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was to do this and no more. When the lessor refused to comply with this demand, inasmuch as there was no duty put upon him to do more, the lessee's only course left was to purchase the material necessary to make the repairs, supply the labor of one man and he could then look to the lessor to pay for the outlay in money. We are clearly of opinion that the lessor could not stand by and see his crops destroyed by his own stock and expect the law to afford him compensation for ensuing damage. His damage and his only damage is to be measured by the material and labor which the lessor agreed to furnish. Plaintiff testified that he did all he could to repair the fences.” But he explained what he did and what he failed to do and hence what he testified to was but a conclusion. The cases cited by appellant to the effect that the lessee was not called upon to do that which the lessor had agreed to do, have no bearing on this case, as we do not think the lessor had agreed to make repairs.

The judgment and order are affirmed.

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sary material and the labor of one man; and, failing in this, and upon demand of the lessee the latter had the right to supply both, make the repairs and charge the cost of the material and of this labor to the lessor; and that this is the measure and extent of the lessee's damages. We know of no statute in this state, and our attention has been called to none, except in relation to "a building intended for occupation of human beings" ($8 1941, 1912. Cir. Code), which, in the absence of an agreement to the contrary, requires the lessor to put the premises "into condition fit for occupation" or "to repair subsequent dilapidations thereof." The common law has always thrown the burden of repairs upon the tenant, as being, in fact, as a bailee of the premises, and bound to restore them substantially as he received them; and the rule is that the tenant cannot compel the landlord to repair, unless he has bound himself by express agreement to that effect. Taylor on Landlord Tenant (Ith Ed.) $ 327. The tenant (annot wake repairs at the expense of the 1:undlord, unless there be a special agreement between them authorizing him to do so. Ile takes the premises for better or for worse, ind annot involve the landlord in expense for repairs without his consent. Id.

Id. $ 328; see Siebert. Blanc, 76 Cal. 173, 18 Pac. 260; ('allalal: T. Longhran, 102 Cal. 176, 36 Pac. S:3.

Thre being no statute changing the commonlar rule in this state, in cases such as this one, and the common-law rule being against appellant's contention, the right of action in appellant must flow from the agreement alone. As there is no implied covenant, raised loy law, that the landlord must make neede reairs, we do not think that the covenant in question should be given a construction not clearly deducible from its language. There is certainly no obligation (ast upon the lessor to make repairs in any of the terms of the covenant. If any inference is to be drawn from the surrounding circumstances, at the time the contract was entered into, it is that as to the then condition of the fences and barns, it was known to the lessee and that condition must be presumed to have been accepted by him as satisfactory and that the repairs mentioned had reference to future requirements. It appeared by plaintiff's testimony that the condition of the fences and barns was the same, when the damage complained of accrued, as when the lease was entered into. If at this latter time immediate and extensive repairs had been contemplated, the parties would naturally have provided in the lease for making them. It seems to us that no argument is required to show that the lessor's obligation, by the terms of the lease. extended no further than to furnish materials for repairs and one man's labor, when called upon to do so; and this seems to have been the lessee's construction of the lease, for hy his testimony it appears that the only demand made by him upon the lessor,

(Cal. App. 8) SMITII . HAMPSHIIRE et al. (Court of Appeal, Third District, California.

June 23, 1900.) 1. WATERS AND WATER COURSES-PRESCRIP. TIVE RIGIIT--IRRIGATION DITCIES.

Where plaintiff constructed an irrigation ditch across defendants' land, plaintiff could acquire a prescriptive right to use and maintain the ditch for the specific purpose of conveying a given quantity of water while defendants at the same time were using a portion of the same ditch to convey a separate distinct quantity of water to a given point where defendants' checks and sile ditch were maintained, plaintiff's prescriptive right being limited to his use, measured by the quantity of his water carried through the ditch. 2. APPEAL - FINDINGS - CONFLICTING EviDENCE-REVIEW.

Where the evidence on a paiticular issue is conflicting, and there is some evidence to support the finding made hy the trial court, it cannot be disturbed on appeal, though the preponderance of the evidence is against it. 3. SAME-BRIEFS-DESIGNATION OF Folios.

Where rulings on the admissibility of evidence are sought to be reviewed on appeal, appellant's brief should direct attention to the folios of the record where the rulings may be found.

[Ed. Vote.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 3093.)

Appeal from Superior Court, Kings County; M. L. Short, Judge.

Action by Thomas Smith against Wyatt Hampshire and others. From a judgment for defendants, plaintiff appeals. Affirmed.

D. L. Phillips and J. F. Pryor, for appellant. Bradley & Farnsworth and W. R. McQuiddy, for respondents.

MCLAUGHLIN, J. This action involves the respective rights of the parties to a water ditch and its use. It was alleged in

the complaint that appellant owned the ditch would accrue. This, the court found to be with the right to its untrammeled use, and the fact, and as respondents have not apthat respondents were hindering and ob pealed, this finding must be taken as importstructing him in the enjoyment of such rights. | ing absolute verity. The measure of appelTitle by adverse use and possession for the lant's right being thus fixed, respondents restatutory period was specially pleaded and tained the right to their land, burdened only damages in the sum of $1,000 were claimed. by the servitude growing out of appellant's The answer contained specific denials of easement acquired by prescription. Respondthese averments, set up the statute of limita ent's hostile, adverse use of the ditch for a tions generally and by special plea of right purpose not in conflict with appellant's use, to use the ditch and checks and side ditches was a limitation of the latter right to the connected therewith, acquired by adverse pos specific measured use apparently recognized. session. The court found that respondents In other words, respondents could concede owned the land over which the ditch runs; and recognize appellant's hostile claim of that plaintiff in 1893 constructed the ditch right to a given extent, but dispute and claim across said land from a general ditch owned in hostility to the full measure of right asby the Lakeside Ditch Company (a corpora serted by the former. A ditch is no more tion), and had used the same adversely to than a right of way for the passage of water, respondents, during the irrigating season, for and it was not essential that the use of the 10 successive years, for the purpose of con ditch, either by appellant or respondents, veying a quantity of water to which he was should be exclusive in order to confer the entitled by reason of his ownership of 200 separate and distinct rights found and awardshares of the capital stock of said ditch com ed by the court. This doctrine was announpany, to and upon his land for irrigating the ced by our Supreme Court in a well-considersame. It was further found that appellant, ed case, where it was said: "Neither was the by long continued adverse use had acquired word 'exclusively' necessary to the answer. the right to enter upon said land and ditch

The ditch might have been used also as a for the purpose of cleaning out and repair waterway by plaintiff and others, and this ing the latter, but that respondents had not would not prevent the use of the several deinter red with this right, nor with the use fendants from ripening into a right by preof the ditch for the purpose of conveying the scription, provided the latter use was in no quantity of water above mentioned. Touch

way interfered with. Several parties could ing the rights of respondents, it was found use and require a permanent and several that for more than 6 years before the com right to use the same for waste water, just mencement of this action, they had used a as several persons could use and acquire a portion of said ditch jointly with appellant | private road." Ibbott v. Pond, 142 Cal. 391, for the purpose of conveying a quantity of 76 Pac, 60, 61. Appellant asserts with earwater, representing 70 shares in the ditch nestness and confidence that his right could company, to a side ditch or open cut, where not ripen if respondents

respondents were hostilely they at all times during the irrigating season interfering with it. This is undoubtedly of each year maintained checks to turn the sound, but respondents, under the findings, said quantity of water into the side ditch did not interfere with appellant's use of the for use in irrigating their land, and that such ditch, or right to keep it in repair, for the use of the ditch, side ditch and checks, was specific purpose of carrying his water over "open, notorious, peaceable, uninterrupted, their land. They allowed it to flow on by the continuous, exclusive, under a claim of right checks and side ditch without interference or and adverse to the plaintiff and the whole diminution, hence the existence of appellant's world."

prescriptive right. Had they turned his waIt is contended that this finding is utterly ter out of, and their own into the ditch, this inconsistent with the finding as to appellant's would have been a hostile interference with prescriptive right, and that the conflict is appellant's right which would have preventso irreconcilable as to necessitate reversal. ed it from ripening. But their acts were This raises the question whether appellant hostile merely to his asserted claim of excould acquire a prescriptive right to use and clusive right to use the ditch. They conmaintain the ditch for the specific purpose of sisted only of going into the ditch appellant conveying a given quantity of water over excavated, to erect and maintain dams durrespondent's land, while respondents at the ing the irrigating season of each year, to same time were using a portion of the same turn their water which they, under hostile ditch for the purpose of conveying a separate claim of right to do so, commingled with his distinct quantity to a given point where the water, through the side ditch, also maintainchecks and side ditch were maintained. We ed under an adverse claim of right. This think that under the authorities in this state limited, adverse, and hostile use conserved this question must be answered in the affirm respondent's rights to so use the ditch and ative. Appellant's ripening prescriptive right maintain its checks and side ditch. While was limited to his use, measured by the respondents could not acquire a prescriptive quantity of his water carried through the right to a right of way over their own land, ditch, and if there was no hostile interference they could destroy appellant's claim of excluwith that use, a permanent prescriptive right | sive right by open, peaceable, notorious, and

87 P.-15

continuous adverse use, and thus establish his compensation for services as such justice, their right (as against his asserted, exclu the finding of the court that the population was sive claim) to use the ditch themselves for

a certain amount will, in the absence of any

thing to the contrary, be presumed to have been a limited purpose and commingle their water

based on such census, it not being impossible with his in so doing. The findings are, there that it could be so determined. fore, not conflicting.

Appeal from Superior Court, Ventura CounIt is said that the evidence is insufficient

ty; J. W. Taggart, Judge. to sustain the finding in respondent's favor

Application by J. W. Guiberson for writ above mentioned. It may be said that the

of mandate to J. L. Argabrite, auditor of preponderance of evidence is against the find

Ventura County. Judgment for defendant, ing, but as the evidence is conflicting, and

plaintiff appeals. Reversed with directions. there is some evidence to support the finding, it cannot be disturbed. “In support of

Thos. 0. Toland and M. J. Rogers, for apthe decision of the court below we must con

pellant. Edward M. Selby, for respondent. strue the testimony as favorably as possible for the defendants." Carteri v. Roberts, 140

ALLEN, J. Application for writ of manCal. 165, 73 Pac. 818, 819. While appellant

date. Judgment for defendant. Motion for undoubtedly ploughed through the sacks used

new trial denied. Plaintiff appeals from as checks whenever he cleaned the ditch, such judgment and order. there is no evidence to show that this was

Plaintiff makes this application for a writ done at any time during the irrigating season

of mandate to compel the auditor of Venwhen the respondents were using the same.

tura county to issue his warrant upon the Indeed, appellant recognized their right to

treasury of said county for $120 for plainmaintain the checks and side ditch by sug

tiff's salary as justice of the peace of Camgesting a change of method in doing so. The

ulos township in criminal cases, for the six respondents erected certain fences along and

months beginning with April and ending across the ditch and it is claimed by appels with September, 1904. The auditor refused lant that this constituted an unwarranted in- | to issue such warrant upon the ground that terference with his right. The court found

Camulos township did not have a populaagainst him on this point and we are not only

tion of 500, according to the federal census convinced that the evidence sustains the find of 1900, and upon the further ground that ing, but feel certain that appellant gained a

such justice has not qualified as such by distinct advantage in this regard by having filing an official bond in the form required the burden of maintaining the ditch above by law, and that he did not perform the the cross-fence saddled on the respondents.

duties of such office. Upon the hearing of The other findings assailed are fully support the case the court found that Camulos towned by the evidence.

hip, since September 6, 1901, has been a Counsel for appellant in their briefs failed duly organized township with a population to direct attention to the folios where par of more than 500 and less than 1,000; that ticular rulings on the admissibility of evi said justice did not file his bond in the form dence might be found, but we have neverthe required by law, and did not enter upon less traced and examined each ruling assail- the discharge of the duties of his office, or ed, and found no prejudicial error.

continue in the discharge thereof, for the The judgment is affirmed.

time mentioned in the application, and that

no salary was due him. We concur: CHIPMAX, P. J.; BUCK The principal question argued in the origiLES, J.

nal briefs was in relation to the sufficiency of the bond. The record shows a bond in

due form of law, indorsed thereon an affi(3 Cal. App. 768)

davit of justification by the sureties to the GUIBERSON v. ARGABRITE, Auditor.

effect that the signers thereof were each (Court of Appeal, Second District, California. property holders and residents within VenJune 22, 1906.)

tura county. The bond also contained an 1. JUSTICES OF TIIE PEACE APPROVAL OF indorsed approval by the judge of the supeBOND-PRESUMPTION. The approval of the bond of a justice of

rior court of the county, together with an the peace by the judge of the superior court indorsement of its filing and record in the being the exercise of a judicial function, it will recorder's office upon the date of its apbe presumed, when such a bond approved by proval. This bond the court refused to achim is offered in evidence to show that the justice qualified, that when presented to the

cept in evidence, because it did not appear judge it was, as required by statute, accompa that the sureties had justified, for the reanied by an affidavit showing the sureties were son that no affidavit was presented showing freeholders and householders, so as to warrant

that the sureties were freeholders or househis approval, though no such affidavit is shown; it not being required to be indorsed on the bond. holders, as the statute requires. The refusal or to be recorded.

to receive such bond in evidence was error, 2. APPEAL-PRESUMPTION.

and the finding that no bond was filed has Though the township in which plaintiff was justice of the peace was formed after the taking

no support in the record. The statute reof the census of 1900, by which only can its popu

quires that a bond presented to the superior lation be determined for the purpose of fixing court for approval shall be accompanied by

an affidavit showing that the sureties are ships which were existing at the date of freeholders and householders. The affidavit the taking of the census, and the court was is no part of the bond, is not required to able to determine the population from such be indorsed thereon, nor to be recorded. The aggregate population. In addition to all of statute, however, directs the character of this, there is no specification of error in reevidence which should be received by the lation to such finding, and, for the purposes court, and that if should be in the nature of this decision, such population must be of an affidavit presented to him. The ap- accepted. The case is then presented of an proval by the judge was in the exercise of official discharging duties in a township bav, a judicial function (Miller v. Board, 25 Cal. ing a classification, with a fixed salary, for 97), and it will be presumed that he had which services he has presented his claim. before him competent evidence warranting It was the duty of the court to have issued the approval, and that the evidence was of the mandate prayed for. the character directed by the statute. We The judgment and order are reversed, and may not say that the affidavit indorsed was the cause remanded, with directions to the the only evidence in that regard, and that lower court to issue the writ. no affidavit accompanied the bond containing the things required by law. The ap We concur: GRAY, P. J.; SMITH, J. proval of the judge was sufficient to entitle the instrument to be recorded and to be received in evidence, the same being in all

(4 Cal. App. 120) other respects in due form of law. There

PEOPLE . HEMPLE. is no evidence in support of the finding that (Court of Appeal, Third District, California. the plaintiff did not enter upon and con

July 18, 1906.) tinue in the discharge of the duties of the 1. EMREZZLEVENT-ACTS OF AGENT-ELEMENTS office; on the contrary, the undisputed evi

OF OFFENSE.

Under Pen. Code, $ 508, defining embezzledence is that he did perform such duties.

ment by an agent or servant, it is necessary to In a supplemental brief, it is insisted, upon prove that the accused was an agent, that the the authority of Chinn v. Gunn (Cal. Sup.) property came into his hands as the property 84 Pac. 669, that Camulos township, having

of his employer, that he received it in the course

of his employment, and that he appropriated it been formed after the census of 1900, con to his own use with intent to steal it. tains no population which may be ascer [Ed. Note.-For cases in point, see vol. 18, tained by such census, and, therefore, is

Cent. Dig. Embezzlement, $ 13.] a township within the class and to which 2. CRIMINAL LAW-BEST AND SECONDARY Ev. section 187, subsec. 13 of the Act of 1901, does

IDENCE-EMBEZZLEMENT.

In a prosecution for embezzlement by an not apply. See St. 1901, p. 755, c. 234. This

agent of a theater company of money received section provides that townships in the class on the sale of tickets, where the only method of counties to which Ventura belongs are

of determining how many tickets had been sold classified by the population as shown by the

was by referring to the racks containing the

tickets for sale, or to the stubs of the tickets federal census of 1900, and that townships received at the door, testimony of another agent having a population of over 500 and less

who followed accused in selling tickets, from a

memorandum as to what the stubs and unsold than 1,000 shall be of the fourth class, and

tickets showed, was inadmissible, the original townships of less than 500 shall be of the evidence having been immediately destroyed. fifth class; that the salary of a justice in 3. SAME-HEARSAY. criminal matters in townships of the fourth Testimony from a memorandum as to the class shall be $20, and of the fifth class $10

contents of a receipt from a theatrical company

for its proportion of the receipts for a certain per month. It is held by the Supreme Court day, admitted in a prosecution for embezzlement, in Chinn v. Gunn, supra, that this popula to show the total receipts by the theater comtion can only be determined by the census of

pany for the day, was hearsay. 1900. The finding of the court that the

4. EMBEZZLEMENT-EVIDENCE-SUFFICIENCY.

Evidence in a prosecution for embezzle. population is of a fixed amount, in the ab

ment held insufficient to show that the defendsence of anything to the contrary, will be ant received the amount alleged to have been assumed to have been, based upon such

embezzled. census. The statement on motion for a new

5. SAME-QUESTION FOR JURY.

Evidence, in a prosecution for embezzletrial shows that such evidence as was per ment, held to present a question for the jury as tinent to the specifications of error is all to whether defendant fled to escape arrest. that such statement purports to contain.

6. CRIMINAL LAW-INSTRUCTIONS-MODIFICAThere is no specification in relation to the

TION OF REQUEST.

Where the court was requested to instruct finding that the township has a fixed popu that to warrant a conviction the prosecution lation. We do not know what evidence must prove "so clearly and conclusively to your was before the court in its support. That

ininds," etc., or "so clearly and conclusively that

there is no reasonable theory upon which he can the township was formed after the census

be innocent when all the evidence in the case of 1900 was taken does not of necessity dem is considered together," there was no error in onstrate that the population within the

striking out the phrases quoted and inserting in new township may not be determined from place of each the words "beyond all reasonable

doubt.” such census. It may be true that Camulos

[Ed. Note. For cases in point, see vol. 14, township is composed of two or more town Cent. Dig. Criminal Law, $$ 1877, 1878.]

7. EMBEZZLEMENT_INSTRUCTIONS.

In a prosecution for embezzlement, where there was evidence that other persons had equal opportunities with defendant to have taken the inoney, it was error to refuse an instruction that the defendant was the only person on trial, and that if the evidence points as clearly to some other person as the one who committed the crime, as to the defendant, or if the jury entertain a reasonable doubt as to whether the defendant or some other person is the guilty party, the defendant should be acquitted.

Appeal from Superior Court, San Joaquin County: W. B. Nutter, Judge.

George Hemple was convicted of embezzlement. From the judgment, and from an order denying a new trial, he appeals. Reversed.

T. J. Butts, for appellant. U. S. Webb, Atty. Gen., for the People.

BUCKLES, J. The defendant was charged with embezzling $112.50, convicted, moved for a new trial, which was denied, and was then sentenced to five years imprisonment. He appeals from the order denying a new trial and from the judgment.

The charging part of the information is as follows: "The said George Ilemple was agent and servant to one c. P. Ilall, and, being agent and servant as aforesaid, by virtue of his said employment as such agent and servant, there came into the care and control of the said George Hemple, for and on account of the said C. P. Hall, the sum of one hundred forty-two and fifty one-hundredths ($142.50) dollars, lawful money of the United States, and the said George Hemple aforesaid, so received and took into his control and care the said money for and on account of the said C. P. Hall, and afterwards, to wit, on the 5th day of December, 1902, at and in said county and state, the said George Hemple willfully, unlawfully, feloniously, and fraudulently did embezzle, convert, and appropriate the same to his own use, and not in the due and lawful execution of the said trust of him, the said George Hemple.

The information is assailed on the ground that it is not charged therein that the defendant was the agent of Hall at the time of the alleged conversion.

It is charged that defendant received the money as the agent and servant of Hall and that he thereafter unlawfully, willfully, feloniously, and fraudulently did embezzle, convert, and appropriate the same to his own use and not to the due and lawful execution of the said trust. We think this language sufficiently charges the continuance of the trust up to and including the time of the alleged conversion. The allegation is that he received the money on December 5th, and converted it the same day. That he was in the possession of it, if at all, as the agent and servant of Hall, there could be no doubt. He is distinctly charged with having received the money for and on account of Hall and of having feloniously embezzled, and converted it to his own use, and not in the due

and lawful execution of his trust. The information was sufficient. People v. Johnson, 71 Cal. 381, 12 Pac. 261; l'eople v. Gordon, 133 Cal. 328, 65 Pac. 746, 85 Am. St. Rep. 174; People v. McLean, 13. Cal. 306, 67 Pac. 770; People v. Goodrich, 112 Cal. 216, 75 Pac. 796.

The facts are as follows: The defendant was in the employ of C. P. Hall in the theatrical business. His duties under such employment were to advertise coming attractions, prepare tickets for sale of seats, sell them, receive the money therefor, safely keep the same, and turn it over to Hall or his agent Henry on the night of the performance. On December 5, 1902, the "Florodora Company" gave :! performance at the Yosemite Theater in Stockton. About a week prior to that time Henry had given

given defendant

defendant instructions about the sale of tickets and the prices to be charged for seats in different parts of the theater, and the defendant began the sale of these tickets at the box office of the theater about the 1st day of December, and continued selling up to shortly after noon on the 5th, when Henry arrived at the box office and took charge. There had been some controversy about the salary defendant was to have. He had been at work at this employment for at least two months and was demanding $75 per month, but had been paid only $50 per month for the two months he had worked up to December 1st. When he learned from Henry that Hall would not pay $75 per month, he left the box office, and never returned. He says he informed Henry as he left that he would work no more at the wages paid and did not care for that kind of work any more and that he was through, and he did quit and left Mr. Henry in charge at the box office. The defendant says he knew the different prices at which he was to sell the tickets and he did sell them at such pricesbut no price is mentioned-and put the money for all the tickets he sold in the till, and, so far as he knew, it was all there when he left on the 5th, and that he never appropriated any of it. The testimony of defendant further shows that on the 5th of December, while the sale of tickets was on, he was at the same time engaged in a room across the hall from the box office in arranging the advertising, etc., and when there was a call for tickets he would go across to the box office, sell the tickets and then return to his work in the room across the hall. There were numerous other persons about there, but no evidence that any other person than defendant and Henry had access to the money drawer. There was a lock on the door to the box office, but no evidence tending to show whether it was kept locked when defendant was out. or not. When defendant did not return, Henry says he made a casual count of the money in the drawer, examined the tickets, and concluded the money was not all there. There was about $600 there. Henry continued the sale of tickets, and that night when the show was over he says he

*."

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