We have endeavored to state all the evidence bearing upon the issues, perhaps more fully than it need to have been. Findings of fact and conclusions of law were waived. We are without aid as to the view taken by the trial court upon the issues of fact presented in the record. We must, upon material questions of fact as to which there is any substantial evidence in support of the judgment, assume that the court properly found in defendant's favor. If, however, there was no evidence, or if the evidence was insufficient in support of an implied finding essential to sustain the judgment; or where the uncontroverted evidence justified such a finding in favor of plaintiff instead of defendant's favor, the judgment cannot stand. Thus, as we view the case, the vital facts upon which plaintiff relies are found set forth in paragraphs VIII, XII, and XIV of the complaint, quoted above. The evidence, in our opinion, and without substantial conflict, fully supports the averments in said paragraphs. It seems to us that the correspondence by letter between the parties considered together with the uncontroverted testimony leads to no other reasonable conclusion than that this canal project and the purpose for which the canal was to be constructed were fully understood by defendant, and that the construction was entered upon and prosecuted with reasonable diligence for nearly four years with defendant's knowledge, consent, and acquiescence, and with the understanding that the only matter to be determined was the compensation to be paid or given defendant by Miller & Lux for the right of way, and that as to this the parties anticipated no difficulty in reaching an agreement and did not make the consummation of such agreement a condition precedent to plaintiff's right to enter into possession of defendant's land, complete the canal, and operate it for the purposes for which it was designed. The questions, to our minds, are simply questions of law, namely: Do the facts and circumstances bring the case within the rule laid down in Stoner v. Zucker, 148 Cal. 516, [113 Am. St. Rep. 301, 7 Ann. Cas. 704, 83 Pac. 808], and did not the conduct of defendant amount to an executed parol license, and is not defendant estopped from interfering with the continued possession by plaintiff, and is not defendant limited to an action for compensation? A closely allied question, also, is: Should defendant be given equitable relief in view of its laches in asserting its rights? "A license is defined as a personal, revocable and unassignable privilege conferred either by writing or parol to do one or more acts on land without possessing any interest therein." (17 R. C. L. 584.) A license may be implied from the acts of the parties, from their relations, and from custom, and where the owner of land, with full knowledge of the facts, tacitly permits another to repeatedly do acts upon the land, the license may be implied from failure to object. (25 Cyc. 642.) The essential of a license that it be assented to may be shown by any acts which tend to show assent. (17 R. C. L. 572.) And the creation of a license privilege may be evidenced by acquiescence in its exercise. (Id.) A license by deed or parol, under the well-settled rule of the common law, is revocable at pleasure, unless under certain circumstances, among them, that it is executed and also unless, by reason of expenditures made by the licensee on the strength of the license it would otherwise be inequitable to permit the licensor to effect a revocation. In such case the license is irrevocable. (Id., 576, 578; Stoner v. Zucker, supra; Miller & Lux v. Kern County Land Co., 154 Cal. 785, [99 Pac. 179].) It is a familiar doctrine of laches, apart from any question of statutory limitation, that courts of equity will discourage laches and delay in the enforcement of rights, and the general rule is that nothing can call forth the court of chancery into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. (10 R. C. L. 395.) While mere lapse of time may not constitute laches, lying by and acquiescence are important factors in determining whether there has been such laches as to constitute a bar to relief in equity. (Id., 397.) With these principles before us, to what conclusion do the facts lead us in the present case? Before any work was done on the canal, defendant was notified of the project contemplated by plaintiff. (We refer to Miller & Lux and plaintiff interchangeably as the same person, for the evidence so warrants.) Defendant was informed that a right of way was desired over its land for the purpose of enabling Miller & Lux to irrigate its land without which privilege the object of the enterprise could not be effected; making no objection. 36 Cal. App.-47 to plaintiff's surveying the route for the canal, or of entering upon the work of construction in March, 1912, and with knowledge that work had begun, defendant commenced negotiations looking only, as expressed in one of its letters, to "something in exchange for this right of way which shall be commensurate with the value of the privilege you are seeking." For nearly four years these negotiations continued without result, Miller & Lux in the meantime spending large sums of money, and at no time did defendant object to plaintiff's going on with the work as originally contemplated and as defendant knew it was being done, including work of excavation on defendant's land during the year 1912 and subsequent years. Defendant had a right of action the moment plaintiff entered upon defendant's land in 1912 to construct the canal, if not sooner. As early as May 13, 1912, Miller & Lux wrote defendant, saying: "We have a large force of men, teams, etc., engaged upon this work and it is desirable that we have an understanding as early as practicable, as the construction will soon be up to your land." It seems to us that if defendant was not called upon at an earlier period to do so, it should at this time have made it clear that before extending the canal over its land the question of compensation must be settled. If defendant regarded plaintiff's operations as an unwarranted trespass upon its rights and without its consent, in fairness to plaintiff, defendant should have warned plaintiff to desist from encroaching upon its land pending settlement of the question of compensation. Defendant was informed, early in the correspondence, that the project would entail an expenditure of one hundred thousand dollars. It stood by and saw eighty thousand dollars of this sum expended and then for the first time made known its opposition. It seems to us that every principle of equity forbids the court of chancery to aid defendant, and that the injunction granted at defendant's request is not supported by the evidence. Its remedy is at law for damages. Some testimony was introduced by defendant tending to show that the taking of water from the San Joaquin River would interfere with its use by previous appropriators, and it could be used on much better land than that proposed to be irrigated by Miller & Lux, and that the dependable water of that river was already fully appropriated. Also that in oper ating the canal defendant would be damaged by overflow and seepage of water on to defendant's land. We have not considered these phases of the case, as we regard them as immaterial. The judgment is reversed. Hart, J., and Burnett, 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 June 6, 1918. Angellotti, C. J., Sloss, J., and Wilbur, J., dissented from the order denying a hearing in the supreme court. [Crim. No. 423. Third Appellate District.-April 9, 1918.] THE PEOPLE, Respondent, v. J. H. CLARK, Appellant. CRIMINAL LAW-APPEAL-FAILURE TO APPEAR OR FILE BRIEFS SUBMISSION OF CAUSE ON RECORD.-Where on an appeal from a judgment in a criminal action no briefs are filed or appearance made on behalf of appellant, the attorney-general may move to submit the case for decision on the record. APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge. The facts are stated in the opinion of the court. Martin I. Welsh, and Ralph H. Lewis, for Appellant. U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent. THE COURT.-Defendant appealed to this court from the judgment of the superior court of the county of Sacramento, under which he was sentenced to serve a term in state's prison, having previously been convicted by a jury of the crime of grand larceny. The clerk's transcript and the reporter's transcript were filed in this court on the thirteenth day of November, 1917. No briefs have been filed and the time for the filing thereof has not been extended. The case was placed upon the April calendar of this court, at which time there was no appearance on behalf of appellant, and the attorney-general moved that it be submitted on the record. On the authority of People v. Wagner, ante, p. 41, [171 Pac. 699], and the cases therein cited, the judgment is affirmed. [Civ. No. 2392. First Appellate District.-April 9, 1918.] SAMUEL D. MAYER, Appellant, V. ANDERSON et al., Respondents. STERLING NONSUIT EVIDENCE-INFERENCES.-In deciding a motion for a nonsuit every favorable inference fairly deducible from the evidence produced must be considered as a fact proved in favor of the plaintiff. NEGLIGENCE COLLISION OF AUTOMOBILE WITH PEDESTRIAN ON CONGESTED CITY STREET-EVIDENCE-PROPER NONSUIT.-In an action for damages for personal injuries received by a pedestrian on a city street from a collision with an automobile, a nonsuit was properly granted on the ground of contributory negligence where the accident happened at one of the busiest crossings at an hour when traffic was heavy, and it was shown that the plaintiff walked out upon the crossing looking straight ahead without glancing to either side, and was absolutely oblivious to the proximity of the car until the moment of the collision, at which time he had traversed about threequarters of the distance across the street. ID. LAST CLEAR CHANCE DOCTRINE INAPPLICABLE.-In such an action, where it is clear from the evidence that the chauffeur did not discover that the plaintiff was or would be in a perilous position in time to avoid the accident, and the negligence of the driver, if any, was not subsequent to and independent of the continuing negligence of the plaintiff, but was contemporaneous with it, the doctrine of "last clear chance" has no application. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge. The facts are stated in the opinion of the court. |