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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" (§§ 1941, 1942. Civ. 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 (9th Ed.) § 327. The tenant cannot make repairs at the expense of the landlord. unless there be a special agreement between them authorizing him to do so. takes the premises for better or for worse, and cannot involve the landlord in expense for repairs without his consent. Id. § 328; see Sieber v. Blanc, 76 Cal. 173, 18 Pac. 260; Callahan v. Longhran, 102 Cal. 476, 36 Pac. $35.

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There being no statute changing the common-law 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 by law, that the landlord must make needed repairs, 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 cast 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 by his testimony it appears that the only demand made by him upon the lessor,

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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SMITII v. HAMPSHIRE et al. (Court of Appeal, Third District, California. June 23, 1906.)

1. WATERS AND WATER COURSES-PRESCRIPTIVE RIGHT-IRRIGATION DITCHES.

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 side 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 particular issue is conflicting, and there is some evidence to support the finding made by 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. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3095.]

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 with the right to its untrammeled use, and that respondents were hindering and obstructing him in the enjoyment of such rights. Title by adverse use and possession for the statutory period was specially pleaded and damages in the sum of $1,000 were claimed. The answer contained specific denials of these averments, set up the statute of limitations generally and by special plea of right to use the ditch and checks and side ditches connected therewith, acquired by adverse possession. The court found that respondents owned the land over which the ditch runs; that plaintiff in 1893 constructed the ditch across said land from a general ditch owned by the Lakeside Ditch Company (a corporation), and had used the same adversely to respondents, during the irrigating season, for 10 successive years, for the purpose of conveying a quantity of water to which he was entitled by reason of his ownership of 200 shares of the capital stock of said ditch company, to and upon his land for irrigating the same. It was further found that appellant, by long continued adverse use had acquired the right to enter upon said land and ditch for the purpose of cleaning out and repairing the latter, but that respondents had not interfered with this right, nor with the use of the ditch for the purpose of conveying the quantity of water above mentioned. Touching the rights of respondents, it was found that for more than 6 years before the commencement of this action, they had used a portion of said ditch jointly with appellant for the purpose of conveying a quantity of water, representing 70 shares in the ditch company, to a side ditch or open cut, where they at all times during the irrigating season of each year maintained checks to turn the said quantity of water into the side ditch for use in irrigating their land, and that such use of the ditch, side ditch and checks, was "open, notorious, peaceable, uninterrupted, continuous, exclusive, under a claim of right and adverse to the plaintiff and the whole world."

It is contended that this finding is utterly inconsistent with the finding as to appellant's prescriptive right, and that the conflict is so irreconcilable as to necessitate reversal. This raises the question whether appellant could acquire a prescriptive right to use and maintain the ditch for the specific purpose of conveying a given quantity of water over respondent's land, while respondents at the same time were using a portion of the same ditch for the purpose of conveying a separate distinct quantity to a given point where the checks and side ditch were maintained. We think that under the authorities in this state this question must be answered in the affirmative. Appellant's ripening prescriptive right was limited to his use, measured by the quantity of his water carried through the ditch, and if there was no hostile interference with that use, a permanent prescriptive right 87 P.-15

would accrue. This, the court found to be the fact, and as respondents have not appealed, this finding must be taken as importing absolute verity. The measure of appellant's right being thus fixed, respondents retained the right to their land, burdened only by the servitude growing out of appellant's easement acquired by prescription. Respondent's hostile, adverse use of the ditch for a purpose not in conflict with appellant's use, was a limitation of the latter right to the specific measured use apparently recognized. In other words, respondents could concede and recognize appellant's hostile claim of right to a given extent, but dispute and claim in hostility to the full measure of right asserted by the former. A ditch is no more than a right of way for the passage of water, and it was not essential that the use of the ditch, either by appellant or respondents, should be exclusive in order to confer the separate and distinct rights found and awarded by the court. This doctrine was announced by our Supreme Court in a well-considered case, where it was said: "Neither was the word 'exclusively' necessary to the answer. The ditch might have been used also as a waterway by plaintiff and others, and this would not prevent the use of the several defendants from ripening into a right by prescription, provided the latter use was in no way interfered with. Several parties could use and require a permanent and several right to use the same for waste water, just as several persons could use and acquire a private road." Abbott v. Pond, 142 Cal. 396, 76 Pac. 60, 61. Appellant asserts with earnestness and confidence that his right could not ripen if respondents respondents were hostilely interfering with it. This is undoubtedly sound, but respondents, under the findings, did not interfere with appellant's use of the ditch, or right to keep it in repair, for the specific purpose of carrying his water over their land. They allowed it to flow on by the checks and side ditch without interference or diminution, hence the existence of appellant's prescriptive right. Had they turned his water out of, and their own into the ditch, this would have been a hostile interference with appellant's right which would have prevented it from ripening. But their acts were hostile merely to his asserted claim of exclusive right to use the ditch. They consisted only of going into the ditch appellant excavated, to erect and maintain dams during the irrigating season of each year, to turn their water which they, under hostile claim of right to do so, commingled with his water, through the side ditch, also maintained under an adverse claim of right. This limited, adverse, and hostile use conserved respondent's rights to so use the ditch and maintain its checks and side ditch. While respondents could not acquire a prescriptive right to a right of way over their own land, they could destroy appellant's claim of exclusive right by open, peaceable, notorious, and

continuous adverse use, and thus establish their right (as against his asserted, exclusive claim) to use the ditch themselves for a limited purpose and commingle their water with his in so doing. The findings are, therefore, not conflicting.

It is said that the evidence is insufficient to sustain the finding in respondent's favor above mentioned. It may be said that the preponderance of evidence is against the finding, but as the evidence is conflicting, and there is some evidence to support the finding, it cannot be disturbed. "In support of the decision of the court below we must construe the testimony as favorably as possible for the defendants." Carteri v. Roberts, 140 Cal. 165, 73 Pac. 818, 819. While appellant undoubtedly ploughed through the sacks used as checks whenever he cleaned the ditch, there is no evidence to show that this was done at any time during the irrigating season when the respondents were using the same. Indeed, appellant recognized their right to maintain the checks and side ditch by suggesting a change of method in doing so. The respondents erected certain fences along and across the ditch and it is claimed by appellant that this constituted an unwarranted interference with his right. The court found against him on this point and we are not only convinced that the evidence sustains the finding, but feel certain that appellant gained a distinct advantage in this regard by having the burden of maintaining the ditch above the cross-fence saddled on the respondents. The other findings assailed are fully supported by the evidence.

Counsel for appellant in their briefs failed to direct attention to the folios where particular rulings on the admissibility of evidence might be found, but we have nevertheless traced and examined each ruling assailed, and found no prejudicial error. The judgment is affirmed.

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1. JUSTICES OF THE PEACE APPROVAL OF BOND PRESUMPTION.

The approval of the bond of a justice of the peace by the judge of the superior court being the exercise of a judicial function, it will be presumed, when such a bond approved by him is offered in evidence to show that the justice qualified, that when presented to the judge it was, as required by statute, accompanied by an affidavit showing the sureties were freeholders and householders, so as to warrant his approval, though no such affidavit is shown; it not being required to be indorsed on the bond, or to be recorded.

2. APPEAL-PRESUMPTION.

Though the township in which plaintiff was justice of the peace was formed after the taking of the census of 1900, by which only can its population be determined for the purpose of fixing

his compensation for services as such justice, the finding of the court that the population was a certain amount will, in the absence of anything to the contrary, be presumed to have been based on such census, it not being impossible that it could be so determined.

Appeal from Superior Court, Ventura County; J. W. Taggart, Judge.

Application by J. W. Guiberson for writ of mandate to J. L. Argabrite, auditor of Ventura County. Judgment for defendant,

plaintiff appeals. Reversed with directions.

Thos. O. Toland and M. J. Rogers, for appellant. Edward M. Selby, for respondent.

ALLEN, J. Application for writ of mandate. Judgment for defendant. Motion for Plaintiff appeals from

new trial denied.

such judgment and order.

Plaintiff makes this application for a writ of mandate to compel the auditor of Ventura county to issue his warrant upon the treasury of said county for $120 for plaintiff's salary as justice of the peace of Camulos township in criminal cases, for the six months beginning with April and ending with September, 1904. The auditor refused to issue such warrant upon the ground that Camulos township did not have a population of 500, according to the federal census of 1900, and upon the further ground that such justice has not qualified as such by filing an official bond in the form required by law, and that he did not perform the duties of such office. Upon the hearing of the case the court found that Camulos township, since September 6, 1901, has been a duly organized township with a population of more than 500 and less than 1,000; that said justice did not file his bond in the form required by law, and did not enter upon the discharge of the duties of his office, or continue in the discharge thereof, for the time mentioned in the application, and that no salary was due him.

The principal question argued in the original briefs was in relation to the sufficiency of the bond. The record shows a bond in due form of law, indorsed thereon an affidavit of justification by the sureties to the effect that the signers thereof were each property holders and residents within Ventura county. The bond also contained an indorsed approval by the judge of the superior court of the county, together with an indorsement of its filing and record in the recorder's office upon the date of its approval. This bond the court refused to accept in evidence, because it did not appear that the sureties had justified, for the reason that no affidavit was presented showing that the sureties were freeholders or householders, as the statute requires. The refusal to receive such bond in evidence was error. and the finding that no bond was filed has no support in the record. The statute requires that a bond presented to the superior court for approval shall be accompanied by

an affidavit showing that the sureties are freeholders and householders. The affidavit is no part of the bond, is not required to be indorsed thereon, nor to be recorded. The statute, however, directs the character of evidence which should be received by the court, and that it should be in the nature of an affidavit presented to him. The approval by the judge was in the exercise of a judicial function (Miller v. Board, 25 Cal. 97), and it will be presumed that he had before him competent evidence warranting the approval, and that the evidence was of the character directed by the statute. We may not say that the affidavit indorsed was the only evidence in that regard, and that no affidavit accompanied the bond containing the things required by law. The approval of the judge was sufficient to entitle the instrument to be recorded and to be received in evidence, the same being in all other respects in due form of law. There is no evidence in support of the finding that the plaintiff did not enter upon and continue in the discharge of the duties of the office; on the contrary, the undisputed evidence is that he did perform such duties. In a supplemental brief, it is insisted, upon the authority of Chinn v. Gunn (Cal. Sup.) 84 Pac. 669, that Camulos township, having been formed after the census of 1900, contains no population which may be ascertained by such census, and, therefore, is a township within the class and to which section 187, subsec. 13 of the Act of 1901, does not apply. See St. 1901, p. 755, c. 234. This section provides that townships in the class of counties to which Ventura belongs are classified by the population as shown by the federal census of 1900, and that townships having a population of over 500 and less than 1,000 shall be of the fourth class, and townships of less than 500 shall be of the fifth class; that the salary of a justice in criminal matters in townships of the fourth class shall be $20, and of the fifth class $10 per month. It is held by the Supreme Court in Chinn v. Gunn, supra, that this population can only be determined by the census of 1900. The finding of the court that the population is of a fixed amount, in the absence of anything to the contrary, will be assumed to have been, based upon such census. The statement on motion for a new trial shows that such evidence as was pertinent to the specifications of error is all that such statement purports to contain. There is no specification in relation to the finding that the township has a fixed population. We do not know what evidence was before the court in its support. That the township was formed after the census of 1900 was taken does not of necessity demonstrate that the population within the new township may not be determined from such census. It may be true that Camulos township is composed of two or more town

ships which were existing at the date of the taking of the census, and the court was able to determine the population from such aggregate population. In addition to all of this, there is no specification of error in relation to such finding, and, for the purposes of this decision, such population must be accepted. The case is then presented of an official discharging duties in a township having a classification, with a fixed salary. for which services he has presented his claim. It was the duty of the court to have issued the mandate prayed for.

The judgment and order are reversed, and the cause remanded, with directions to the lower court to issue the writ.

We concur: GRAY, P. J.; SMITH, J.

(4 Cal. App. 120)

PEOPLE v. HEMPLE. (Court of Appeal. Third District, California. July 18, 1906.)

1. EMBEZZLEMENT-ACTS OF AGENT-ELEMENTS OF OFFENSE.

Under Pen. Code, § 508, defining embezzlement by an agent or servant, it is necessary to prove that the accused was an agent, that the property came into his hands as the property of his employer, that he received it in the course of his employment, and that he appropriated it to his own use with intent to steal it.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Embezzlement, § 13.]

2. CRIMINAL LAW-BEST AND SECONDARY EV

IDENCE--EMBEZZLEMENT.

In a prosecution for embezzlement by an agent of a theater company of money received on the sale of tickets, where the only method of determining how many tickets had been sold was by referring to the racks containing the tickets for sale, or to the stubs of the tickets received at the door, testimony of another agent who followed accused in selling tickets, from a memorandum as to what the stubs and unsold tickets showed, was inadmissible, the original evidence having been immediately destroyed. 3. SAME-HEARSAY.

Testimony from a memorandum as to the contents of a receipt from a theatrical company for its proportion of the receipts for a certain day, admitted in a prosecution for embezzlement, to show the total receipts by the theater company for the day, was hearsay.

4. EMBEZZLEMENT-EVIDENCE-SUFFICIENCY. Evidence in a prosecution for embezzlement held insufficient to show that the defendant received the amount alleged to have been embezzled.

5. SAME-QUESTION FOR JURY.

Evidence, in a prosecution for embezzlement, held to present a question for the jury as to whether defendant fled to escape arrest. 6. CRIMINAL LAW-INSTRUCTIONS-MODIFICATION OF REQUEST.

Where the court was requested to instruct that to warrant a conviction the prosecution must prove "so clearly and conclusively to your ninds," etc., or "so clearly and conclusively that there is no reasonable theory upon which he can be innocent when all the evidence in the case is considered together," there was no error in striking out the phrases quoted and inserting in place of each the words "beyond all reasonable doubt."

[Ed. Note. For cases in point, see vol. 14, 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 money, 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 $142.50, 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 Hemple was agent and servant to one C. P. Hall, 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. 384, 12 Pac. 261; People v. Gordon, 133 Cal. 328, 65 Pac. 746, 85 Am. St. Rep. 174; People v. McLean, 135 Cal. 306, 67 Pac. 770; People v. Goodrich, 142 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 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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