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(4 Cal. App. 38)

for the payment of money to C. A. Baxter. PEOPLE V. THORNBURGH.

If the order should be complied with and (Court of Appeal, First District, California.

the money called for paid to Baxter, he June 27, 1906.)

certainly would not be defrauded; neither 1. FORGERY-ELEMENTS OF OFFENSE-NATURE would the payer be defrauded, for, by acOF INSTRUMENT.

cepting payment, Baxter would at once be A check drawn payable to the maker or order and not indorsed cannot be the subject of

estopped from disputing the genuineness of forgery, and where the forgery of the indorse

the signature. So, too, if Baxter indorsed ment therein is relied upon to constitute the the check, he would be liable on the check offense, under Pen. Code, $ 470, it must be so

as fully as though he signed it. “An order charged in the information. 2. SAME-SUFFICIENCY OF INFORMATION.

to pay money to one's self cannot be the An information charging the forgery of "a

subject of forgery until the maker indorses certain instrument in writing" which is set it.” Com. v. Dallinger, 118 Mass. 439. out and shown to be a check payable to the This brings us to a consideration of the maker or order and with his name indorsed thereon does not charge the forgery of the in

words following the check set forth in the dorsement, which is not a part of the check. information, to wit, “Indorsed 'C. A. Baxbut creates a separate contract, nor does it ter.'" In the case of People v. Cole, 130 charge a public offense.

Cal. 13, 62 Pac. 274, the defendant E. J. Appeal from Superior Court, City and Cole was charged with the forgery and utterCounty of San Francisco; William P. Law ance of a check which was set forth in the lor, Judge.

information as follows: “ 'Sacramento, Cal. Information for forgery against Herbert Aug. 31, 1899. National Bank of D. 0. Mills T. Thornburgh. Defendant was convicted, & Co. Pay to E. J. Cole or order, Ten doland appeals. Reversed.

lars ($10.00). [Signed] E. J. Cole.' Indorsed

on back 'S. B. Smith.'" Wm. S. Barnes and H. H. McCloskey, for

In discussing the appellant. U. S. Webb, Atty. Gen., for the question as to whether or not the informaPeople.

tion charged a public offense against Cole,

the court, after determining that the inHALL, J. Defendant was convicted of

strument on its face (without the indorsethe crime of forgery, and the case is before

ment) was not a subject of forgery, said:

"It is claimed that the indorsement of 'S. this court on his appeal from an order de

B. Smith' was forged. nying his motion for a new trial, and from

If so, the informa

tion should have so stated. It shows that the judgment. The point was made, both upon demurrer

the check was indorsed 's. B. Smith,' and and upon motion in arrest of judgment, that we must presume that S. B. Smith indorsed the information does not charge a public

it as stated in the information. It is not offense, and this is now the principal point

even hinted that the indorsement was forged relied upon for a reversal of the judgment.

or made without the authority of Smith. The information charges that defendant

* * * The information shows the check “did then and there willfully, unlawfully, to bear the indorsement 'S. B. Smith, but the feloniously and fraudulently, and with intent indorsement is no part of the check. The conthen and there to damage, prejudice and tract of the indorser is a different and distinct defraud one, Ignatz Beck, make and forge | contract from that of the maker. His liabila certain instrument in writing, check, draft, ity is only conditional and dependent upon order and writing obligatory, in the words

circumstances that may never transpire." and figures following, to wit: 'San Fran The cause was remanded, with directions cisco, April 15th, 1905. No.

The

to the lower court to sustain the demurrer. Crocker Woolworth National Bank of San Applying the doctrine of the Cole Case Francisco. Pay to self or order $10.00 ten

to the information now before us, we must dollars. Clearing House No. 21. C. A. Bax hold that defendant is not charged with ter.'

Indorsed 'C. A. Baxter.'” And then forging the indorsement, but on the contrary follows a charge in apt language of utter we must presume that the indorsement was ing the same instrument to Beck.

in fact made by Baxter on the instrument It is urged that because the instrument set forth. If this were so, Baxter at once set forth in the information appears upon

became liable on the instrument set forth its face to be payable to the maker thereof as fully as though he had in fact drawn and no one could be defrauded thereby; that the signed it, and no one could be defrauded. defendant is not charged with forging the thereby. It must be remembered that our indorsement of the name of the maker and statute makes it a crime to forge certain payee on the back of the instrument, which instruments with intent to defraud, and also makes the instrument in legal effect payable to forge an indorsement to certain instruto bearer, but is charged with forging the ments with such intent. Pen. Code, $ 470. face of the instrument only. The check set Where the prosecution relies upon the forforth in the information, without the indorse gery of the indorsement to make out the ment, is not such an instrument as could be crime, it is a very simple matter to expressthe means of defrauding any one. It pur- | ly charge a forgery of the indorsement. ports to be an order signed by C. A. Baxter For the foregoing reasons, and upon the

authority of People v. Cole, supra, the judg the same prior to the month of June in any ment and order are reversed, with directions year during the term of this lease, the party to the trial court to sustain the demurrer. of the second part shall not be obliged to pay

rental for the part or parts that may become We concur: HARRISON, P. J.; COOP submerged or overflowed. (6) It is further FR, J.

agreed that the party of the second part may at its option, cancel this lease by giving no

tice in writing to the party of the first part, (4 Cal. App. 192)

or her duly accredited agent, at any time durDONNELLAN v. WOOD, CURTIS & CO.

ing the term of this lease, should the reclama(Court of Appeal, Third District, California. tion of the leased premises be not sufficient July 31, 1906.)

to permit the cultivation and farming thereof 1. LANDLORD AND TENANT – LEASE - CON at seasonable times of the year.” The defense STRUCTION-TERMINATION. A lease of reclaimed land at $10 per acre

made in the answer was that on February 26, provided that if, by reason of flood or imperfect | 1904, the premises were overflowed and subreclamation, any part of the land should be sub merged to such extent as to render all the merged or overflowed, so as to be impossible of land impossible of cultivation prior to the cultivation prior to June 1st in any year, during the term of the lease, the lessee should not

month of June, or "to permit of the cultivabe bound to pay rent for the parts so sub tion and farming thereof at seasonable times merged, and that the lease was subject to can of the year"; that under the terms of the cellation by the lessee by giving notice at any

lease defendant did, "on the 10th day of May, time during the term, should the reclamation not be sufficient to permit the cultivation and

1904, cancel said lease by then and there givfarming thereof at seasonable times of the year. ing plaintiff notice in writing, * * * and On February 26, 1904, the premises were sub

that thereafter, on the 11th day of May, 1904, merged, so that it was impossible to cultivate the land prior to the month of June, and on

plaintiff signified her concurrence in the canMay 10, 1904, the lessee canceled the lease by cellation thereof in writing, and then and notice, and in an action for rent prior to the

there signified her intention to and did treat date of cancellation it was proved that the cul

said lease as terminated of said 10th day of tivation prior to February was merely by way of preparation for seeding, and was profitless. May, 1904." There was evidence sufficient to Held that, the premises having been overflowed show these allegations to be true, and the prior to June 1st, the lessee was not liable for

court so found. The record contains the folrent for the first half of the year, payable April 1, 1904.

lowing admissions: "That the lease was can[Ed. Note.-For cases in point, see vol. 32, celed by the defendant with the consent of the Cent. Dig. Landlord and Tenant, $8 777-779.] plaintiff and on the 10th day of May, 1094, 2. APPEAL JUDGMENT FOR PLAINTIFF-PREJ according to its terms, and that plaintiff took UDICE.

possession of the leased premises on said day; Where defendant did not appeal from the

that the reclamation of the premises * * * judgment in favor of plaintiff for $20, such judgment will not be reviewed on plaintiff's ap was not sufficient to permit the cultivation peal; she not being injured thereby.

and farming thereof at seasonable times of [Ed. Note.--For cases in point, see vol. 3,

the year; that the leased premises were floodCent. Dig. Appeal and Error, $$ 4052-4062.]

ed on the 1st day of June, 1904.” In his letAppeal from Superior Court, Sacramento ter, replying to defendant's notice of cancelCounty ; Peter J. Shields, Judge.

lation, plaintiff wrote: “While not admitting Action by Marion J. Donnellan against that the condition which justified you to canWood, Curtis & Co. From a judgment in cel the lease existed, I nevertheless concur in favor of plaintiff for less than the relief de the cancellation of the lease, and consider the manded, she appeals. Affirmed.

same terminated of the date of your commuA. L. Shinn, for appellant. J. Frank nication, namely, May 10, 1904, and I hereby Brown, for respondent.

demand of you payment of the rent due for

said premises up to and including May 10, CHIPMAN, P. J. Action for rent of farm

1904, amounting to $3,145.85.” The complaint ing land under the terms of a written lease

was filed May 19, 1904, and the cause was made by plaintiff to defendant. The land

tried in December, 1904. · leased (about 531 acres) was situated in rec

After the cause was submitted the court of lamation district No. 673, in the county of

its own motion set the submission aside, "and Sacramento. The lease was entered into Oc

asked the defendant to introduce evidence as tober 29, 1902, and was for the term of five to the use of the premises by the defendant years commencing January 1, 1903. The rent after the 1st day of January, 1904, and the al was $10 per acre, and was to be paid in value of such use." Thereupon defendant equal semiannual installments on April 1st

asked and obtained leave to amend its answer and September 1st during the term. The

by alleging that the premises were rented for lease contained, among other provisions, the farming purposes, and that from January 1st following: “(5) It is further understood and to February 26, 1904, “defendant farmed and agreed that if by reason of flood or imperfect cultivated said premises, but that no rents, reclamation any part of the leased premises revenues, or profits were derived by defendshall be submerged or overflowed to such an ant therefrom; that said premises were not extent as to render it impossible to cultivate susceptible of farming or cultivation for profit

during said time, and that the use thereof with reference to the condition of the land was of no benefit to defendant; that from on a certain date, such stipulation excludes said 26th day of February to May 10, 1904, an apportionment because of a previous tersaid premises could not be farmed, cultivated, mination of the tenancy; that the surrender nor used for any purpose.” The amendment of a lease does not operate as a discharge was objected to by plaintiff, as also was all of rent already due; that the right of canevidence thereafter submitted on the question cellation under the lease does not declare of use and value of use from January 1st to what the effect of the cancellation shall be, February 26th as not within the issues. It ap and hence the effect is to leave the parties peared by the evidence that the cultivation in the position occupied by them at the time given the land prior to February was by way of cancellation with reference to mutual liaof preparing it for seeding later on in the sea bility. Appellant states the rights of defendson, and that all the labor thus bestowed was ant as follows: An election either to hold profitless.

the lease, pay the amount due on the 1st day The court found that defendant had used of April, 1901, and claim its deduction on the barns, for the storage of hay, from Janu the 1st day of June, if the conditions warary 1 to May 10, 1904, which defendant had ranted it, or else cancel the lease "according sold but had not delivered, and which was to its terms," and pay whatever was due at destroyed by the overflow of the premises, the time of cancellation. It may be conceded and for "the value of the use of said premises that some of appellant's propositions are to defendant for the storage of said hay" the sound and well supported by the authorities court awarded plaintiff judgment for $20, but cited. For example, it is doubtless the (lenied any recovery for the stipulated rental rule generally that the surrender of a lease payable April 1, 1904. The court was of the does not operate a discharge of rent already opinion that the defendant might have rested due. But, after all, the case must rest, as its defense upon the fact that it was wholly we view it, upon a proper construction of the leprived of the beneficial use of the leased lease, guided, of course, by recognized rules premises up to April 1st, but the learned of law in arriving at such construction. It judge preferred, as he stated in his opinion, required no evidence to show, what is patent to place his decision upon the provisions of on the face of the lease, that the parties section 1935 of the Civil Code, which pro contracted with reference to the possible vides: "When the hiring of a thing is ter overflow of the land, thus rendering it unminated before the time originally agreed up suitable for occupation or cultivation. Hence on, the hirer must pay the due proportion of liability to pay rent was made to depend the hire for such use as he has actually made upon the fact that this contingency did not of the thing, unless such use is merely nomi- happen, and the right to cancel the lease nal, and of no benefit to him.” Appellant also depended on the happening of this concontends that this section has no application | tingency. There might have been a sudden to the leasing of real property, and that the and transitory submergence of the land by rights of the parties rest alone on the terms water, prior to June 1st, that would bave of the lease. The question is an important passed away in time to enable the lessee to one and ably argued; but, as we do not find cultivate the land. But in order to fix a it necessary to resort to the statute, we pre time beyond which the parties regarded it as fer to express no opinion upon the view taken impossible to cultivate the land for any given by the trial judge.

year, the limit was fixed to a time "prior to Appellant states the question thus: Does the month of June"; that is, if the land was the cancellation of the lease, made after rent overflowed and remained so on May 31st "to has become due under the terms of the lease, such extent as to render it impossible to culrelate back so as to cancel the obligations tivate the same,” the lessee “shall not be that have arisen between the parties before obliged to pay rental for the part or parts such cancellation? Answering the question that may become submerged or overflowed." in the negative, appellant advances the fol But that by no means implies that defendant lowing propositions, which fairly present the was liable for rent on April 1st, regardless points made in the argument: That the par of the then condition of overflow. We cannot ties through the lease contracted definitely agree with plaintiff that he had a right of with reference to the time of payment, the action and could have recovered for rent on condition for revocation, and specially pro- | April 2d, admitting, as he does, that at that vided conditions upon which rent should time the land was so overflowed as to make not be paid; that an action might have been its cultivation impossible. We think the very inaintained for rent due under the terms of terms of the lease preclude such view of the this lease on the 2d day of April, 1904; that case. It would violate the paramount obthe defendant made it impossible to con ject, manifestly in the minds of both parties, sider the conditions on the 1st day of June which was that there should be no payment by terminating the contract, and therefore of rental required if the land was rendered deprived itself of the benefit of that provi- unsuitable for cultivation by reason of oversion in the lease; that, having expressly | flow. Any other construction would work stipulated that rent should be apportioned gross injustice, and this the law will never

tolerate unless the parties have, by their con become impossible, and such was the fact, as tract, so tied the hands of the courts as to clearly appeared and was admitted. What make them powerless to administer justice, would have been the liability of defendant which is not the situation here.

had he canceled the lease on May 10th, and Appellant would obviate the manifest in- had the water subsided, and the land become equity of holding defendant to the payment susceptible of cultivation, “prior to the month of the April installment, notwithstanding of June,” we need not consider, for no such that the land was then submerged by several event happened. The land was still under feet of water, as the evidence shows, by giv- water on June 1st. We are unable to discoving to defendant the right to recover back the er any legal or equitable ground upon which rent on June 1st “if the conditions warranted plaintiff could hope to recover under the lease, it.” The terms of the lease neither require in view of the facts and circumstances. So nor admit of such construction. Cases cited | far as the judgment for $20 is concerned, dewhere rented buildings were burned after rent fendant has not appealed, and plaintiff is not had accrued do not seem to us to be in point, injured thereby, although he objected to the for here the possible use of the land was de evidence on which it rests and stoutly constroyed some time before April 1st, to wit, tends that the theory of the law supporting February 26th, and this condition continued it is erroneous. not only to April 1st, but after June 1st. Some point is made, but we think not well The water was so deep that it destroyed the founded, as to the lack of evidence to sushay stored in the barns, and the dwelling tain certain findings. was inhabitable in the second story only. The judgment and order are affirmed. The land had ceased to be a farm, and had become a lake. But defendant had agreed We concur: MCLAUGHLIN, J.; BUCKto pay rent for land at a stated rate per acre. LES, J. The risks of overflow. were taken by plaintiff, and there would be an utter failure of con

(4 Cal. A. 180) sideration where the land had become impos

BULLY HILL COPPER MINING & SMELTsible of cultivation from the cause stipulated

ING CO. v. BRUSON et al. against. We cannot agree with appellant as to the consequences flowing from the capcel

(Court of Appeal, Third District, California.

July 28, 1906. Rehearing Denied by Sulation of the lease. It is true that it does

preme Court, Sept. 26, 1906.) not directly point out the effect of the cancel

1. APPEAL-ASSIGNMENTS Not DISCUSSED IN lation, but reading the two clauses together, BRIEP. numbered 5 and 6, and considering the cause Assignments of error not discussed in apfor which cancellation is allowable, it is quite pellant's brief will be taken as waived.

[Ed. Note.-For cases in point. see vol. 3, evident that, if the cause existed, the lessee

Cent. Dig. Appeal and Error, SS 4256-4261.) had the right not only to cancel, but to be

2. EASEMENTS - WAY OF NECESSITY - RELAacquitted of the promise to pay rent. Appel

TION OF PARTIES. lant says the effect was "to leave the parties That there may be a way of necessity the in the position occupied by them at the time relation of grantor and grantee must have exof cancellation with reference to mutual lia

isted between the parties, or persons in their

lines of title; and it is not enough that the bility.” What was that position? Simply land was once part of the public domain, and this: If the premises were "overflowed to hence owned by a common grantor. such extent as to render it impossible to cul

[Ed. Note.-For cases in point, see vol. 17, tivate the same,

Cent. Dig. Easements, 88 50-54.]

the party of the second part shall not be obliged to pay rent

3. SAME-ABSENCE OF OTHER WAY.

That defendants may have a way of necesal."

sity over plaintiff's land it is necessary that On May 10th the flood of February was there be no other way to reach their lands; and still on, and the parties, with this fact in

it is not enough that it is the only way by which their minds, mutually agreed that the lease

a wagon can reach them, if a way can be con

structed over defendants' lands. might be and it was canceled. Plaintiff's con

[Ed. Note.--For cases in point, see vol. 17, sent was not necessary to the exercise of d. Cent. Dig. Easements, 88 50-54.] fendant's right, but he did consent, and, although demanding rent, it was not made a

Appeal from Superior Court, Shasta Coun

ty; C. M. Head, Judge. condition to his consent, and would have availed nothing if it had been. He went in

Action by the Bully Hill Copper Mining

& Smelting Company against W. C. Bruson to possession and the contract was at an end.

and others. From an adverse order, deWe have held that defendant was not liable

fendants appeal. Affirmed. for rent on April 1st, and, as the premises

Rehearing denied by Supreme Court; were overflowed and that was the cause of the cancellation, the "position of the parties"

Beatty, C. J., dissenting. on May 10th was that of mutual nonliability, C. B. Sessions and Guy Shoup, for aprather than that of liability of either to the pellants. Reid and Dozier, for respondent. other. It. must have been obvious to both parties on May 10th that cultivation of the MCLAUGIILIN, J. This action involves land "at seasonable times of the year" had the right of defendant to use a wagon road

about three miles in length, extending from plaintiff's mines and buildings to the main road near Copper

Copper City, Shasta county. Plaintiff insists that the road is a private thoroughfare, while defendants insist that it is a public road. It crosses lands owned by plaintiff and other private owners, and public lands of the United States, and at one point passes over land owned by defendant, Shasta Electric Golden Copper Company. In 1877 or 1878 a tramway was constructed for the purpose of conveying ore from mines now owned by plaintiff to a mill near Copper City. In course of time the tramway was abandoned as such, and the ties and rails of which it was constructed were torn up and sold.. From 1894 to 1896 the grade, theretofore used for the tramway, was at times freely used by persons having occasion to use the same, but the grade and bridges were so destroyed that it could only be used in places, and no part of it was used by the public generally for any purpose.

In 1896 one Sallee, plaintiff's predecessor in interest, widened the grade into a wagon road and constructed the same for his own use and benefit as an appurtenance to said mines, and not for the public use or benefit, and whatever rights he acquired passed to plaintiff as appurtenant to the mines, which were thereafter conveyed to it. The public was not at any time invited, permitted, or allowed to use the road, nor was any person who had occasion to use it invited or given permission to do so. It was not freely, openly, notoriously, or continuously used as a public highway with the consent of plaintiff or its predecessors, but was used by plaintiff and its predecessors in interest for their own convenience and the convenience of their employés.

In October, 1904, defendants Camp and Brown, as lessees of the Shasta Electric Golden Copper Company, commenced the construction of a hotel on land owned by their lessor, near where this road crossed said land, and for the purpose of enabling four and six horse teams to go along said road and bring lumber and supplies to them said defendants widened said road in places and built a bridge and culvert thereon. As soon as plaintiff had knowledge of such work, its agent notified defendants that the road was a private thoroughfare, and later erected a gate across the road at a point on plaintiff's land in order to prevent defendants from using the road and cutting it up with heavy teaming. The only manner in which defendants can reach said hotel or the mines owned by said Shasta Electric Golden Copper Company from any public road by team or wagon is by going over said road. The road was constructed and used by plaintiff and its predecessors for years before the patent to lands owned by the Shasta Electric Golden Copper Company was issued, and the right of plaintiff to use it at any time or for

any purpose is admitted. It clearly appears that plaintiff and its predecessors had not only used the road for their own convenience, but that they claimed and exercised the right to control or prevent its use by others. The municipal authorities neither constructed the road nor purchased it from those who did, and the overwhelming preponderance of the evidence shows that it was never directly or indirectly dedicated to the use of the public.

The appellants assign many errors and specify many particulars in which the evidence fails to support the findings in the statement of the case found in the transcript; but, as they do not mention or discuss any of these points in their brief, they must be taken as waived. Bell v. S. P. R. R., 144 Cal. 572, 77 Pac. 1124; Humphrey y. Pope (Cal. App.) 82 Pac. 223. In fact, the brief filed in behalf of appellants is virtually an abandonment of their original position and contention as disclosed by the pleadings. There is no word in the brief touching the public or private character of the road; the sole burden of the argument being that appellants are entitled to use it as a way of necessity. This argument is pregnant withi the admission that the road is private, because it necessarily assumes that plaintiff's admitted and acknowledged right must yield to the necessities of defendants. There are many reasons why the contention of appellants in this behalf cannot be sustained. To begin with, no such defense was set up in the answer, and no such issues were tried by the court. But, waiving this, the facts essential to the existence of a way of necessity were not established by the evidence or found by the court. "The right of way from necessity must be in fact what the term naturally imports and cannot exist except in cases of strict necessity. It will not exist when a man can get to his property over his own land. That the way over his own land is too steep or too narrow or that other and like difficulties exist does not alter the case, and it is only when there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way.” Kripp v. Curtis, 71 Cal. 65, 11 Pac. 879.

There is nothing in this record to show that the relation of grantor and grantee ever existed between the plaintiff and any of the defendants. The mere fact that all of the land was originally part of the public domain and hence owned by a common grantor cannot confer the peculiar right out of which a way from necessity arises. If, however, it be fully conceded that all other basic facts essential to a way from necessity existed, the vital fact that there is no other way to reach the lands or property of defendants is lacking. True, the court found "that the only manner by which a wagon or team can

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