and this, as we have seen, he is not alleged in the complaint to have done.

It follows that the complaint herein was insufficient in this respect to state a cause of action, and hence that the trial court was in error in overruling the defendant's demurrer upon that ground.

The second point urged by the appellant herein is that there was no sufficient evidence to sustain the findings of the trial court to the effect that the appellant, L. W. Dake, authorized Max P. Fries, as his agent, to complete a pending negotiation with the plaintiff to the extent of binding the former to the alternative of paying the sum of two thousand seven hundred dollars, or of inserting in the agreement which he had already executed the words "or $2,700 cash." We have scrutinized this record carefully for the purpose of discovering such evidence if it exists sufficient to sustain the finding of the trial court in this regard, and have been unable to do so. The plaintiff and the defendant, Dake, never met prior to the execution of the writing in question, nor in fact thereafter until the time of the trial of the case. The plaintiff himself expressly deposes that the terms and conditions of the agreement between himself and Max P. Fries, acting for the National Borax Company, had been fully understood and agreed to prior to February 24, 1913, the date when Dake executed the writing in the form in which it was at the time he signed the same and prior to the filling in of its blank spaces and to the interlineation of the words "or $2,700 cash." The only witness who testified on the trial to the understanding between Dake and Fries respecting what the agreement was or was to be when fully filled in is the appellant Dake himself, who swears that there never was any understanding or agreement on his part to pay the sum of two thousand seven hundred dollars to the plaintiff, nor did Fries have any authority from him to insert the words "or $2,700 cash" in the body of the written agreement. The only evidence to which our attention has been directed which countervails this showing is that of plaintiff's counsel and of one or two of his other witnesses respecting conversations had with the defendant Dake after the date of the maturity of said agreement and shortly before the institution of this action. By reference to these conversations the utmost extent to which the alleged admissions of the defendant go is his admission that he had au

thorized Fries to "fill in the agreement. Such an admission is clearly nothing more than an admission that Fries had authority from Dake to fill in the blank spaces in the agreement, but not to interlineate therein such material matter as the phrase "or $2,700 cash," for the insertion of which not only was there no blank space in the document, but clearly such an addition was not contemplated by its phraseology or form. The interlineation of these words in this writing obviously was an afterthought to its creation, and also obviously works a most material alteration in its terms; and having been confessedly inserted after the execution of the writing by Dake, the burden of accounting for it was cast upon the plaintiff producing the writing and relying upon it as genuine under the express terms of section 1982 of the Code of Civil Procedure. In such case the proof that the alteration in the body and terms of the instrument was authorized by the party affected by it must be clear and conclusive in order that such party may be bound thereby. (Walsh v. Hunt, 120 Cal. 46, [39 L. R. A. 697, 52 Pac. 115].) The evidence in this case upon which the plaintiff relies to hold the appellant liable upon this altered writing falls far short of this measure, and is clearly insufficient, in our opinion, to sustain the foregoing finding of the trial court.

It follows that for this reason also the contention of the appellant Dake upon this appeal must be sustained.

It is unnecessary to discuss the other points presented upon the appeal from the order denying a new trial. Judgment and order reversed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court. after judgment in the district court of appeal, was denied by the supreme court on February 14, 1918.

[Civ. No. 1719. Third Appellate District.-December 17, 1917.] HERMAN F. STRECKER, Appellant, v. A. GAUL,

Respondent.

DAMAGES TORTS-PROSPECTIVE PROFITS.-Under section 3333 of the Civil Code, defining the measure of damages for the breach of an obligation not arising from contract, prospective profits are allowable as damages for tort, but they must be clear, proximate, and the natural results of the wrong, and must be confined to the principal thing complained of and to its naturally attendant consequences. ID.-FLOODING OF GROWING CROP-MEASURE OF DAMAGES.-In an action for damages to a growing crop of hay from an overflow caused by the wrongful obstruction of a natural water-way, the measure of damages is the market value of the crop at plaintiff's river landing at harvest time, less the cost of cutting, baling, and hauling the hay to the landing.

ID.-ABATEMENT OF NUISANCE AND DAMAGES-APPEAL

PART REVERSAL

OF JUDGMENT.-In an action for the abatement of a nuisance and for damages to a growing crop of hay, the judgment abating the nuisance and awarding plaintiff nominal damages will not be wholly reversed on appeal from the order denying a new trial, where the appellate court finds that the trial court erroneously determined the evidence was insufficient to justify an award of substantial damages, but reversed as to the part awarding nominal damages with directions to make findings on that issue and to amend the judg ment accordingly.

APPEAL from a judgment of the Superior Court of San Joaquin County. Frank H. Smith and J. A. Plummer, Judges.

The facts are stated in the opinion of the court.

A. H. Ashley, for Appellant.

S. M. Spurrier, for Respondent.

CHIPMAN, P. J.-This action is brought by plaintiff for the abatement of a nuisance and judgment for damages caused by the erection of said nuisance. The court found that the obstruction complained of constituted a nuisance and entered judgment for its abatement, but denied other than nominal damages of one dollar. Plaintiff appeals from the

order denying his motion for a new trial and brings the record here upon bill of exceptions.

It appears that plaintiff was, at the commencement of the action, the owner of certain farming lands situated on Roberts Island, San Joaquin County, and that Johanna F. Krenz was the owner of adjacent lands which she had leased to defendant Gaul, who was, prior to and at the time of the action in possession and under full control thereof, and defendant admitted at the trial that he was solely and exclusively responsible for all the acts complained of in the complaint.

The course of the proceedings in this action was somewhat unusual and should be here stated. The complaint was filed March 21, 1908, and the answer June 3, 1908, and the action came on for trial October 19, 1909, before the Honorable C. W. Norton, as judge, and the testimony was completed November 22, 1909. It was thereafter ordered to be submitted on briefs. Frank D. Nicol, Esq., was the attorney for defendant, in sole charge of the action for him, and the intervening death of Mr. Nicol halted further proceedings until January 6, 1913, when the condition of the case was brought to the attention of the court, and Messrs. Nutter & Orr, successors to Nicol & Orr, disclaimed any further employment in the case, and the cause was set for retrial on February 6, 1913. On February 11, 1913, A. L. Levinsky, Esq., was substituted as attorney for defendant and Honorable C. W. Norton, who presided as trial judge, being incapacitated by illness, on February 21, 1913, "a written stipulation for the submission of this cause for decision, signed by the attorneys for the plaintiff and the defendant A. Gaul, was filed herein. Thereby it was stipulated that this action be submitted for decision to the undersigned Judges Frank H. Smith and J. A. Plummer upon the pleadings; the record and files herein; and the evidence (including exhibits and stipulations) contained in, or identified by, the 239 page transcript of the evidence taken at said trial and thereafter transcribed by Court Reporter Edgar W. Butters (each party reserving and preserving all rights, objections, and exceptions as shown by said reporter's transcript); and upon briefs in behalf of the respective parties. Said stipulation further provided that said judges might go upon and view the lands and premises involved, in such manner and with such aid as they deemed advisable, helpful, and just; and that said action should be

dismissed as to the defendants sued herein by the fictitious names of Mary Moe and John Doe. The said two judges having gone upon and viewed said lands and premises, and considered the pleadings, records, and files herein, the reporter's transcript of said trial, the exhibits, and the briefs of the counsel for the respective parties, and the cause being submitted, the court now makes, upon the issues presented by the pleadings, the following findings of facts." The court found that at the times mentioned in the complaint there has been a natural way for seepage-water and rain-water to pass through the lands of the plaintiff and through the lands of Johanna F. Krenz, mentioned in the complaint, in a general northwesterly direction and through the lands controlled by the defendant Gaul. That said natural way of said seepage and rain-water so passing through the said lands of plaintiff and said lands controlled by defendant Gaul "was, in its natural condition, sufficient to conduct and carry away nearly all of the seepage-waters and rain-waters that accumulated upon the lands of" certain owners (mentioning lands of various owners as stated in the complaint), "and the lands of plaintiff." That by said natural way and depression all of the said waters which so accumulated on said lands were naturally conducted and carried away from the lands of plaintiff except a small amount estimated at thirty-four acres, and was also conducted across a portion of the lands of said Johanna F. Krenz, "and there remained until absorbed by the earth or evaporated." That by means of said natural way said seepage and rain waters were prevented from accumulating and remaining on, and from flooding, said lands of the plaintiff other than said thirty-four acres. "That on March 22, 1907, and before the construction of the obstruction hereinafter mentioned, the San Joaquin River had so risen, and rain-water had so fallen, that scepage and rain waters naturally accumulated in, and were flowing through, said natural water-way (and were thereby being drained upon the lands of plaintiff into said natural way); and from said lands of plaintiff were naturally flowing and naturally being drained to and upon said land of said Johanna F. Krenz controlled by said Gaul." That on said day last mentioned defendant constructed and ever since has kept maintained upon the lands of said Johanna F. Krenz "a dam or embankment across the bed and channel of said natural water-way, of suffi