer by the defendant to sell certain land to the plaintiff had been withdrawn before its acceptance by the latter, held, supported by the evidence.

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

The facts are stated in the opinion.

Church & Cory, for Appellant.

Wharton & Short, and D. S. Terry, for Respondent.

BELCHER, C. C.-This action was brought to enforce the specific performance of an alleged contract to sell and convey certain real property. The court below gave judg ment for the defendant, and the plaintiff appeals.

The record shows that on the ninth day of September, 1887, the defendant executed and delivered to plaintiff a paper by which he agreed to sell and convey the property in question for the sum of five thousand dollars, one half payable on delivery of deed, and the balance one year

thereafter, with interest at the rate of eight per cent per annum, the "contract" to be "valid till November 1, 1887, and thereafter till revoked in writing."

The court found that the paper was executed as above stated; that no consideration whatever ever passed from the plaintiff to the defendant therefor, and that it was a mere proposal or offer to sell. It then further found, "that thereafter, and on or about the fifteenth day of September, 1887, and before the plaintiff had in any way accepted said offer, or agreed to accept the same, the defendant went to the plaintiff and requested the return of said offer, and asked to be released therefrom, and verbally withdrew the same."

It is claimed by counsel for appellant that this finding was not justified by the evidence, but in effect admitted that if it was justified, the judgment should be affirmed.

Counsel say in their reply brief: "There is no question, and no contention to the contrary has been made, that a proposal to sell land made without consideration may be withdrawn before acceptance. Had the offer made by defendant to plaintiff to sell him the land been withdrawn before acceptance, that would have been an end of the matter, and plaintiff have had no standing in court. Here then is the question, and the only question, to be considered in this case: Was said offer accepted before rescission or the attempted rescission ?" We think there was evidence tending to support the finding. The plaintiff was a witness and on cross-examination testified: "Agreement with Hudson was made September 9th at my office in Fresno; next saw Mr. Hudson four or five days thereafter; came and asked me to release him." Defendant was also a witness, and testified that after the paper was made he next saw the plaintiff at his office on the 15th of September, and said: "Mr. Martin, I would like you to give up that contract." No point is or could be made that a verbal withdrawal by respondent of his offer to sell, if made before accept

ance, was not sufficient; but the contention of appellant is, that there was no verbal or other withdrawal or attempted withdrawal by him until the seventeenth day of September, when he served a written notice of rescission, and that prior to that time appellant had verbally and unqualifiedly accepted the offer. But in view of the testimony above quoted, we think this contention cannot be sustained.

As we cannot say that the finding was not justified by the evidence, it follows, in our opinion, that the judg ment and order appealed from should be affirmed.

HAYNE, C., and FOOTE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order appealed from are af firmed.

Rehearing denied.

[No. 13107. In Bank.-October 3, 1889.]

WILLIAM G. RICHARDS ET AL., RESPONDENTS, v. JOHN DOWER ET AL., APPELLANTS.

TOWN-SITE PATENT--RESERVATION OF GOLD MINE.-To constitute a reservation of a gold mine from the operation of a town-site patent, under the laws of Congress, there must be a natural deposit of rock or earth containing a sufficient quantity of gold to admit of profitable working, and the land must be known to have been more valuable for mineral than for agricultural purposes at the date of the townsite patent, or before the occupation or improvement of the lots for residences or business under the town-site title. ID. PLEADING RESERVATION-MINERAL

LANDS-CONCLUSIONS

OF

LAW, When an answer alleges as matter of fact that a ledge claimed by defendants, which crosses a town lot claimed by plaintiff, was known to be a gold-bearing ledge, and was held, possessed, worked, and mined as such long prior and subsequent to the townsite patent, further allegations, to the effect that the mine was reserved from the patent, and that it is part of the public mineral lands of the United States, are allegations of mere conclusions of law.