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What did you tell him you had? A. I told him further along this line. The Court: The objecthat I had $150—that was including the $20 that tion is overruled. Mr. Jones: The acts that I he had taken down to get changed--and he says, expect to prove will show larceny. The Court: "That will be all right;' he says, 'It is here in I have overruled the objection. Mr. Jones: Go your clothes;' he says, "Everything will be all ahead, Mr. Halstead. State what you said to right, Mr. Halstead.' Q. Go ahead. A. After Mr. Dye about your clothes. A. I asked him to I took the bath, or while lying in this bath, he bring my clothes in, that I had occasion to get brought some kind of liquid-I don't know what up out of the bed, and that every time I would it was-that I took through a glass tube, do so I took a chill. I asked him the first night * * * I took it through a glass tube while if he wouldn't bring my clothes into the room. lying on my back. And after I got out of the I don't remember whether he said he would or bath I was feeling very weak. He assisted me not, but he did not do so; and almost every into a back room of his office and put me to time he w

ne to time he would come in I would ask him to bring bed. He went out of the room, after covering in my clothes. I think it was either a Wednesme up, and came in with some liquid in a glass, day or a Thursday that he just brought my and I am not sure whether it was a tablet or a pants in-no other clothes. I asked him then capsule that he had, and he said: "Take this.' Ifor the rest of my clothes, and he said that I asked him-I remember asking him-if that was couldn't dress anyway, and he didn't want me an opiate. He said: 'No.' He says: 'It is a to go out in the condition that I was in; that purgative.' He says: 'I want to bring you I must not leave my room. It was on a Friday around just as quickly as I can. Very soon -rather it was on a Thursday-that I began to after that I went off into a sleep or a stupor. get suspicious that something was wrong, be I don't remember just when I awakened. When cause he had refused to bring my clotbes in to I did, I was suffering great pain. And he me, and I told him on a Friday, I says: 'Docbrought in something else in a glass and told tor, I want you to bring my clothes in. I am me to take that. Q. When you gave him the going to dress. There is no use of my staying $20 bill, did he give you any change? A. No. here. I will die in here. I am going to get out Q. What did he say about changing it, if any, of here.' And he said something like this: thing? A. He never referred to having changed 'Now, don't get excited; don't get excited. He it at all. Q. Well, did he leave the room to go says: 'I am going to look after you; you are out to change it-anything of that kind? A. all right.' I had previously asked him if my Yes, when I gave him the $20 bill, he went money was all right. He says: 'Yes; your out of the room immediately. He said: 'I will money and your clothes-everything is all right. go and get it changed and be right back, Q. Don't feel alarmed about anything.' 'Well,' I When he came back, was anything said about says, 'I want you to bring my clothes in to the change? A. No. Q. When you took your me.' He says, 'I will,' and he went out-he clothes off, they were hung up there in the went out and came back in a f

minutes, and closet? A. Yes, sir; not in a closet; in the he says: 'Purdy has gone out, and has the key room in which I undressed. Q. Did you author of the room in which your clothes are located. ize him, Purdy, or anybody else, to take the I will have to wait until he returns. As soon money out of your clothes and take care of it, as he gets back I will bring your clothes in to or anything of that kind ? A. No, sir. Q. Did you.' He went out and probably a half an hour you authorize anybody. Purdy or Dye. to take or longer had elapsed when I got up. I was charge of your money in any way? A. Not at feeling very bad and desperate. I put on my all. Q. You just took your clothes off with the pants, and I went out into the hall and went money in and left it there? A. Yes, sir. Q. toward his office door. I took hold of the knob Now, what else occurred that night? A. Well, of the door; I believe I rapped first; then I I don't remember how often he came into the took hold of the knob of the door, and it openroom, or how often he gave me something from ed. It was perhaps after 7 o'clock, because the & glass. Once or twice I know, having rapped lights I know in the streets were hurning, and or called, he came in and I asked him for water the light was shining in my room, and the second -some water; I was very thirsty; and I think door from his office was open. That is where I once he brought me in some water; and I know had undressed, and I went in there, and I that the second or third time he gave me some found my clothes hanging up, and my shoes and sort of medicine from a glass. Once it was a stockings were down on the floor. Q. The same dark color, and another time it was apparently room where you went to undress ? A. In the of a clear color. Q. Did he give you any liquor? same room, and the clothes were apparently just A. I don't remember whether he gave me anywbere he had hung them when I undressed. I liquor that night or not. I think it was the next put on my clothes dressed and was sitting in day that I was suffering, and I asked him what his office chair when he came in shortly afterthat was, whether it was brandy or whisky, and wards. Q. Wait a minute. You put on your he says: 'It is a stimulant.' I believe. as I clothes and your vest. State as to whether or remember, that he said that it was brandy and no you examined them to see whether your peppermint. Whether there was anything else money was there. A. I did. Q. Was your in it or not, I don't know. He said: 'I want money there? A. No. Q. Was any of it there? you to take what I give you.' He says, 'I A. Nothing at all. Q. The last time you saw want to bring you around as quickly as I can.' | the currency that you spoke abo:it, where was Q. Well, how were you the next day? A. Well, it? A. In my inside vest pocket. Q. Inside the next night I was feeling worse than I did the vest pocket; and the gold was where ? A. The night before. Q. How long were you kept gold was in my outside vest pocket. Q. And there? A. From Monday morning until Friday, where was your coin-silver? A. In my pants the following Friday night, before I got out. pocket. Q. Now, you looked through all those . . * Q. Now, when you were put to bed, pockets, did you? A. Yes, sir. Q. And none what clothes did you have ? A. My undershirt. of it was there? A. None of it was there. Q. Q. Were you given your clothes afterwards? | You dressed and you went in your room? A. A. Not until the following Wednesday or Thurs- No; I don't remember whether I went into my day. I had asked often if he wouldn't bring my room. I sat in his chair in the office. While clothes in. Mr. Smith: Your honor, do I un sitting there, he came in and seemed very much derstand that you ruled that all this testimony surprised to see me there. Q. What was said? is admissible to prove larceny? The Court: A. "Well,' he says, 'here you are.' I says: I just ruled on one question that you objected 'Yes; and I have found my clothes; they were to Mr. Smith: I object to this character of not locked up; they were right where they were examination. It is not any proof of larceny in left when I was taken out of the room. I says: any way; it is irrelevant, immaterial, and in- | 'Doctor, where is my money?' And he never competent so far as the issue in this case is answered. I asked him two or three times; he .concerned. I ask that it be stricken out, and stood there. I says: “Where is my money?' that.' He says: 'Don't get excited.' He had, curred to me at all. Q. The question of a often used that expression : 'Don't get excited.' breach of trust had never occurred to you? A. Ile says: 'Now that you have got your clothes No. Q. You went there, and you might say on, perhaps it is better for you to come out and trusted your life and what you had to Dr. Dye? get some fresh air.' "Well, I says, 'I want my A. Yes, sir. Q. And you trusted what you had money.' 'Well,' he says, you will have your to him? A. Yes. Q. You did not see him money.' He says: 'Don't feel alarmed; you put your clothes in a locker of any kind, did will have your money. Come outside and get you, or trunk or anything? A. No. Q. They some fresh air, and perhaps you will be able to were just hung on a nail? A. Hung on a nail or eat something.' I went out with him, and we hook; yes. I think in the corner between the crossed over to the Thomas Café and sat down, doors of the two rooms. Q. Your vest with and he says: 'Now, order anything that you the valuables was bung with the other clothes? want.' * * * Q. Well, where did you sleep | A. I believe they were at the time all hung tothat night? A. Back in his place; not in the gether." room that we slept in the night before or at the time that I went there.

He testified that he expected to be in the

Q. When you came out of the Thomas Café-you said you had noth- | room there until the next day, and that no ing in there but a glass of beer? A. That was room was designated for him to occupy after all. Q. Now, when you came out of there, did

ere, did | leaving the bath. he give you any money? A. Yes, sir. Q. How niuch ? A. I think it was $3. Q. He gave you

"Q. After you had taken your bath, you did $3? A. Yes. Q. How came he to give you

not expect to return to this room? A. Well, I that? A. I asked him for the money, and he

| hadn't thought anything about it at all where says: 'I haven't much money with me now.'

I would be placed." He says: 'I will get your money.' Well,' I He testified that defendant did not give says, I haven't any money at all; I have got him the change, but kept the $20 bill. nothing.' And he pulled out some money in his hand and handed me $3, and he says: That

"Q. Did you not say you had trusted everywill do you now.' And he says: 'I will have

thing to his hands? A. I may have. I naturalall your money back to you.' Q. Well, you

ly would do so, because I think I remember his slept in his room that night, did you? A. Yes;

asking me if I had any doubts about anything not in the same room that I had been sleeping

being not right. I told him I had no reason in. * * * Q. What conversation, if any, did

for any doubt at all. Q. You trusted everything you have with him the next day in regard to

to him? A. I had confidence in the place and your money? A. It was during the next day

in him, or I would not submit to the treatment that he admitted that he had taken my money. I or trust him with what I had. Q. And you Q. Well, don't say 'he admitted.' T'ell just | did trust your clothing and your money and your what the language was and how he came to person to Dr. Dye? A. Yes." say it, and the conversation that was had be He testified that, "with the exception of tween you. A. Well, those were the words that his pants.” he did not see his clothes from he used. He says: 'I must admit that I have taken your money. Those were the words he | Monday until Friday. used. Q. What did he say he had done with “Q. You turned your clothing and your money it? A. He didn't say what he had done with over to the care and custody of the defendant? it. Q. What explanation did he give, if any, A. Why, certainly. Q. And trusted implicitly for not giving it to you? A. Well, I don't re- in him? A. That my money would be there member that he gave any reason for it at all. when I would come out, of course. Q. You gave He said that he would et it and return it to him possession of your money and your clothing? me.'

A. I gave him possession of my clothing with

money in it, and told him that my money was It appeared that Halstead remained there in my clothing, and he said it would be all right; until the following Monday, when both de- it would be there when I came out. Q. And fendant and Purdy were arrested, and Hal- you

na tol. you expected him to look after your money and

your clothing, did you pot. Mr. Halstead? A. stead left the place; that defendant admit- | Why, certainly. Q. And keep it safely for you? ted that he had taken his money and used A. Why, I expected just the same as any it; that a week or two later, and while he clothes. I couldn't think of anything else." was under arrest, defendant paid back $100 | Un re-examination in chief he testified: to Halstead. On cross-examination Halstead "Q. Now, you took your vest off, and you simtestified that after giving defendant a $20 | ply handed your vest to one of these gentlemen bill the latter said he would get it changed,

| to hang up, or hung it up yourself? A. I didn't

seu, hang it up myself. Q. You handed it to one of and left Halstead for that avowed purpose, them? A. Yes, sir. Q. You left it there as and while defendant was away Purdy took you would if you had taken off your clothes him into a room adjoining the “bake oven"

o the whole won and was going to take a bath? A. Yes, sir. Q.

There was nothing said at that time about them and told him to disrobe, and that while doing taking care of your money as distinct from your so, or as he was about to do so, defendant re clothes? A. No, no. Q. You simply left your turned, and both defendant and Purdy as-clothes there as you would anywhere when you Was anything said at the time in regard to any , Halstead testified that he did not authorize money? A. Not to my knowledge." That the Purdy or Dye to take charge of his money : first he heard of any money was the following Friday, when he met Dye in the office. "I

disrobed? A. Yes, sir, Q. You are sure you sisted him in disrobing.

did not take out the money and hand it to him, "Q. While you were disrobing you said you and put it specially in his charge, or anything had valuables in your clothes? A, Either when of that kind ? A. No; I did not. Q. You went I was disrobing or after I had disrobed, and he and took your bath ? A. Yes, sir. Q. You frehad taken that, I told him, and he said that quently asked him for your clothes? A. Yes. would be all right; 'everything will be secure Q. And he put you off? A. Yes." and safe.' Q. Was it not while you were taking off your clothes and handed your vest to Dr.

| The district attorney dismissed the inforDye? A. I don't remember at just what time mation as to Purdy and called him as a witduring my undressing that I said that, or if it ness. He testified that he assisted Dye in was after I had undressed. It was before I

disrobing Halstead and in giving him the went into the bath, * * * I was impressed that the place was reputable and genuine, and / bath. He testified: Dr. Dye impressed me very much, and I hadn't That he hung up part of Halstead's clothes, the least doubt in the world but that everything and Dye "hung the rest of them," and that he

to that "he just took off his clothes with the asked him if he had this man's money, and, if he money in and left it there." He was not had it, he better pay it back; that he would told how long he would have to remain in the only get us in trouble. **' Q. What did he say? A. He said that he had that all fixed

bath or when he was to be taken from there. up. He said everything was all right."

People v. Montarial, 120 Cal. 691, 53 Pac. He further testified that he saw Dye have

355. He testified that he had no reason to a $100 bill on Tuesday and asked him where distrust defendant, and that he trusted everyhe got it, and that Dye pointed in the direc

thing to him. Naturally he so felt, or, as tion of the treatment room.

he testified, he "would not have been there." Gertrude Walker, who kept the rooming

We do not think that these expressions of house where defendant had his institute. tes. confidence in defendant must necessarily be tified that defendant showed her a $100 bill construed as having clothed defendant with on Tuesday or Wednesday following the day the authority of a bailee in the sense Halstead came to the place. It is not necessa- | that he could not be held guilty of larceny ry to state the evidence further as to defend- | for having feloniously taken and appropriant's having Halstead's money. He admit- / ated his patient's money. ted it to Attorney Crowley, who was Hal-! It is urged that the court erred in admitstead's attorney, but claimed that Halstead ting the statement of the defendant taken in loaned it to him, which the latter testified the district attorney's office by the chief depwas untrue. The question urged is that the uty, Mr. Jones, and his stenographer. On evidence failed to establish larceny.

January 11th, one week after Halstead went [1] The court correctly instructed the jury to these baths, defendant was arrested and as follows:

taken first to his own office, and then to the "Embezzlement is when the possession of the office of the chief of police, and thence to the property has been acquired lawfully and bona district attorney's office. When arrested he hide, and afterwards fraudulently appropriated.

ted: was told that: “It is relative to a fellow The gist of the offense of embezzlement is the breach of trust reposed in the agent, employé, or

from Nevada. Probably you know about it." bailee by his principal, employer, or bailor. The This occurred on the street where he was crime may be in general terms defined to be the

arrested. Nothing further was said until fraudulent conversion of another's personal

he was taken to his oflice. property by one to whom it has been intrusted, When a bailee of property obtains possession of "When he got up to the office he stated: “I it from the owner with the intention of stealing haven't any of this man's money. What are it, and carries out that intent, he is guilty of they trying to rib up on me now? Some more larceny; but, where the intent to steal did not ribbing?" He says: 'All I had of this man's exist at the time of taking possession of the money was $20.' He says: 'I don't know anyproperty by the bailee, but was conceived after-thing about his money.' It was along those wards, it is embezzlement."

lines. Q. He said that voluntarily before you "In the case of grand larceny the taking must had said anything to him? A. Yes, sir. Q. be with a felonious intent, as heretofore stated, You did not tell him before that that any statebut in embezzlement the original taking is law- ment that he made would be used against him? ful, and the crime consists in the fraudulent ap- A, He was pacing up and down in the room, propriation of property by a person to whom it and he seemed to be excited and very nervous, has been intrusted."

and he was talking at random, there in the room [2, 3] We are of the opinion that at the

before us. Q. Well, you did not tell him or you

did not advise him of any rights, did you, betime Halstead disrobed for his bath and his fore that before making that statement? , A. clothing was “hung up on pegs or hooks" in I hadn't asked him anything relative to it. Q. the dressing room adjoining the so-called Just volunteered this statement? A. Yes." bake oven the possession was not taken by Defendant moved that this testimony be defendant, nor in the sense of being intrust- stricken out because he was not advised of ed to him by Halstead did he become a bis rights. The motion was denied. Defendbailee. In fact, the clothing seems not to ant was then taken to the district attorney's have been removed, except that the trousers office, where he made a statement which was were late in the week brought to Halstead, taken down by the court stenographer and and he found his coat and vest where they was offered and admitted in evidence. Dehad been placed when he entered the room fendant objected that "he was not advised of to take his bath. , Defendant was told at the his rights prior to the making of the statetime Halstead was undressing that his mon- ment,” or “that it would be used against him ey was in his clothing, and defendant's sub on the trial, he was not properly informed." sequent conduct justified the jury in infer- The preliminary questions were as follows: ring that he formed the intent to take that “By Mr. Jones: Mr. Dye, this is the district money and appropriate it to his own use--in attorney's office. A. Yes, sir. Q. This is Mr. short, to steal it when he was helping to Carragher, the deputy district attorney. A. undress Halstead. But, if this intent was

Yes, sir. Q. And my name is Jones. I am

was chief deputy district attorney. A. Yes, sir. Q. formed the next day (and there was evi- This is Mr. Warren Doan, the shorthand reportdence that he had the money on Tuesday), the er, and you know the officer. A. Yes, sir; I felonious taking would constitute larceny have had a sad experience with the officer. Q.

We brought you here to have a talk with you. for the reason that hulstead s property nad for the reason that Halstead's property had

A. Yes, sir. Q. I do not want you to feel that

any threats made against you or any promises, jury, for the question of punishment was of made to you. A. Yes, sir. Q. There is a se- no concern to them, and, as the principal derious charge made against you, and we want to hear your statement if you have any to make.

fense was that there was a fatal variance A. Well, what was the charge? Q. The charge between the proofs and the charge, the stateis that you took $150 or thereabouts from a man ment, unchallenged, might have had some inby the name of Halstead."

fluence to defendant's prejudice. We must Then follows the statement. Defendant assume, however, that the jury obeyed the stated the history of Halstead's coming to his direction of the court and did not consider place of business, his experiences while there, I the statement. and his departure from the place. It is not

The judgment and order are affirmed. necessary to set out this statement. In the main it disputes Halstead's story; is a justi HART, J. I concur in the judgment and fication for what was done in treating him; in all that is said by the Presiding Justice denies that Halstead had the money he claims concerning the effect of the evidence and the he had; and states that all the money he (de justification of the verdict of conviction unfendant) got was the $20 bill and a $1 bill. der the proofs. But I do not think it is necThe statement was in no sense a confession essary to invoke article 6, $ 412, of the Conof guilt, but was, in fact, an assertion of in.

stitution to uphold the court's ruling in adnocence.

mitting in evidence the extrajudicial state Section 1324, Penal Code, has no applica- ment of the defendant when in the office of tion. People v. Panagoit, 25 Cal. App. 158, the district attorney. The application of said 143 Pac. 70. So far as the record shows, de- section of the Constitution in a case presupfendant made no objection to giving his con poses either error in the ruling as to which nection with the transaction. There was, in

it is invoked or a doubt in the mind of the our opinion, no violation of his constitution-reviewing court as to the correctness of the al rights in reading the statement to the ruling. jury. In People v. O'Bryan, 165 Cal. 55, 130 [4] In the first place, the statement of the Pac. 1042, relied upon by defendant, O'Bryan defendant in the district attorney's office is was arrested on suspicion, and was held in

not a confession. On the contrary, it incustody in the county jail. "He was taken volved an explicit and direct denial of guilt before the grand jury which was investi- of the crime charged or of any crime in congating the offense, and sworn to testify. He nection with the defendant's tran

nection with the defendant's transaction with was not informed of his constitutional right

the prosecuting witness. It was therefore to decline to be a witness against himself,

unnecessary to show, preliminary to the adnor was he warned that his statements might| mission of the statement, that it was volbe used against him." In that case the court

untarily made or not made under the induce said:

ment of hope or fear. Greenleaf on Evi“The Constitution protects a person from be- Idence. & 213. ing compelled to be a witness against himself.

[5] In the second place, I am

(OJ 1 If at the time he appears no accusation, formal

clearly of

the second place, I am clearly OL or informal, has been made against him, he does the opinion that, had the defendant connot, in testifying, become a witness against fessed that he committed the crime of larcehimself. Or if, even though charged with crime,

'ny against the prosecuting witness under the he voluntarily' gives evidence against himself, his rights are not infringed by the use of such

| circumstances characterizing the making of evidence thereafter. These distinctions are well the statement which was allowed to go to illustrated by a series of New York cases"-cit- the jury over his objection, we would be reing the cases.

quired to hold that it was voluntarily made. In the case here defendant did not testify; Re

Before being questioned as to his connection he made certain extrajudicial statements, mi

: | with the alleged crime, the defendant was and, under the circumstances disclosed, we inform

ed, we informed by the deputy district attorney that think they were voluntarily made. But, if

he was then in the presence of the officers of there was error in admitting the statement,

the law, including an officer who would probwe are satisfied from an examination of the

ably have something to do with the presentaentire record that the result was just, and

tion of the case against him at the trial. He would have been reached if the error had not

was further sufficiently given to understand been committed. Const. art. 6, § 4142; Peo

that he was not compelled to make a statepie v. O'Bryan, supra.

ment or "under any restraint or that there Error is assigned because of alleged mis

are any threats made against you or any conduct of the deputy district attorney. In

promises made to you.” This warning, I addressing the jury he said:

think, was sufficient to apprise the defendant "Gentlemen of the jury, let me call your at

of his right not to make a statement if he so tention to one thing; the punishment for embezzlement is exactly the same as the punish. elected, and that he would be shown no favor ment for grand larceny. Mr. Smith: We object if he did make one. Of course, a confession, to that statement, if your honor please, and ask

ent, If your honor please, and ask to be admissible as proof of guilt, must not that the jury be instructed not to consider it. I have been "extracted by any sort of threats The Court: Yes; the jury cannot consider that. Gentlemen of the jury, you will not consider or violence, nor obtained by any director that statement of the district attorney." implied promises, however slight, nor by the

The district attorney overstepped the exercise of any improper influence." 3 RusSupreme Court declared in the case of the claim cannot commence to run until after title People v. Siemsen, 153 Cal. 387, 394, 95 Pac. of the United States to the land is divested, for 863:

an adverse possession cannot operate as against "Whether a confession is free and voluntary

| the United States or the state.

[Ed. Note.--For other cases, see Easements, is a preliminary question addressed to the trial court and to be determined by it, and a consid

Cent. Dig. $ 3; Dec. Dig. 2.] erable measure of discretion must be allowed 15. EASEMENTS 8-WAY BY PRESCRIPTIONthat court in determining it."

-ADVERSE USER-NOTICE. See, also, People v. Miller, 135 Cal. 69, 67 A claim to a right of way by prescription Pac. 12; Hopt v. Utah, 110 U. S. 574, 4 Sup. cannot be supported where claimant's use of the Ct. 202, 28 L. Ed. 262; People v. Fox Burns,

way has been allowed by the landowner as a

matter of accommodation only on account of 149 Pac. 605.

the nature of the country and the practices of Obviously there must be some showing that travel therein, and the claimant's conduct in the confession was freely and voluntarily the u

Solv and voluntarily | the use of the way has not been such as to

put the landowner upon notice of an adverse made and without any previous inducement

ucement user. or offer of leniency in punishment or by rea-l [Ed. Note. For other cases. See Basements. son of any intimidation or threat. People Cent. Dig. $$ 23, 24, 27-33; Dec. Dig. Om8.] V. Miller, supra. And that there was such a showing in this case I am, as before suggest

Appeal from Superior Court, Los Angeles ed, thoroughly persuaded.

County; James W. Bartlett, Judge. As I understand the object of section 442

Action by Pierre Agoure against Alonzo of article 6 of the Constitution, it is to be ap

| Morrison to enjoin an interference with plied only where manifest error has been plaintiff's use of an alleged right of way and

After trial committed and a review of the whole recora, / to quiet his interest therein. including the evidence, does not justify the and judgment in favor of plaintiff, John Laconclusion that a miscarriage of justice will pique was substituted as plaintiff because of be the inevitable result of such error, if the an assignment to him of Agoure's interest judgment should be affirmed.

in the action. From a judgment for the

plaintiff and an order denying a new trial, I concur: BURNETT, J.

defendant appeals. Reversed.

Kendrick & Ardis, of Los Angeles, for ap

pellant. Haas & Dunnigan, of Los Angeles, LAPIQUE V. MORRISON. (Civ. 1543.) for respondent. (District Court of Appeal, Second District, California. Dec. 8, 1915.)

JAMES, J. This action was commenced by 1. EASEMENTS 18—WAY BY NECESSITY

Pierre Agoure, who claimed the right to the WHEN ALLOWED.

If a landowner has access to his property use of a right of way for road purposes across over a hill route, though it be rough and diffi-| the land of defendant. By the allegations of cult for transportation, but not shown incapable

the complaint facts are alleged which support of development to a practical grade and width by even a considerable expenditure of money

both a cause of action to assert the right in and labor, he cannot support a claim to a right the plaintiff as of necessity to the use of of way by necessity over the lands of another the road, as well as the right by adverse on the ground that it is necessary to the reasonable use and enjoyment of his lands, for

user ; at least, such is the general complexion such right can only be claimed where the way of the allegations contained in the complaint. furnishes the only access to the claimant's prop- In the prayer it is demanded that defendant erty.

be enjoined from interfering with the plain[Ed. Note.--For other cases, see Easements,

tiff's use of the alleged right of way, and Cent. Dig. 88 50–55; Dec. Dig. 18.)

also that the interest of plaintiff therein be 2. EASEMENTS 7-WAY BY PRESCRIPTION

quieted as against the defendant. After ADVERSE USER.

If a way to which a right is claimed by trial was had and judgment in favor of prescription is plowed by the owner of the land the plaintiff, an order was made substiand obstructed by him for his farm purposes

tuting the respondent herein as party plainduring the time of prescription the claim cannot be supported.

tiff, the order of the court in that behalt (Ed. Note.-For other cases, see Easements,

reciting that it appeared that the estate, Cent. Dig. $$ 16-19, 27, 33; Dec. Dig. 7.) right, title, and interest in the action had 3. EASEMENTS 36—WAY BY PRESCRIPTION been assigned by the plaintiff to the respond-BURDEN OF PROOF.

ent. No point is made as to the regularity of The claimant of a right of way by prescrip

this order. We think the assignability of tion must prove a five years' continuous and uninterrupted use and enjoyment of the way.

the cause of action in this particular case (Ed. Note.-For other cases, see Easements. might well be questioned, but as the point is Cent. Dig. $8 77, 78, 88-93; Dec. Dig. Om 36.] not raised we are not called upon to deter4. EASEMENTS 2-WAY BY PRESCRIPTION- mine that matter. However, we think that PARTIES-UNITED STATES

the judgment and order denying the defendIf land over which a right of way by pre

ant a new trial, both of which were appealed scription is claimed is owned by the United States during part of the time of enjoyment of Trom,

Of from, must be reversed. The evidence is the way, the time of prescription to support the not sufficient to support either.

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