(4 Cal. A. 137)

PEOPLE v. LOWRIE.

(Court of Appeal, First District, California. July 19, 1906. Rehearing Denied by Supreme Court Sept. 17, 1906.)

OF

1. CRIMINAL LAW-TRIAL - RECEPTION MOTION TO STRIKE OUT-TESTIMONY FROM PRIVATE RECORD-EVIDENCE.

In prosecution for burglary a witness who was employed by a railroad company as ticket clerk examined certain tickets and testified that one of them was sold by him after 7 o'clock on the evening of April 27, 1905. On cross-examination he testified that he made the statement from the fact that the records of the office showed that a certain number of tickets were used on that evening and that he was the only person there to sell tickets. It appeared that the records were not kept by the witness, whereupon the testimony concerning the records was stricken. Held, that the balance of the testimony was admissible, there being nothing to show that the witness had testified as to that from a record not made by himself. 2. SAME-DISCRETION Of Court.

Where, in a prosecution for burglary, it was material to show certain sales of railroad tickets, it was not error for the court to admit what purported to be a record kept by the railroad company of the numbers of the daily sales of tickets, prior to its connection being proved, on the statement of the district attorney that he intended to establish that the record was a book of original entries by the testimony of the witness who made the entries.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1611.]

3. SAME-OPINION.

In a prosecution for burglary, a question whether there was any way that witness could tell or estimate the time that a certain railroad ticket was sold, from the ticket, of the witness' own knowledge, was not objectionable as calling for the witness' opinion.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1035-1055.] 4. BURGLARY-STOLEN PROPERTY-EVIDENCE.

Where, in a prosecution for burglary, the state claimed that the works of two watches were part of the property stolen by the person who committed the burglary, evidence of the finding of the works of two watches in a suit case in defendant's room was admissible to prove guilt.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Burglary, § 91.]

5. SAME EXCULPATORY CIRCUMSTANCES.

In a prosecution for burglary, evidence that a witness examined defendant's room and that she did not find burglar's tools or implements, files, or keys therein was inadmissible to show innocence.

6. WITNESS' REFRESHING MEMORY - DUPLICATE ENTRIES.

Where, after a railroad ticket agent's report of daily sales of tickets was made out, a letter press copy thereof was taken from the original, such copy or duplicate might be properly used by the agent who made the original to refresh his memory, to enable him to testify as to ticket sales on a particular date.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 874.]

7. CRIMINAL LAW-APPEAL-RECORD-OBJECTIONS TO EVIDENCE-REVIEW.

Where the record on appeal in a criminal case did not show the contents of a letter which was excluded, nor its substance, nor by whom it was written, it would be presumed that the ruling was correct.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3029.]

8. BURGLARY-DEGREES EVIDENCE.

Where, in a prosecution for burglary. it was shown that, when the family of F. awoke, at 5:30 a. m., they found that the house had been entered during the night and various articles stolen therefrom, the evidence was sufficient to justify a verdict that the entry constituted burglary in the first degree, which depended on the time it was committed.

Appeal from Superior Court, Alameda County.

C. D. Lowrie was convicted of burglary, and he appeals. Affirmed.

W. T. Hume, for appellant. U. S. Webb, Atty. Gen., for the People.

We

COOPER, J. Defendant was convicted of the crime of burglary in the first degree, and sentenced to imprisonment in the state prison for the term of 15 years. This appeal is from the judgment and an order denying the defendant's motion for a new trial. have carefully examined the evidence, and find it sufficient to support the verdict; and hence it is not necessary to discuss it in detail, nor the questions raised as to its sufficiency.

Defendant assigns as error the refusal of the court to strike out the direct testimony of the witness Bailey, who was employed on the 27th day of April, 1905, by the Southern Pacific Railroad Company at the local ferry office as ticket clerk. Bailey, while on the stand, examined a number of tickets shown to him, and testified that a ticket shown to him was sold by him after 7 o'clock on the evening of April 27, 1905, at the ferry ticket office in San Francisco, at the foot of Market street. On cross-examination he testified that he made the statement from the fact that the records of the office showed that certain numbers of tickets were used on that evening, and that he was the only person there to sell tickets. The defendant did not object to the testimony when offered, but moved to strike it out on the ground that the same was incompetent and not the best evidence, which motion was denied, and is the ruling complained of. Without passing upon the question as to whether or not the ruling was erroneous, it is sufficient to say that, after further examination, when it was discovered that the records in the office as to tickets sold were not kept by the witness Bailey, the court, on the defendant's motion, struck out the testimony of the witnesss concerning the record, on the ground that the same was hearsay, incompetent, and irrelevant. After the testimony of the witness as to the record was stricken out, his testimony as to other matters was then competent, for the reason that there was nothing to show that he had testified from a record not made by himself. In all cases where a motion is made to strike out testimony which was not objected to at the time, much discretion is necessarily vested in the trial court. It would require a plain abuse of such dis

cretion in regard to a material matter to justify the reversal of a case for such reason.

There was no error in the ruling allowing in evidence the book of original entries, purporting to be a record kept by the railroad company of the numbers and daily sales of tickets. The court, in the first place, on the objection of the defendant, refused to admit such record, but the district attorney stated that he intended to connect it by the testimony of Kern, who made the original entries. After such statement no further objection was made by the defendant, and the record was received in evidence. The district attorney afterwards called Kern, and identified the record as he promised to do.

The district attorney asked of the witness Bailey the following question: "Is there any way that you can tell or estimate the time that that ticket was sold, from itself, of your own knowledge?" The court overruled the defendant's objection that the question called for the opinion of the witness, and was incompetent, irrelevant, and immaterial, and such ruling is urged as error. The question was not objectionable, and, more than this, the witness answered in effect that he had no way of telling when the ticket was sold except by the record as to the numbers of the tickets sold on that evening.

There is no merit in the contention that the court should not have allowed the witness Freel to testify to the fact of finding the works of two watches in a suit case in defendant's room. The district attorney introduced evidence tending to prove the works of the two watches so found were part of the property stolen by the party who committed the burglary. The burglary is alleged to have been with intent to commit larceny. The fact that stolen property is found in possession of defendant in cases of larceny is always a circumstance tending to prove his guilt. If unexplained, it is a most potent circumstance. The defendant here made no attempt to explain the circumstances as to why the works of the watches were in the suit case in his room. Nor was it error to sustain the objection of the district attorney to defendant's question, asked of the witness Rosenblatt, as to whether or not she examined the defendant's room, and whether or not she saw any burglar's tools or implements, files, or keys around the room. The fact that such tools were not found, if true, would not be competent to prove the defendant innocent.

The defendant seems to earnestly urge that the court erred in admitting the record of the railroad company as to the numbers and report of tickets sold each day, and the testimony of the witness Kern based upon such record. As to the first part of the objection, it appears that the record or report as to the numbers of tickets sold is made up by the agent, who is in charge and sells the tickets, at the end of the day. When

And

the report is made up, copies are made by the use of blank sheets and a wet blotter from the ink on the original report; in other words, letterpress copies of the original are made. The copies are reproductions of the handwriting of the original report. It is but another way of making duplicates of the original entry. If the party who made the original entry had made at the same time several duplicates in his own handwriting they would all be regarded as original entries. Instead of doing this the writing is repro duced from the same characters and the same ink on the original. The duplicates are thus more exact than they could possibly have been by having been copied in the handwriting of the party who made the original. while it appears that the record as to the closing numbers of the tickets sold on the 26th and 27th days of April, 1905, was offered in evidence by the district attorney, and the defendant's objection thereto overruled, it does not appear that the record was actually received or read in evidence. No copy of any such record is in the transcript. The witness evidently refreshed his memory by the use of the duplicate entries, which he had the right to do. He testified that the closing numbers on the 26th and 27th days of April were in his handwriting. He then testified that the closing number on the 26th was 376,194, and on the 27th 384,752. No objection was made to the witness using the letterpress copies for the purpose of refreshing his memory.

Defendant, in the cross-examination of the witness Conrad, appears to have offered a letter in evidence to which the district attorney objected on the ground that it was hearsay and a self-serving declaration. The court sustained the objection, and the ruling is assigned as error. As the record does not show the contents of the letter, nor its substance, nor by whom it was written, we must presume that the ruling of the court was correct.

There was no error in the instruction to the effect that the jury might, if the evidence warranted, find the defendant guilty of burglary in the first degree. The degree depended upon the time the burglary was committed. When the Fritschie family awoke at about 5:30 o'clock a. m. of the morning of April 28, 1905, they found that the house had been entered during the night and various articles stolen therefrom. The burglar had departed. As to when the entry was made and the property stolen was a question of fact for the jury, and might be arrived at from all the facts and circumstances. There was sufficient evidence to justify the implied finding of the jury that the entry was in the nighttime.

There are no other points sufficiently plausible to merit discussion.

The judgment and order are affirmed.

We concur: HARRISON, P. J.; HALL, J.

(4 Cal. A. 109)

BREE v. WHEELER.

(Court of Appeal, Third District, California. July 16, 1906. Rehearing Denied by Supreme Court September 14, 1906.)

1 ADVERSE POSSESSION-WATER RIGHTS.

No title to water rights accrued by adverse possession, where plaintiff annually interrupted defendant's use.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 232-235.] 2 FRAUDS, STATUTE OF-WATERS AND WATER COURSES AGREEMENTS-PART PERFORMANCE. Though Code Civ. Proc. § 1971, and Civ.

Code, 1624, classify water rights as realty, and require written agreements relating thereto, where an oral agreement, actually dividing the water, was acted on and gave to each of the parties possession of one-half the water, and nothing remained to be done, except the execution of a conveyance, a court of equity will protect the rights of the parties.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 334-341.] 3. SAME RIGHTS.

AGREEMENTS FIXING WATER

Where parties have entered into an oral agreement settling disputed water rights, which is carried into effect, and have acquiesced in it for a considerable time, such agreement is not within the statute of frauds.

4. CONTRACTS-REPUDIATIONS.

A party to an executed agreement cannot repudiate it without the other's consent.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, § 1143.]

5. WATERS AND WATER COURSES-AGREEMENT AS USE-ABANDONMENT.

Where plaintiff and defendant orally agreed concerning a division of water rights, and defendant placed in the stream a measuring box for the purpose of dividing the water and, after its use for some time, plaintiff took it out and defendant again, at his own expense, replaced such box, and it was again taken out by the plaintiff, whereupon defendant used all the water, such subsequent use did not destroy his right to the quantum fixed by the agreement. 6. SAME.

Where the parties mutually agreed on a division of water rights, defendant, having been forced to defend his rights, could rely not only on his original claim of right, but on the rights claimed under the agreement and could not be required to elect.

Appeal from Superior Court, Nevada County; F. T. Nyland, Judge.

Action by William Bree against Lewis Wheeler. From a judgment for defendant, plaintiff appeals.. Affirmed.

Chas. W. Kitts and Thos. S. Ford, for appellant. J. M. Walling, for respondent.

MCLAUGHLIN, J. This is the second appeal in this case-Bree v. Wheeler, 129 Cal. 146, 61 Pac. 782. Upon the second trial, had on amended pleadings, the facts found show that up to 1885 plaintiff was the owner of all the water in dispute and that defendant did not acquire title thereto by adverse possession, or otherwise, unless an agreement, affirmatively pleaded in the amended answer and found by the court, operated to give him the right to one-half of the water.

Flaintiff, who is appellant here, contends

that, upon the findings the court should have adjudged him the owner of all of said water instead of decreeing that each of the parties owned one-half thereof. The finding relating to the agreement above mentioned is in substantial accord with the averment of the amended answer in that behalf, and in substance is as follows: In 1885, each of the parties hereto was claiming the water in question, and defendant was using it for ir

rigating his land, against the protest of plaintiff. They talked the matter over, and it was orally agreed to avoid litigation and in settlement of their respective rights to the use of the water, that they should divide it, the plaintiff taking it during the night, and the defendant during the daytime. This method of division continued for two seasons, whereupon, plaintiff being dissatisfied, the manner of division was changed by mutual consent, and a measuring box was put in the stream which equitably and fairly divided the water, each party taking one-half thereof both day and night. This method continued for two seasons, but in 1889 plaintiff again became dissatisfied, and wrongfully tore out the measuring box. Then a board was placed in the stream by defendant, at his own expense, at a level, with two holes of equal size, to divide the water equally, and plaintiff removed this appliance. The defendant then took all the water, leaving none for plaintiff. After the recital of the foregoing facts, the finding reads as follows: "Defendant continued to divide the water as long as plaintiff would permit him to do so. In order to divide the same it was necessary that a measuring box or other suitable appliance be maintained at the point of diversion. Unless such means of division was maintained, defendant could not divide the water. This condition of affairs continued from 1889 until the commencement of this action." As the plaintiff interrupted the defendant's use annually, no title by adverse possession could accrue, and hence the rights of the latter, and the validity of the judgment depend entirely upon the effect of the compromise agreement or settlement.

Water rights are classed as real property, and hence, under the general rule, any agreement relating thereto must be in writing. Code Civ. Proc. 1971, Civ. Code, § 1624; Hayes v. Fine, 91 Cal. 498, 27 Pac. 772; Blankenship v. Whaley, 124 Cal. 304, 57 Pac. 79. But in the case at bar the agreement was acted upon by placing a measuring box in the stream, and actually dividing the water, and by mutual consent of the parties each was placed in possession of one-half thereof. To complete the transfer nothing remained to be done except the execution of a conveyance, conveying a proper proportion of the water to each. Each had a perfect equity, entitling him to a deed from the other. When such is the case, a court of equity, in accordance with its familiar rules, considering that as done which ought to be done, will

protect the right obtained "as readily and as fully as a legal title." Flickinger v. Shaw, 87 Cal. 133, 25 Pac. 268, 11 L. R. A. 134, 22 Am. St. Rep. 234; Blankenship v. Whaley, supra, and 142 Cal. 566, 76 Pac. 235; Griseza v. Terwilliger, 144 Cal. 462, 77 Pac. 1034; Bates v. Babcock, 95 Cal. 486, 30 Pac. 605, 16 L. R. A. 745, 29 Am. St. Rep. 133; Bigelow on Fraud, vol. 2, p. 445. There is another principle of law under which the agreement must be held binding. It has been held repeatedly and with practical unanimity that an oral agreement fixing a dividing line between owners of land is not within the statute of frauds, and that when the line is in doubt or dispute a settlement between the owners determines the location of the existing estate of each, and when followed by possession and occupancy, binds them in equity and at law as well. "If the parties have carried the agreement into execution, and entered into possession in accordance with it, the courts will not disturb it, though both parties were mistaken as to the true location of the line." Jones on Real Property. $$ 354, 358; White v. Spreckels, 75 Cal. 610, 17 Pac. 715; Helm v. Wilson, 76 Cal. 485, 18 Pac. 604. "It is the policy of the law to give stability to such an agreement, because it is the most satisfactory way of determining the true boundary, and tends to prevent litigation." Cavanaugh v. Jackson, 91 Cal. 582. 27 Pac. 931; Dierssen v. Nelson, 138 Cal. 398. 71 Pac. 456. This doctrine is based on the common-sense proposition that when a dispute exists between two parties, they may adjust their differences by mutual agreement, which, when executed by them will be held binding as to each, and we can think of no reason in law or logic why the principle thus applied to land should not be applied to a case where the parties have deliberately entered into an agreement settling disputed water rights, which agreement was immediately carried into effect, and was acquiesced in for a considerable period of time. And if such an agreement relating to land cannot be disturbed by the parties after it has been carried into effect, a similar

executed agreement relating to another class of real property must be held equally efficacious. Jones on Real Property, §§ 358, 359. It must, therefore, be held that plaintiff could not repudiate the agreement made, carried into effect, and acquiesced in by him and by defendant. True, both might, by mutual agreement, repudiate it, but neither alone could do so. The court expressly finds that defendant performed the agreement as long as he was permitted to do so by plaintiff, and his subsequent use of the water did not destroy his right to the quantum fixed upon by mutual consent. It is the fixed policy of the law to encourage the settlement of disputes and the prevention of litigation, and when such settlement has been made, acted upon and acquiesced in, parties will not be permitted to violate the compact unless circumstances of fraud or undue influence are shown. Downing v. Murray, 113 Cal. 462, 45 Pac. 869; Pomeroy, Eq. Jurisprudence, § 850. The agreement was sufficiently pleaded and proved. The defendant was not required to elect whether he would claim title to all or only part of the water. Having been forced into court to defend his rights, he was at liberty to rely not only on his original claim of right, but upon the rights claimed under the compromise agreement. Miles y. Woodward, 115 Cal. 314, 46 Pac. 1076; Banta v. Siller, 121 Cal. 418, 53 Pac. 935. It would be strange indeed if the plaintiff, relying on his original claim and free to assail any and all rights claimed by defendant, could confine the latter to rights obtained under an agreement, which by the very commencement of the action plaintiff was attempting to repudiate. The findings are not inconsistent. The court in effect finds that plaintiff had a right to the whole of the water which right was impaired only by his voluntary act in entering into and effectuating the agreement which vested in defendant the right to one-half thereof.

The judgment is affirmed.

(44 Wash. 239)

ONTARIO LAND CO. v. YORDY et al. (Supreme Court of Washington. Oct. 27, 1906.) 1. TAXATION-TAX DEED-DESCRIPTION-SUF

FICIENCY.

The owner of land platted the same as the C. addition to a city, and the blocks were consecutively numbered, except that, where blocks 352 and 373 would ordinarily have appeared, a rectangular tract was shown, marked "Reserved," and thereafter the assessor listed for taxation what he described as blocks 352 and 373 in such addition. A tax deed describing such blocks was issued, and subsequently the one who had made the plat of the C. addition platted the rectangular tract as H.'s addition, subdividing the tract into blocks numbered from 1 to 4, inclusive. Held, that the description in the tax deed was sufficient to convey the land that would have been included in blocks 352 and 373 on the plat of the C. addition, had they been located on such plat according to their proper position.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, 1519.]

2. SAME-TAX TITLES RIGHT TO RECOVER PROPERTY SOLD-CONDITIONS PRECEDENTTENDER OF TAXES.

Under the express provisions of Ballinger's Ann. Codes & St. § 5678, no action may be commenced to recover property sold for taxes unless plaintiff tenders all taxes, penalties, and interests on the property.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1586.]

Appeal from Superior Court, Yakima County; H. B. Rigg, Judge.

Action by the Ontario Land Company against Jay Yordy and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded, with instructions to enter a decree for defendants.

Ira P. Englehart, for appellants. E. B. Preble, for respondent.

CROW, J. This action was instituted by the plaintiff, the Ontario Land Company, against the defendants Jay Yordy and Minnie E. Yordy, his wife, to recover possession of certain city lots in North Yakima. It appears that the plaintiff's grantors, Chester A. Congdon and Clara B. Congdon, being owners of the E. 1⁄2 of the S. W. 14 and the W. 1% of the S. E. 14 of section 24, in township 13 N., of range 18 E. W. M., except 10 acres belonging to one Charles M. Holton, platted the same on May 16, 1889, as Capital addition to North Yakima; that the entire tract above described was apparently platted, with the exception of the Holton 10 acres ; that through the central portion of the plat, which included a certain body of land marked "Reserved," and hereinafter mentioned, the blocks were consecutively numbered; that, where blocks numbered 352, 353, 372, and 373 would have ordinarily appeared, a rectangular tract was shown, marked "Reserved." the same being of sufficient size to include four ordinary blocks; that no explanation was afforded, either by the dedication or upon the plat, as to what was meant by the term "Reserved," nor was the use to which said tract was to be applied declared; that the assessor

87 P.-17

of Yakima county listed and appraised for taxation what he described as blocks 352 and 372 in Capital addition to North Yakima, Wash., and the same were taxed for the years 1892, 1893, 1894, and 1895; that all taxes for these years became delinquent; that the county foreclosed the same on blocks 352 and 372 of Capital addition to North Yakima; that under the foreclosure decree a tax deed was afterwards issued to the defendant Jay Yordy; that he afterwards paid all subsequent taxes levied thereon; that on May 24, 1890, after the said Congdon and wife had platted Capital addition, they deeded all of the land therein included to the plaintiff, the Ontario Land Company, but that, instead of describing the same by lots and blocks, they conveyed it as the W. 1⁄2 of the S. E. 4 and the E. 1⁄2 of the S. W. 4 of section 24, township 13 N., of range 18 E. W. M., excepting therefrom the Holton tract; that in the deed from Congdon and wife to the plaintiff no allusion whatever was made to Capital addition to North Yakima; that on September 22, 1904, after the tax deed above mentioned had been executed and delivered to the defendant Yordy, and had been recorded, the plaintiff, the Ontario Land Company, platted that portion of Capital addition marked "Reserved" as "Heerman's Addition to North Yakima," subdividing said reserved tract into 4 blocks, numbered from 1 to 4, inclusive, and each block being subdivided into 16 lots; that Yordy had then taken possession of a portion of the tract marked "Reserved," claiming the same under his tax deed; and that afterwards the plaintiff, the Ontario Land Company, instituted this action to eject him from certain lots, which it described in its complaint as being in blocks 1 and 2 of Heerman's addition, making no reference whatever to Capital addition, or any part thereof. The trial court, after making its findings of fact and conclusions of law, entered a decree in favor of plaintiff, awarding it possession, and the defendants have appealed.

The appellants contend that they are entitled under the tax deed to that portion of the land marked "Reserved," which would, by the consecutive system of numbering used in said original Capital addition plat, have constituted blocks 352 and 372; while the respondent insists that it has instituted this action to recover the possession of certain lots in Heerman's addition to North Yakima, not included in the appellants' tax deed, and that the tax deed in no way describes, nor does it identify, any land included either in Capital addition or Heerman's addition. The main issue in this case, therefore, is whether the description of the land as blocks 352 and 372 of Capital addition to North Yakima is sufficient in law to give validity to the deed. The evidence shows that the respondent had actual notice and knowledge of the fact that an attempt had been made to levy a tax upon that portion of its property marked "Reserved," and that it not only denied the valid