status of the defendant when he filed his application, and the judgment of the court that he had no right to purchase the land was justified by the evidence and the facts admitted by the pleadings in the case.

But it is urged that if the defendant had not the right to purchase the land, neither had the plaintiff, because his application, made on the 17th of January, 1878, was accompanied with an affidavit like unto the affidavit made by the defendant, and which accompanied his application.

Unquestionably, the objection would be well taken if the plaintiff's application was made under the same law; and it is undoubtedly true that the rule of law concerning such applications, once established, is presumed to continue in force until repealed or changed. (Code Civ. Proc., subd. 32, sec. 1963.) But the legislature changed the law by a statute passed 13th of March, 1874. (Stats. 1873-74, p. 356.) As changed, the law was in force on the day of the plaintiff's application to purchase. It is not denied, and the court finds that the plaintiff's application was made in due form of law and was accompanied by an affidavit which complied in all respects with the statute, and the rules and regulations of the board in force, and that thereafter, and before the commencement of this action, the board accepted and approved the application and received from the applicant the sum of $1,070 in payment of the purchase-money of the land.

Upon these undisputed facts in connection with the facts that the plaintiff was an actual settler upon the land and had continuously occupied it and resided upon it with his family for twenty years, and had put improvements upon it of the value of fifteen hundred dollars, and that the defendant had never settled upon, occupied, or improved it, we think that the plaintiff was vested with a right to purchase, and that the defendant was

not.

A person who has never settled upon university land,

never occupied or improved it, acquires no right to purchase it, which can be maintained against an application to purchase by an actual settler upon the same land, who has improved it and resided upon it with his family for twenty years. In such condition it would be unjust and inequitable to sell the land to a mere outside applicant, who, it must be presumed, proposes to buy for the purpose of dispossessing the actual occupant.

Judgment and order affirmed.

MORRISON, C. J., THORNTON, J., MCKINSTRY, J., SHARPSTEIN, J., MYRICK, J., and Ross, J., concurred.

ARCATA AND MAD RIVER RAILROAD COMPANY, RESPONDENT, v. WILLIAM MURPHY ET AL., APPELLANTS.

ACTION TO CONDEMN LAND

MEASURE OF DAMAGES

MARKET VALUE OF LAND INSTRUCTION. In an action to condemn land as a right of way for a railroad, where no evidence is given of an increase in the value of the land between the commencement of the action and the trial, an instruction that in assessing the damages the jury should consider the market value of the land on the day after the action was commenced is not erroneous.

APPEAL from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

J. D. H. Chamberlin, for Appellants.

J. J. De Haven, and W. M. Tirtlot, for Respondent.

The COURT.

Action to condemn land for a right of way for a railroad. Plaintiff had judgment, and defendants appealed.

Defendants were permitted to give and did give evidence as to the value of the land as a bridge site; therefore no error was committed in that regard of which the defendants can complain.

The complaint was filed April 11, 1883. The trial was had June 5, 1883. The court instructed the jury to consider the market value of the land April 12, 1883. There was no evidence that there had been an increase in the intrinsic value of the land between the commencement of the action and the trial; therefore it is immaterial whether or not the instruction was correct in point of time.

We see no error; the judgment and order are affirmed.

[No. 9760. Department One.

September 28, 1886.]

JOHN SCROUFE, RESPONDENT, v. FREDERIC CLAY,

PLEADINGS

BE ALLEGED

APPELLANT.

ACTION ON PROMISSORY NOTE
INSUFFICIENT AVERMENT.

NON-PAYMENT MUST The complaint in an action on a promissory note must allege its non-payment. An allegation that the defendant has refused and still does refuse to pay the principal or interest of the note, or any part thereof, and that there is now due the plaintiff a certain sum, is not sufficient.

APPEAL from a judgment of the Superior Court of Mendocino County.

The facts are stated in the opinion of the court.

R. Percy Wright, for Appellant.

T. L. Carothers, for Respondent.

The COURT.- Action on a promissory note. The complaint averred that the defendant "has refused and still refuses to pay" the principal or interest of the note, or any part thereof, and "that there is now due" the sum, etc. The complaint was demurred to on the ground

that there was no allegation of non-payment. The demurrer was overruled.

We are of opinion the demurrer should have been sustained. The averments of the complaint are not equivalent to an averment of non-payment. "The failure to pay constitutes the breach, and must be alleged." (Frisch v. Caler, 21 Cal. 71; Davaney v. Eggenhoff, 43 Cal. 395.) Judgment reversed, and cause remanded with directions to sustain the demurrer.

[No. 9611. Department One. - September 28, 1886.] B. CROGHAN, RESPONDENT, v. RICHARD SPENCE,

an action to quiet title to land, the right of the defendant to charge the plaintiff as trustee of the land for his benefit on the ground of fraud, held, barred by the statute of limitations.

·APPEAL from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial.

The action was brought to quiet the title of the plaintiff to the premises in controversy against an adverse claim asserted thereto by the defendant. The defendant in his answer denied that the plaintiff was the owner of the land, and pleaded an adverse possession thereof for more than five years, and by way of cross-complaint alleged that he was the equitable owner of the premises, and asked that the plaintiff be decreed to hold the legal title in trust for him. The cross-complaint alleged in substance that the defendant was entitled in equity to enter the land under the pre-emption and homestead laws of the United States, but that one D. W. Minor, under whom the plaintiff holds the legal title, by fraud and without notice to the defendant, obtained a patent there

for on the 5th of January, 1876. It was further alleged that the plaintiff acquired his title with notice of the equities of the defendant. The action was commenced on the 13th of January, 1883. The court found that the defendant had full knowledge of the alleged fraud of Minor in obtaining the patent for more than four years before the commencement of the action. The further facts are stated

in the opinion of the court.

J. D. H. Chamberlin, for Appellant.

J. J. De Haven, for Respondent.

The COURT.- There was no evidence of an actual adverse possession by defendant of any part of the premises described in the complaint. The finding against the defendant on his plea of the statute of limitation.

proper.

To the cross-complaint of the defendant the plaintiff pleaded in bar sections 343 and 338 of the Code of Civil Procedure.

For all purposes necessarily involved in the disposition of this case it may be conceded that defendant is entitled to a decree against the plaintiff — charging him as trustee of the legal title for defendant's benefit if the defendant would have been entitled to a like decree against Minor, the grantor of plaintiff, had Minor not parted with his title.

The defendant's cause of action against plaintiff, if any he has had, arose, at the latest, August 13, 1877, when the commissioner of the general land-office adjudged (in the language of appellant's brief) that defendant "had the better right to pre-empt the land and that Minor had acquired his patent by fraud and perjury." That was more than five years before the present action was, commenced, and nearly six years before the defendant herein filed his cross-complaint.

If the cross-complaint be treated as a bill for relief on