and marking the boundaries of the location. When the location is thus marked, all that the notice and record were ever intended or expected to accomplish is effected in a manner far more satisfactory and complete." We quote the above remarks, not to the point that a mining custom requiring the posting of a notice in a particular way can be wholly disregarded (which is not necessary here to be decided), but as showing additional reasons why such a custom, when invoked years after all other acts of location have been done, should receive a liberal and not a strict construction. Our conclusion is, that whatever evidence may be presented on another trial under the facts as shown in the findings before us, the posting of defendant's original notice should be held to have been a substantial and sufficient compliance with the said

custom.

The judgment is reversed, and the cause remanded for a new trial.

JURY TRIAL, RIGHT OF. - All issues of fact must be tried by a jury, if either party desires it: Scott v. Nichols, 27 Miss. 503; 61 Am. Dec. 503.

MINING LAW-NOTICE OF LOCATION - LIBERAL CONSTRUCTION. —Notices of location are to be liberally construed: Carter v. Bacigalupi, 83 Cal. 187.

HAWTHORNE V. SIEGEL.

[88 CALIFORNIA. 159.]

MEASURE OF DAMAGES. — IF THE LESSEES OF PREMISES have acquired a hot-water privilege for use in connection with the business carried on by them, the loss of such privilege is a proper subject for compensation in an action by them against their lessor for trespass committed by him in breaking into and forcibly altering the leased premises so as to unfit them for their business. MEASURE OF DAMAGES. IN AN ACTION BY LESSEES AGAINST THEIR LESSOR for his wrongful act in entering upon the leased premises and making alterations therein, no error against him is committed by instructing the jury that the damages recoverable by plaintiffs for any loss suffered by them which rendered their leasehold interest wholly or in part worthless, occasioned by the wrongful acts of the defendant, must be measured by the whole duration of such lease under the terms thereof, and the length of time which it had been enjoyed by them to the time of the reception of the injury, and by the value of such advantages as accrued to them under the lease, which grew directly out of their interest therein, not including anything which resulted from the loss of hotwater rights or established trade or business. MEASURE OF DAMAGES. DAMAGES WHICH ACCRUE SUBSEQUENTLY to a tort, and of which it is the primary cause, are not separate causes of action, but are parts of the tort itself, for which a cause of action is given.

MEASURE OF DAMAGES. EXPENSES OF REMOVAL TO ANOTHER PLACE OF BUSINESS, and damages resulting from being deprived of the use of improvements abandoned by them, are proper elements of damages in an action by lessees against their lessor for his wrongful act, whereby they were compelled to abandon premises leased by them, and to remove to another place of business.

PRACTICE - HARMLESS ERROR. - Where a witness was asked what a leasehold was worth to him, an allowance of such question is a harmless error, if the answer of the witness shows that the only value to which he testifies is the market value.

MEASURE OF DAMAGES-LOSS OF PROFITS. IF AN ESTABLISHED BUSINESS is wrongfully injured or destroyed, its owner can recover damages sustained thereby, and in an action for their recovery evidence of the profits he was actually making is admissible. Hence in an action against a lessor by his lessees for depriving them of the benefit of their lease, they may show the amount of business done by them before and after his alleged wrongful acts.

Stephen M. White, for the appellants.

C. F. Cronin, Baker and Long, J. O. Koepfli, and Will D. Gould, for the respondents.

FOOTE, C. This action was brought to recover damages for trespass alleged to have been committed by the defendants in "breaking and entering " upon the premises held, used, and possessed by the plaintiffs under a lease, and "forcibly and unlawfully altering and changing the construction" of the premises, "by lowering a portion of the ceiling" thereof, “and by closing up and obstructing the windows and gratings. thereof through which plaintiffs obtained light and air for their said premises."

It was further alleged that these acts of the defendants rendered the premises "totally unfit and useless" for the purposes of their business, which was that of carrying on a bar. ber-shop and bath-room; that they were thereby compelled to vacate the premises, and did vacate them under this compulsion on the third day of September, 1888, the lease not expiring until the 26th of April, 1891.

The damages claimed were from the loss of the established trade and business of the plaintiffs; from that occasioned by having to abandon a portion of the permanent improvements which they had made on the leased premises; from that resulting from the plaintiffs being compelled to abandon and lose the benefit of their leasehold interest; from that which they suffered by being deprived of the benefit of their agreement with a party who allowed them a hot-water privilege for the use of their barber-shop and bath-room, and by reason of

expenses entailed on them in their enforced removal from the premises.

The plaintiffs obtained judgment for five hundred dollars, — a very much less sum than they claimed. From that, and an order denying a new trial, this appeal is taken.

The evidence certainly tended to show that the plaintiffs occupied and used the premises as they claimed, and that the trespass was committed by the duly authorized agent of the defendant Siegel.

The main argument of the defendant seems to be on the alleged erroneous rulings of the court as to the measure of damages recoverable in the action, in the admission of evidence, and in the instructions upon the matter which it gave, refused, or modified.

In this connection the defendant urges that no damages could be recovered by the plaintiffs for the loss of the hot-water privileges, which they derived from an agreement with E. Dunham, mentioned in the eighth paragraph of the complaint.

If, as we think, the evidence tended to show that the plaintiffs were compelled to abandon their place of business by the trespass of the defendant, then they were entitled to recover whatever "amount will compensate for all the detriment proximately caused thereby, whether it could have been antici pated or not": Civ. Code, sec. 3333.

If the evidence tended to show any detriment suffered by the plaintiffs in losing this hot-water privilege, and the loss thereof was próximately caused by the trespass complained of, the plaintiffs were entitled to be compensated therefor, and it was for the jury, under all the evidence, to say if they were entitled to any compensation, and if so, how much.

The evidence did show that the plaintiffs had such a privilege, and that they paid a certain amount of money therefor, and that it was of beneficial use to them. There is also evidence which tends to show that the cause of their leaving the premises was, that the trespass complained of made their place of business unfit for the purposes for which they had leased, occupied, and possessed it. The trespass caused them to abandon the water privilege; the loss of the water privilege was one of the injuries resulting from this abandonment. This injury, then, was proximately caused by the trespass, and the plaintiffs were to be compensated therefor. We perceive no error in the eighth instruction given, nor in the evidence offered and admitted in support of the demand.

It is further urged, in behalf of the appellants' contention, that the instruction given by the court is at variance with section 3333 of the Civil Code, and misleading, in that it permits and directs the jury to take into consideration anything, however remote, which might appear to them to indicate "loss or harm." The instruction reads as follows:

"9. The jury are instructed that if they believe from the evidence that the plaintiffs had a leasehold interest in the premises in question, and that by reason of the wrongful acts of the defendant, said leasehold interest was rendered wholly or in part worthless to the plaintiffs, or that they were compelled to abandon the same, then the plaintiffs are entitled to such an amount as will compensate them for all loss or harm suffered thereby, taking into consideration the length of time of said lease and the length of time it had been enjoyed by the plaintiffs, and the value of such advantages as they may be satisfied by the evidence were a part of or directly grew out of said leasehold interest, but not including in this item anything for loss of hot-water rights or established trade and business."

Fairly considered, this instruction announces to the jury that the damages recoverable by the plaintiffs for any loss suffered by them which rendered their leasehold interest wholly or in part worthless, occasioned by the wrongful acts of the defendant, must be measured by the whole duration of said lease under the terms thereof, and the length of time it had been enjoyed by them up to the time of the reception of the injury, and by the value of such advantages as accrued to them under the lease, which grew directly out of their interest therein, but not to include anything which resulted from the loss of hotwater rights or established trade or business, and that these damages must be in such an amount as will compensate them for any such loss.

This did not, in our own judgment, direct the jury to give damages in their nature remote or speculative, but was confined to a verdict for such detriment only as was proximately caused by the wrongful acts of the defendant as affecting loss from the injury done alone to the leasehold interest held by the plaintiffs. And although, perhaps, the instruction is not so perspicuous and clear as it might have been, we see nothing in it misleading, or conflicting with other instructions, which last most clearly kept before the jury the idea that they were to give no damages except such as were the proximate result of

the injury done; and this will appear by a glance at the other instructions given.

It is further claimed that the court erred in instructing the jury that in estimating the damages done the plaintiffs they might consider the evidence concerning the expenses of the enforced removal of the plaintiffs from the premises to another place of business, and that regarding any damage which might result from the deprival of the use of improvements abandoned by them.

The defendant contends that these elements of damage were not recoverable. The argument in this connection appears to be, that the plaintiffs could only recover for the benefits which they might have had if the defendants had permitted them to remain at their former place of business untrespassed upon. But the plaintiffs were not, according to the tendency of their evidence, permitted to remain unmolested, but were driven away by the wrongful acts of the defendants; hence the former were entitled to recover whatever their loss might be, of which the defendant's wrongful acts were the efficient

cause.

"The proximate cause is the efficient cause; the one that necessarily sets the other causes in operation": Ætna Ins. Co. v. Boon, 95 U. S. 130.

"That which is the actual cause of the loss, whether operating directly, or by putting intervening agencies, the operation of which could not be reasonably avoided, in motion, by which the loss is produced, is the cause to which such loss should be attributed": Brady v. Northwestern Ins. Co., 11 Mich. 425.

Here the evidence on behalf of the plaintiffs tended to show that the trespass of the defendant, and his acts in accomplishing it, resulted in the plaintiffs having to leave their place of business, give up their leasehold interest, go to expense in moving their appurtenances, etc., lose the privilege which they had of hot water for baths and barber-shop, and in their having to go to another place of business less favorable or profitable, which entailed loss in their established trade and business, and having to lose the use of abandoned permanent improvements.

The cause which set all the rest in motion was the trespass. The operation of the subsequent agencies of loss was the result of this wrongful injury. Hence they proximately resulted from that trespass. To the first cause, primarily, all the dam.