in the defendant's presence and that the Jug then contained whisky.

a reasonable doubt that the defendant did commit the act charged, then I charge you that it is your duty to convict, although such evidence may be of a circumstantial nature."

Appellant claims that this instruction was not warranted by the facts in the case, and that it implied "that the jury may act on less than convincing evidence or without the moral certainty required by law."

[9-11] The instruction was not only pertinent to the evidence, but it contains a correct statement of the law. Nor does it warrant the implication that the jury were authorized to convict on evidence not sufficiently convincing to show the defendant's guilt to a moral certainty. Of course, the objection that the instruction implies that the jury may "act on less than convincing evidence" really means nothing; for it is the duty of a jury to act on (or consider) all the evidence submitted to them, and this they always presumptively do whether they convict or acquit.

[6, 7] Defendant complains of some other rulings respecting the evidence, the objections being that by them the court permitted the district attorney to ask one of his witnesses leading questions and to ask questions upon the assumption that certain facts not in proof had in fact been shown. Also it is objected that the court erred in refusing to permit Dan Bliss, who testified for the defendant, and who, as seen, purchased and had left at Zecca's store the whisky for defendant, to testify as to whether the de fendant, previously to the purchase, said to the witness anything "about your obtaining some whisky for his (defendant's) home." The defendant could not have suffered any damage from the leading questions referred to. The witness to whom they were put was one of the parties who were with the accused when whisky was drunk from his jug, and he appeared to be hostile to the prosecution --that is, inclined to tell as little as he actually knew of the matter as possible. A witness in that attitude of mind toward the party calling him would not be likely to tell an untrue story favorable to such party merely because questions suggestive of his answers were propounded to him. The objection to the question by defendant's counsel to Daniel Bliss calling for a declaration by defendant that the liquor he requested said Daniel to procure for him was to be taken to and used at his (defendant's) home was prop-owned a demijohn of whisky and placed it in a erly sustained on the ground that it was selfserving.

There are very many other assignments involving challenges to the soundness of rulings upon the evidence, but an examination of these has convinced us that they possess no force.

The following instruction, given to the jury, is also complained of:

"I instruct you that it is not necessary that the evidence should show that the defendant personally handed this demijohn of whisky, if such it was, to George Normile, Dan Rogers or any other person who then and there drank thereof, to warrant you in finding the defendant guilty of the charge alleged in the information; but it is enough if the evidence shows beyond a reasonable doubt that the defendant

public place and in the immediate presence of said men, with the intention that they should drink thereof, and that they or one or more of stood in their immediate presence and saw said men, or some of them, drink thereof, and encouraged or asked them to drink thereof."

them did drink thereof or that the defendant

[8] The objection that the district attor- That instruction corresponds with the conney, in his argument to the jury, transcend-struction above given of the Local Option ed the record, and thus brought into it mat-Law upon which the information against the ters calculated to prejudice the defendant, accused is based, and therefore nothing more is not well taken. This objection arises need be said about it. from the reference to by that officer and his emphasis of the circumstance that, although the stage on which Daniel Bliss carried the suit case containing the jug of whisky passed near the home of the defendant, the whisky was not left there, but taken on to the store of Zecca. This was an important circumstance, was shown by the evidence to have occurred, and, of course, the district attorney was clearly within his rights in making the most out of it in argument that the circumstance would legitimately justify. In its instructions the court, after explaining the difference between direct and circumstantial evidence, told the jury:

"There is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence. All that is required is this: if the testimony is sufficient to convince you as reasonable men beyond

The court modified two instructions proposed by the defendant-one defining the word "gift" and the other defining the word "distribute"-by adding thereto substantially the language which the instruction last above considered contained, which, in effect, is as follows: That if the defendant knew that any person or persons were drinking or did drink from the jug in question, and, so knowing that fact, acquiesced in, consented to, or encouraged such person or persons to drink from said jug, in that case he would be guilty, although he did not personally hand or deliver said jug to such person or persons. What we have said of the complaint against the instruction last above disposed of applies to the objection to the one in hand.

We have now considered herein all the objections against the result arrived at below

(182 P.)

which in our judgment call for special no- † create an estate less than a fee in land taken tice, and our conclusion is that no substantial legal reason has been shown for disturbing the verdict.

Where the owner of land conveyed to a railroad an easement for years for a right of way, and the grantee railroad was succeeded by (District Court of Appeal, First District, Divi- another, such other road was a privy to the sion 1, California. April 21, 1919. Rehear-contract between the grantor and its predecesing Denied May 19, 1919; Denied by Supreme Court June 19, 1919.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

of by some subsequent act, or event, to wit, | Burnett v. Piercy, 149 Cal. 178, 86 Pac. 603; 14 the ceasing of the legal existence of the gran- Cyc. 1161; Pavkovich v. Southern Pac. Co., 150 tee; that, the land being held upon a condi- Cal. 39, 87 Pac. 1097." tion subsequent, it required some act on the part of the person entitled to take advantage of the forfeiture; that there has been no act of Hayward, or of any of his grantees, indicative of a purpose to claim by reason of a breach of condition subsequent; that the legal title to the land, therefore, was not in plaintiff's assignor after the breach or the time of the commencement of the ac

tion.

It further appears from the complaint and the evidence that on the 8th day of September, 1908, Emma Rose, then owner, by mesne conveyances from said Hayward, of the land here involved, which was subject to the estate conveyed by Hayward to the San Francisco & San Jose Railroad Company, she being the owner, and entitled to all of the interest, estate in remainder, and reversion, Furthermore, the appellant contends that in the said real property so reserved by Haythe grant in question, being made to the San ward in the deed of June 6, 1862, sold and Francisco & San Jose Railroad Company conveyed to the East San Mateo Land Com"during the legal existence of said company, pany all her right, title, and interest in and and reverting in like manner at the expira- to the real property, and in and to the intion of the legal existence of said company," terest, estate in remainder, and reversion and the San Francisco & San Jose Railroad therein reserved. Appellant contends that Company having been consolidated with the by this deed the land company did not be Southern Pacific Railroad Company on the come the owner of the land under the Emma 11th day of October, 1870, the legal exist- Rose deed. ence of the San Francisco & San Jose Rail

road Company terminated at that moment, and therefore the plaintiff's claim is stale and barred by the various provisions of the

statute of limitations.

[2] The effect of this deed was before this court on the former appeal. (East San Mateo Land Co. v. Southern Pacific Railroad Co., supra), where many of the objections now presented on this appeal were urged on the attention of the court. While the effect of the document as evidentiary matter was not then being considered, the provisions of the deed were given interpretation, and the court said:

"No question is here presented of a breach of any condition subsequent. The right here claimed is based upon the estate in reversion to take effect in possession on the expiration of the particular estate granted by the deed. There is a broad distinction between this right and one based upon forfeiture and re-entry for breach of a condition subsequent. Board of Chosen Freeholders v. Buck, 79 N. J. Eq. 472, 82 Atl. 418. The deed in question, it is true, created certain conditions subsequent, and provided upon a breach of any of the conditions that the estate conveyed should cease and determine; but, as we have seen, it also contained the additional clause: 'And shall in like manner at the expiration of the legal existence of said company revert to said party of the first part, his heirs or assigns, anything herein contained to the contrary notwithstanding.' Nothing could be added to more clearly express the intention of the grantor.

"The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.' Civ. Code, § 1638. It seems plain to us, therefore, that the duration of the estate or easement granted was definite and precise, and was one limited for years and not in fee. Robinson v. Missisquoi R. R. Co., 59 Vt. 426, 10 Atl. 522; Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049; Weller v. Brown, 160 Cal. 515, 117 Pac. 517;

[3] This same deed was likewise before this court on the former appeal, where, "taking it by its four corners," it was said (without here quoting the reasons therein given for the opinion):

"Equally clear is the intention of the grantor, Emma Rose, in the character and quantity of the estate conveyed by her to the East San Mateo Land Company, the plaintiff. There can be no question as to the intention of Emma Rose to convey to plaintiff by her deed the reversionary interest reserved by Hayward from the San Francisco & San Jose Railroad Company and to which she had succeeded. Such intention is clearly expressed in the explanatory clause just quoted. The reservation of the 21 excepted parcels was beyond all doubt for the purpose of saving herself harmless from any liability upon the warranties implied from the form of her deed, in view of the previous conveyance of different parcels or interests once forming a part of the tract covered by her present conveyance, and perhaps also because it was deemed that this was the simplest and most convenient manner to describe the land to be conveyed. That she intended to convey all of the right, title, and interest that she owned in the land is plainly evident." 30 Cal. App. 223, 157 Pac.

634.

The next point urged by the appellant upon this appeal was, in substance and effect, urged before, to wit, that as Alvinza Hayward, the owner of the land described in the amended complaint at the time of the entry by his grantee, was entitled to damages, which right was his personal property, such right has not passed to any grantee or successor of Hayward by reason of the conveyance of the real property. We do not understand this to be an action for damages, accruing at the time the land was taken, but rather an action by the reversioner to recover compensation for the appropriation and the continued use and occupation by defend

ant of the land after the expiration of the to bring to the notice of the court, and the estate granted.

opposite party, matters which occurred after [4, 5] We quote from our former decision: the commencement of the action, and which "It is true that where land has been taken for do, or may, affect the rights asserted, and a public use without compensation being first the rule asked in the action, as originally made, and its continued possession is necessary instituted. California, etc., Co. v. Schiappa. to such use, the owner cannot recover posses- Pietra, 151 Cal. 742, 91 Pac. 593. The only sion of the land itself, but can only compel pay- new matter set up in the supplemental comment for the same, and that the right to com- plaint related to the assignment, by which pensation accrues at the time the land is taken, the substituted plaintiff became entitled to and belongs to the owner at the time of the taking; also that this right to compensation maintain this action, and obtain the relief is a personal one which does not run with the demanded in the action, as originally instiland, nor does it pass by conveyance thereof tuted, which was compensation for the propafter the right accrues. These doctrines, how-erty held by defendant. An examination of ever, in no way affect or abridge the right of the record, however, discloses that in both railroad corporations to enter into a binding the amended and supplemental complaints obligation or contract with reference to land there is a sufficient allegation of nonpayment. taken by them for rights of way, and such agreements when made stand on the same footing as any other contract for the conveyance of land. Lewis on Eminent Domain (3d Ed.) §§ 462, 464. In such cases public policy does not enter into it, nor is it at all concerned with the private contracts of railroads unless they interfere with the public welfare. 2 Elliott on Railroads (2d Ed.) 934. A railroad, therefore, may accept a conveyance of land upon any condition that may lawfully be annexed to an ordinary grant; and such a contract may create an estate less than a fee in land taken for a right of way. The contract here provided for a limited estate only. If at the expiration of the estate granted the land was necessary for the railroad for railroad purposes, and the corporation or its successor elected to continue its use for a right of way, it could do so by compensating the reversioner. Otherwise it nust abandon this portion of its right of way and surrender possession to the owner of the estate in reversion. Pool v. Butler, 141 Cal. 46-49, 74 Pac. 444; McCowen v. Pew, 153 Cal. 735, 744, 15 Ann. Cas. 630, 21 L. R. A. (N. S.) S00, 96 Pac. 893: Gurnsey v. Northern California Power Co., 160 Cal. 699, 36 L. R. A. (N. S.) 185, 117 Pac. 906.

If it elected to continue in the use after the eighteenth day of August, 1910, the time limited by the grant, the owner of the estate in reversion was entitled to compensation at that time."

[6] Our former decision, to the effect that, "if at the expiration of the estate granted the land was necessary * for railroad purposes, and the corporation or its successors elected to continue its use for a right of way, it could do so by compensating the reversioner," disposes of appellant's next contention, that defendant in the present action was not a privy to the contract between Hayward and the San Francisco & San Jose Railroad Company.

[7] Appellant contends that in the supplemental complaint there is no allegation of nonpayment; that, by reason of this failure to allege that defendant did not pay the present plaintiff, no cause of action is stated. Appellant fails to note the distinction between a complaint (or one as amended) and a supplemental complaint. They are to be considered as separate pleadings, the office of the supplemental complaint being merely

The various assignments by which plaintiff became substituted as plaintiff in the action are sufficiently pleaded. As the only effect of these instruments was to enable plaintiff, after substitution, to maintain the action in accordance with the relief therein sought, we do not need to give further consideration thereto.

[8, 9] The defendant in the court below sought to show forfeiture of the charter of the San Francisco & San Jose Railroad Company, in the year 1905, by reason of the failure of the corporation to pay its franchise tax for that year. It called a deputy of the secretary of state, who testified that he had made due search of the records in the office of the secretary of state for the purpose, and found that no tax had been paid by the corporation for that year. On motion of the plaintiff, this testimony was subsequently stricken out. The testimony was incompetent for the purpose offered, and was properly excluded from the record. Kehrlein-Swinerton Const. Co. v. Rapken, 30 Cal. App. 11, 156 Pac. 972. In view of the decision of this court, on the former appeal, and our present holding, relative to the effect of the Hayward deed, the evidence was irrelevant to any issue of the case. The subsequent refusal of the court to instruct the jury on the question of the forfeiture of the franchise by the company in question was correct. What has heretofore been said in this opinion sufficiently answers the point, made by appellant, that the evidence is insufficient to support the verdict and that the court committed error in the admission of evidence.

Appellant makes some 16 specifications of error in the action of the trial court in giving and refusing certain instructions. We have carefully examined each of these speckfications and considered the argument in support thereof. We find no merit in any of them. The charge as given, considered as a whole, was a complete and fair statement of the law in the case. The instructions refused were not proper.

The other points made upon the appeal