watering places, but lived elsewhere, and no ownership in the land over which the cattle grazed appears to have been asserted by the owners of the herds.

For many years prior to 1893 one Durnal had grazed his cattle cver that desert range. He made his headquarters at Flowing Wells, which was the name of a watering place and not a town. At this place, scattered over about two acres of ground, were eight or nine springs of water. In order to make the water better available for supplying the cattle, a square wooden pipe of about four by four inches in dimensions was made by nailing four boards together. One length of this pipe was thrust down into the spring and by that means the water was raised above the surface of the ground and conducted into a trough. Durnal built a rough lumber barn with a shake roof, also a small cabin, about a mile from the wells, and at another point several miles distant he had a stock corral, a second cabin and a pump. His place of residence was at Tehachapi. In the year mentioned, one Downey, on behalf of himself, W. E. Boren, plaintiff W. H. Robinson and the defendant Bledsoe, purchased from Durnal for the sum of $150 all of the improvements which he had placed at Flowing Wells, and also similar property at other points. Each of the persons mentioned were cattle raisers who resided along the Mojave river many miles away. From thence on the four men used Flowing Wells for rodeo purposes. They shared together the use of the improvements, but they had no joint interest in cattle, as each man severally owned and managed his herd. They moved the barn and cabin just mentioned to a point close to the springs. In 1905, Boren and Downey sold their cattle to plaintiff Bennette, and at the same time sold their interest in the various improvements used by them on the desert, including the Flowing Wells property. Plaintiff Bennette and defendant Bledsoe were not on friendly terms because of some ancient grudge existing between them, and from the time that the former bought the cattle and interests of Boren and Downey, when the two men met at the rodeos there was no interchange of friendly converse. Each ignored the presence of the other. In 1906, Robinson proposed to the defendant that a fence be built at Flowing Wells for the purpose of forming an enclosure within which cattle might be kept when desired. Defendant stated that he would be unable to assist in the building of the fence, but would pay his rroportion of the cost of one, if one was built by the other two men. Robinson hired some men and they, with Bennette and a son of Robinson, put up a pasture fence enclosing about thirty acres. Robinson presented a bill to defendant for the amount which he claimed to be the proportion of the cost of building the fence chargeable to defendant. Bledsoe refused to pay this bill on the ground that the amount charged for labor was excessive and the account remained unsettled. Because of Bledsoe's refusal to discharge this alleged indebtedness plaintiffs refused to allow him to use the pasture, making their permission for such use conditional upon the payment of the account. The trial court found these facts as to the building of the corral and the exclusion of defendant from the use of it. It appears that none

on

of the defendants knew to whom the land belonged which they were grazing their cattle over and upon which the Flowing Wells springs were located; they made no claim to the ownership of it. The witness Downey, the predecessor in interest of Bennette, testifying for the plaintiffs, said: "I never claimed any title to that land. I rather thought that I had a right to water my cattle there. Everybody else had the same right; they enjoyed the same right. I did not claim the right to enjoy the exclusive use of that water . . . I have seen as many as twenty men the ground there, different owners and their helpers; they would all in common, and in connection with myself, Bledsoe, Robinson and Boren, use the place as a round-up place, and for cattle purposes-drinking. When I stated a moment ago that we all used them in common, I referred to the water and corral." These statements of the witness describe correctly the general condition as to the rights assumed by the cattle owners on that range. In 1908, defendant caused surveys to be run about some 280 acres of the land, including that upon which Flowing Wells was located. He learned that the land was a part of the school lands of the state of California, and thereupon he made application to purchase the 280 acres. His application was approved and in November, 1908, he received his certificate of purchase. He next gave notice of his ownership to the plaintiffs, and this notice required that if they (the plaintiffs) desired to continue the use of the wells, they must arrange for such use by lease. In this notice he offered to pay any sums that might be reasonable for plaintiffs' share in the improvements. Plaintiffs refused to lease from defendant, and shortly thereafter brought this suit.

[1] The correctness of the proposition, as a general rule, that a tenant in common, occupying as he is presumed to, relations of trust and confidence toward his cotenants, may not acquire an adverse title to that under which possession of the property is held, without being charged as a trustee in the holding thereof for the joint benefit of the cotenancy, is not disputed. There are two principal questions presented by this appeal, to-wit: 1. Whether the relation of cotenants existed between plaintiffs and defendant in their possession of the land which defendant purchased. 2. Assuming that such relation did exist, whether under the circumstances shown in evidence defendant was relieved from his trust obligations so as to permit him to make purchase of title to the land and enforce it to the exclusion of the plaintiffs. [2] In order that a tenancy in common should have existed between plaintiffs and defendant in the holding of the lands, it was necessary that the parties should have possessed some color of title and asserted their claim in some tangible way. [3] Under the Civil Code, section 1006, a possessory right to state lands may be acquired which will be sufficient against all except the sovereignty. This possessory right must be evidenced by actual possession, for there could be no constructive possession in such a case. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial enclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property."

(Coryell v. Cain, 16 Cal. 567.) The acts and things done must be of such a nature as to give notice to the public of the claim. (Brumagim v. Bradshaw, 39 Cal. 24.) [4] Applying the requirements of these rules to the evidence here shown, it will be seen, first, that the alleged cotenants never asserted or attempted in any way to give notice that they claimed the right to the possession of any particular lands, except as to the 30-acre pasture, which two of them fenced and which will be referred to in a later portion of this opinion. It is well to point out here that the question as to whether any of the cattle owners, by continued use of the water which came to the surface of the ground at the different oases, acquired easement rights therein which could not be destroyed upon transfer of the fee in the land, is not involved. This action concerns the land alone. [5] As has been noted, there had been no claim made by the alleged cotenants that they were entitled to the possession of any certain land. The range extended for many miles and nothing short of the line of the horizon seems to have marked a limit to the wandering of the herds. If defendant had been permitted, for instance, to purchase a complete section of land, would his cotenants have claimed the right to share in that purchase? They might as reasonably have done so, for they declare in their complaint that the 280 acres purchased included the lands upon which the springs were located, and other lands as well. They marked out no boundary to lands necessary to the convenient use of the water, which was the one inducement, as all agree, that brought them and their cattle there. There was some testimony that cattle men respected range limits as between each other, but that appears to have been a mere matter of private understanding and of which no sort of notice was given. There was no tenancy in common of specific land either described in the complaint or illustrated by the evidence.

[6] Coming now to the 30-acre plat which was fenced by plaintiffs: This pasture was used by plaintiffs, and the court found that they had excluded defendant from its use, making such refusal conditional upon defendant paying a proportion of the cost of the construction of the fence. Plaintiffs cannot maintain that as to the pasture a cotenancy existed, while admitting, as the court found, that they denied the defendant, one of the alleged cotenants, the use of it. [7] "Neither cotenant has any power to compel the others to unite with him in erecting buildings or in making any other improvements upon the common property. . . . If a cotenant has assented to or authorized improvements to be made, he is answerable therefor, and a lien exists against his property for the amount thereof against him and his grantees with notice." (Freeman on Cotenancy, 2d ed., par. 262.) There is no right in cotenants to seize the property of the noncontributing member and so summarily work out their remedy for his failure to contribute to the cost of improvements made with the latter's consent. "To constitute a tenancy in common there must be an equal right to the possession of every part and parcel of the subject-matter of the tenancy," observes Mr. Freeman in the work to which citation has been made; and at paragraph 155 he states:

"As the rule forbidding the acquisition of adverse titles by a cotenant, from being asserted against his companions, is always said to be based upon considerations of mutual trust and confidence supposed to be existing between the parties, the question naturally arises whether the rule is applicable where the reasons on which it is based are absent. Joint-tenants, tenants by entirety, and coparceners, always hold by and under the same title. Their union of interest and of title is so complete, that, beyond all doubt, such a relation of trust and confidence unavoidably results therefrom that neither will be permitted to act in hostility to the interests of the other in reference to the joint estate. Tenants in common, on the other hand, may claim under separate conveyances, and through different grantors. . . . As their conrection is not necessarily so intimate as that of other cotenants, it may well be doubted whether they should always be subject to the restraints imposed upon the others. There are many cases in which the rule in regard to the acquisition of an adverse title by a cotenant is spoken of in general terms as applying to tenants in common, irrespective of their special and actual relations to one another. But an examination of the decisions clearly shows that tenants in common are not necessarily prohibited from asserting an adverse title." The refusal to allow defendant to share in the use of the pasture entitled him to treat the assumed cotenancy, if any existed as to that ground, as at an end. If this result did not follow, certainly the relations shown to exist between the parties were such as to negative the presumption of mutual trust and confidence.

These conclusions, which affect the main propositions involved in this appeal, require that the judgment and order should be reversed as not being sustained by the evidence.

The judgment and order are reversed.

We concur:

CONREY, P. J.
SHAW, J.

JAMES, J.

Civil No. 1416. Second Appellate District. January 9, 1914. JOHN H. HOBBS, Plaintiff and Appellant, v. D. A. DAVIS, THE TOM REED GOLD MINES COMPANY (a Corporation), CHARLES GRIMES, CHARLES MUSHRUSH, W. C. MASON. W. J. LAWRENCE, JOHN SPRAGUE and H. I. STEWART, Trustee, Defendants and Respondents.

[1] SPECIFIC PERFORMANCE-CONTRACT FOR SALE OF MINING STOCK -DEFAULT IN PAYMENTS-EXCUSE FOR NON-PERFORMANCE--PLEADING ---INSUFFICIENT COMPLAINT.-A complaint in an action for the spe cific performance of a contract for the sale of certain mining stock which alleges as an excuse for the failure of the plaintiff to make the payments on the purchase price as provided by the contract, that the defendant in conspiracy with the other directors of the company prevented the plaintiff's engineer from making an examination of the mine, which examination was necessary in order for him to obtain the money necessary to make the payments. fails to state a cause of action, where nothing is stated in the

complaint from which it can be inferred that the plaintiff was unable to make the comparatively small first payment which placed him in default.

[2] ID. CONTRACT-DEFAULT IN PAYMENTS-CONDUCT OF OTHER PARTY RULE.-Provisions of a contract calling for payments strictly at a time specified cannot be applied where the efficient cause of the failure of the party seeking specific performance to comply strictly and literally with the contract was the conduct of the other party.

[3] ID.-CONTRACT FOR SALE OF STOCK-GROSS INADEQUACY OF PRICE-DENIAL OF SPECIFIC PERFORMANCE.-A contract for the sale of mining stock which fixes a price grossly inadequate cannot be specifically enforced.

Appeal from the Superior Court of Los Angeles County-W. M. Conley, Judge presiding.

For Appellant-J. W. McKinley, H. L. McNair, W. H. Bryant. For Respondents C. J. Willett, Hunsaker & Britt, N. P. Moerdyke.

Demurrers of the defendants to the second amended complaint in this action were sustained without leave to amend, and thereupon the action was dismissed. The plaintiff appeals from the judgment.

Plaintiff seeks a decree for specific performance of a contract for the sale to him by the defendant Davis of certain shares of stock in the Tom Reed Gold Mines Company, a corporation; and judgment for damages, if for any cause such specific performance cannot be had according to law. The contract in question, as well as a prior option hereinafter mentioned, was made between defendant Davis and one H. E. Fluke; but it is alleged that in all of the proceedings Fluke was acting as agent of the plaintiff, and that Fluke has assigned to plaintiff his interest in said contracts. On July 29, 1910, on payment of $1,000, an option in writing was executed between Davis and Fluke, giving Fluke the right during the period of thirty days to purchase said stock at a stipulated price, but did not bind Fluke or the plaintiff to complete the purchase. On August 25, 1910, a written contract was executed between the same parties for the sale of the same stock at the same price, and therein it was specified that Fluke agreed to buy the shares of stock and pay the purchase price in specified instalments, payable successively as follows: $25,500 on or before September 2nd, $102,000 on or before October 2nd, and $127,500 on or before November 1, 1910; the vendor acknowledging receipt of $1,000 on the first instalment. Time was specified to be of the essence of the contract, and all sums paid on the contract were to be forfeited in case of failure of the purchaser to perform his agreement. Nothing was paid on the contract except the first $1,000. No offer to perform by paying the contract price, or any further portion thereof, was made until at least as late as March, 1911. The contract price amounted to about $1.23 per share, and it is alleged that the reasonable value of said stock on September 2, 1910, was, and ever since has been, not less than $3 per share.

It is manifest that upon these facts alone the complaint