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tract. Here we have a temporary interruption only of plaintiff's relations with her family and friends and a short postponement of her college course, and while the complaint is eloquent, not to say verbose, in its recital of the detriment suffered by plaintiff, it is apparent that the only real loss suffered by her was the death of her father in her absence, an occurrence which certainly was not within the contemplation of the parties when the contract was made. The advantages plaintiff received in being afforded an opportunity to travel in Europe would, in the mind of any normal young woman, be more than sufficient compensation for her temporary absence from home and friends, and there could be no more fitting preliminary to a college course than a trip to Europe. The services rendered by plaintiff as a traveling companion for such a short period were slight, and absolutely disproportionate to the value of the estate claimed.

Upon the oral argument counsel, evidently recognizing the weakness of their claim to the whole estate, urged that the contract should be enforced as to the "jewelry and personal effects" set forth in the schedule, but in the absence of any allegation that these articles were of such a rare nature that they could not be duplicated, or were possessed of a peculiar sentimental value, or pretium affectionis, the complaint is insufficient in equity. An award in an action at law of damages to the amount of the intrinsic value of the jewelry and personal effects would have adequately compensated plaintiff for the breach of the contract.

Judgment affirmed.

Kerrigan, J., and Beasly, J., pro tem., concurred.

[Civ. No. 1801. Third Appellate District.-April 9, 1918.] GRAVELLY FORD CANAL COMPANY (a Corporation), Appellant, v. POPE & TALBOT LAND COMPANY (a Corporation), Respondent.

EXECUTED PAROL LICENSE-CONSTRUCTION OF CANAL-FAILURE TO OB JECT-EXPENDITURES IN CONSTRUCTION.-Where a land company was advised by a canal corporation that a right of way was desired over its land for canal purposes, without which privilege the project could not be effected, and made no objection to the surveying of the route for the canal, or of entering upon the work of construction, and with knowledge that the work had begun, commenced negotiations to fix the compensation for the privilege, and such negotiations were thereafter continued for nearly four years without result, the canal corporation in the meantime spending eighty thousand dollars, and the land owner at no time objecting to the prosecution of the work until such amount was expended, the conduct of the land owner amounts to an executed parol license, and it is estopped from enjoining the canal corporation from proceeding with the work, and is limited to an action at law for damages.

ID.-IRREVOCABLE LICENSE.-A license by deed or parol is revocable at pleasure, except under certain circumstances, such as, where it is executed, or where by reason of expenditures made by the licensee on the strength of the license, it would be inequitable to permit a revocation.

LACHES LYING BY AND ACQUIESCENCE.-While mere lapse of time may not constitute laches, lying by and acquiescence are important fac tors in determining whether there has been such laches as to constitute a bar to relief in equity.

APPEAL from a judgment of the Superior Court of Madera County. Wm. M. Conley, Judge.

The facts are stated in the opinion of the court.

Edward F. Treadwell, for Appellant.

J. W. Dorsey, and W. E. Cashman, for Respondent.

CHIPMAN, P. J.-This is an appeal from the final judgment of the superior court of Madera County, in favor of defendant and against plaintiff, and granting a permanent injunction. The parties to the action are the same as in No.

1802, recently decided by this court (ante, p. 556, [178 Pac. 150]), wherein plaintiff sought to condemn a right of way over defendant's land under the act of 1911. (Stats. 1911, p. 1407.) In that case the lower court sustained plaintiff's right to condemn. Upon review we were constrained to reverse the judgment. The purpose for which plaintiff was organized and the necessity for a right of way over defendant's land were fully set forth in that action and need not be here repeated. It is probable that the learned trial judge, who held plaintiff entitled to condemn a right of way under the act of 1911, granted the injunction prayed for by defendent in the present action on its cross-complaint, for the reason that plaintiff should be restricted to its right to condemn. On the other hand, plaintiff believing it had the right to proceed with the work of constructing its canal, did not rely alone upon its action to condemn but went forward with its work on the assumption that defendant had consented thereto. Being interrupted in the work by defendant, plaintiff sought to enjoin defendant from interference therewith. Defendant answered and filed a cross-complaint seeking to enjoin plaintiff from proceeding with said work. At the hearing the court granted the injunction prayed for by defendant.

In its complaint, plaintiff alleged, among other facts, the following: That plaintiff is a mutual water company, organized for the purpose of supplying water to its stockholders; that it posted and recorded notice of appropriation of the waters of the San Joaquin River in May, 1912, and surveyed the line of its canal from the San Joaquin River to Fresno River; that a right of way two hundred feet wide is necessary; that plaintiff immediately began the construction of the canal and expended over forty-eight thousand dollars in the construction thereof; that as surveyed, it runs through three sections of defendant's land and describes its location through those sections. Paragraph VIII of the complaint is as follows: "That during all of the times herein mentioned the said defendant well knew of the plans and surveys of the said plaintiff and during the year 1912 the said plaintiff.in the construction of the said canal entered into and upon the said lands of the said defendant and laid out and surveyed the said canal through the said lands, and in that year commenced the construction of said canal through the said lands, and from time to time has since continued work upon the

said canal through the lands of the defendant aforesaid, and has partially constructed the said canal through the said lands for a distance of approximately three (3) miles in length, and has expended on the portion of said canal passing through the defendant's land upwards of three thousand dollars, and the said plaintiff so entered into and upon the said lands and did the work with the knowledge, consent and acquiescence of the said defendant, and the said defendant at all times knew that the said plaintiff was constructing the said canal on the said lands of defendant, and was spending the money aforesaid, and the said plaintiff is still in possession of said strip of land through the said lands of defendant aforesaid, and is now actually engaged in completing the construction of the said canal through the same."

It is also alleged that defendant's said land is situated midway between the termini of the canal and that the canal is designed to irrigate seventeen thousand acres of land. Paragraph XII is as follows: "That ever since the said plaintiff surveyed the said canal through the said land of defendant, and ever since the said plaintiff commenced the construction of the said canal through the said land of defendant, the said plaintiff and the said defendant Pope & Talbot Land Company have been engaged in negotiations looking to the fixing of the damages which would be caused to the said defendant and its said lands by the occupation of the said. right of way in the construction and operation of said canal, and looking to the fixing of the amount to be paid the said defendant therefor, and at all times the said defendant permitted the said plaintiff to continue to construct the said canal through the said land relying upon the representations of the said defendant that the said matters would be amicably adjusted and agreed to, and at all times the said plaintiff in constructing the said canal through the said lands relied. upon the consent of the said defendant that it might enter upon said land and construct the said canal, and relied upon the representations of the said defendant that said matters of damages and compensation would be amicably settled and adjusted between them, and also, on the faith of the license so granted by the said defendant to said plaintiff to enter upon the said lands and construct said canal, the said plaintiff also constructed other portions of the said canal both north and south of the lands of the said defendant, and which

without the said canal and right of way through the said land of defendants would be useless and of no value, and during all of said time the said defendant had full knowledge of all of the things aforesaid and never at any time until the month of December, 1916, in any way objected to the occupation of the said right of way or to the construction of the said canal through the said land."

Paragraph XIV is as follows: "That the said plaintiff has at all times been and still is ready, able and willing to pay the said defendant just compensation for the right of way sought to be acquired through its lands for the canal aforesaid, and all damages which will be caused to the said defendant and its said land by the construction, maintenance and operation of the said canal under and upon the same, and said plaintiff hereby offers and agrees to pay the same, but the said defendant now refuses to fix or agree upon the amount of the said compensation or damages or either thereof, and notwithstanding the willingness of the said plaintiff to pay such compensation and damages the said defendant now does and ever since the month of December, 1916, has refused to recognize the right of the said plaintiff to continue in the occupation of the said right of way or to continue in the construction and completion of the said canal aforesaid through the lands of said defendant."

It is further alleged that owing to the topography of the country, the canal is located at the only practicable place; that defendant is the owner of the land subject to plaintiff's right to occupy the canal across the same; that plaintiff is in actual possession of the land and defendant is estopped from interfering therewith. The prayer is that defendant be enjoined from interfering with the continued occupation of the canal and for damages.

A demurrer to the complaint was overruled and defendant answered in effect denying substantially all the allegations of the complaint. The answer also sets up certain affirmative defenses; that the entire natural flow of the San Joaquin River has been and must be continued to be used by prior appropriators and the use of water through said canal would result in depriving other and richer land of water; that Miller & Lux (Incorporated) is the sole owner of the capital stock of plaintiff, to whom alone defendant has power to distribute water; that there is no appropriable water at the

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