electro-magnetic system of telegraph invented by Professor Morse. The electricity flows on the wire and the messages are made by dots and dashes; certain combinations of dots and dashes produce letters and the dots and dashes are made by closing and breaking the circuit, then completing the circuit, allowing the electricity to flow through the wire and back through the ground by interrupting it, and a dot is really a short dash. In the different capacities in which I have been employed, it has been my duty to ascertain matters interfering with the working of lines of telegraph. The limbs of a green tree growing from the ground up into and among the wires affect the transmission of messages by diverting a certain amount of current from the wire to the ground. A dry tree will do the same thing when wet by rain, and when a green tree is wet by rain, it causes a greater escape, as we call it. That is very similar to putting a hole in a water-pipe that you are putting water through. A small hole has very little effect. The larger the hole, the more water escapes and the less the force at the end of the pipe. The same thing applies to electricity; if it leaks off the line, you lose the strength, and that strength is required to operate the telegraph instrument. Where the telegraph is employed for business purposes, you can't work the wires safely where trees are among them. Sometimes you can't work them at all, but never safely if there are any limbs touching the wires. If a limb were lying against the wire solidly, it would interrupt the signal on the wire so that the current would not pass through to the far end of the wire and produce a signal. If the wind was blowing the limb against the wire, making an intermittent escape, it would mutilate the signals. We have had cases where telegrams were sent from San Francisco to New York where a very plain word appears on the tape in San Francisco and a totally different word appears in New York. Something hit the wire and mutilated the signals and made a complete change. We have three claims for damages we have traced to that very thing."

As to the cutting of the trees, the plaintiff called as a witness E. P. Heller, the line repairer and "trouble-man" of the defendant in Woodland in August, 1911. Heller did the cutting and trimming complained of by the plaintiffs. After testifying, on direct examination, that he trimmed the trees and severed therefrom a certain number of branches, he was

turned over for cross-examination and testified: "I trimmed out the new growth that had been formed on the trees since they had been trimmed the last time; that is, the suckers and the new growth that had formed on these limbs since the previous trimming. This new growth was merely limbs that had grown out from the stubs where they had been cut off previously. In other words, it is what is commonly known as suckers that sprang out from around the top of the old stubs. I don't think these stubs would exceed two or three inches in diameter. The suckers had formed around where the limbs had been cut off previously, forming a little bush at the top and just immediately under that edge and probably two or three or four inches down; we cut it off like that [indicating] and let it down to make a clean job of it. With reference to the wires of the telegraph company, we trimmed the trees just enough to clear them well under the wires and to get them away from the wires enough not to cause trouble. [Italics ours.] I did not use an ax. I never trim a tree with an ax."

The witness Hutchinson, testifying for the plaintiff, declared that he saw Heller and his assistants cutting the branches and that the work was, he thought, done with a hatchet, although he subsequently stated that he looked at the severed branches or limbs the morning following the day they were removed from the trees, and that the larger limbs had the appearance of having been "sawed off." This same witness further testified that "the size of the big limbs sawed off were from as big as my thumb up to three inches. . . . There was a place cut out through the trees that looked four or five feet wide. That left the big limbs coming up on either side."

The witness Keehn stated that he was "called in by Mr. Altpeter after the cutting of these trees. I measured up the size of the limbs that were cut. They averaged all the way from one to one and one-half inches. The stubs are still on the trees and can be measured up if desired. I couldn't tell exactly how many limbs were cut. I should judge all the way from five to six branches on each tree, mostly out of the center of the tree. The brush on the ground after it was cut would make a good-sized wagon-load, I should judge. The trees were black walnut, about eighteen or twenty years old. Some of these cuttings were on an average of about ten or twelve feet below the cross-arm."

The witness Murray, for the plaintiffs, testified that "the tops were cut out of the trees, leaving the wires six or eight feet from the points where the limbs were taken from the trees."

Mrs. Altpeter, one of the plaintiffs, testified that the trees were, in the month of August, 1911, "terribly disfigured by cutting them off right straight at the top. They have no shade at the top. . . . We had no trees trimmed at that time and gave no permission to anyone to trim them. I did not see any of the branches that were cut off. The main limbs of the trees were cut. I don't know how big the limbs were that were cut off, but they were the main limbs, the center limbs, I would call it."

The foregoing comprehends, substantially, a statement of all the testimony presented by the plaintiffs upon the question as to the cutting or trimming of the trees. The burden was upon the plaintiffs to show that either it was entirely unnecessary to remove any branches or limbs from the trees for the purpose claimed by the defendant, or that the latter removed more limbs and branches than the situation with respect to its wires called for. This burden they wholly failed to sustain. Heller was the only witness who gave any testimony upon this question, and he declared, as will be observed, that only so much and such parts of the trees were trimmed and cut as were necessary to prevent collision between the wires and the branches-a collision or contact which would have caused such interference with the transmission of messages over the wires as would necessarily have destroyed that efficient service which the defendant, as a telegraph corporation, owes to the public, and the failure to furnish which may subject it to the severest penalties in one form or another. This was one of the vital questions of fact in the case. Indeed, it constituted the very foundation of plaintiffs' right to a recovery; for, obviously, since the defendant, as a public service corporation, is, as above explained, charged with the duty of so maintaining its wires as to facilitate the proper and efficient performance of its obligations to the public, it is necessarily its duty to remove from any point along the route over which it has been granted the right, either by the public authorities or by judgments in condemnation or by agreements with private individuals, to run and maintain its lines, any obstruction interfering with the safe and proper

transmission of messages. As has been shown, it had the lawful authority (Code Civ. Proc., sec. 733) to cut or trim limbs and branches from the trees in question, if necessary for a safe and proper transmission of messages over its wires passing through and in said trees. Therefore, the number of the branches or limbs removed, whether large or small, or the size of the limbs or branches so removed, whether large or small, or what influence and to what extent, if any, the severance of the limbs and branches from the trees exerted in depreciating the value of the property in front of which the trees stand and grow, constitute facts which become wholly immaterial and unimportant unless it be shown that the defendant unnecessarily stripped the trees of certain of their branches and limbs or destroyed more branches and limbs than the necessities of the situation actually required. In this case, whatever may be the extent and effect of the damage the cutting and trimming of the limbs and branches. of the trees might have had on the property of the plaintiffs, it having been shown by the evidence without conflict that such cutting and trimming were necessary to the safe and proper operation of the defendant's wires as transmitters of messages, the damage so inflicted is damnum absque injuria, and, therefore, can form no basis for a recovery by the plaintiffs.

The defendant has presented and argued other points in impeachment of the judgment, but, in view of the conclusion above announced, they need not be considered.

For the reasons above explained, the judgment must be reversed, and it is so ordered.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1917. First Appellate District.-February 8, 1917.]

JAMES G. SPITZER, Respondent, v. CITY OF OAKLAND (a Municipal Corporation), Appellant.

ACTION FOR MONEY HAD AND RECEIVED

- MONEY OBTAINED FROM "BUNCO" SHARP-DELIVERY TO POLICE DEPARTMENT FOR USE AS EVIDENCE-RECOVERY BY DEPOSITOR-EVIDENCE-Where money is obtained from a "bunco" sharp under the pretense of co-operating with him in betting it on a horse-race, and instead of thus betting it, the money is turned over to a municipal police department for use as evidence in case arrests were made, the party delivering the money, after the purpose of such delivery has passed to the point of accomplishment, may maintain an action against the corporation for money had and received, upon showing that he was apparently in the sole and peaceable possession of it at the time of its delivery.

ID.-DOCTRINE OF ACTION-WHEN IN APPLICABLE.-While the action for the recovery of money claimed to have been received for the use and benefit of another is in the nature of an equitable proceeding wherein the plaintiff must prove that he has a better title to the money received than the defendant has to it, the application of the principle does not extend to the case of a defendant who has and claims no title to the money except that derived from its receipt from the plaintiff, but who, nevertheless, seeks to retain it upon the plea that the plaintiff originally came into possession of the money through some unlawful transaction.

ID. RIGHT TO INTEREST.-The plaintiff in such an action is entitled, under section 1917 of the Civil Code, to interest on the amount of the judgment.

APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge.

The facts are stated in the opinion of the court.

Paul C. Morf, City Attorney, G. E. Jackson, Assistant City Attorney, and John J. Earle, Deputy City Attorney, for Appellant.

John W. Gwilt, and James P. Montgomery, for Respondent.

RICHARDS, J.-This action was instituted by the plaintiff to recover from the defendant the sum of one thousand dollars,