Was anything said at the time in regard to any He further testified that he saw Dye have a $100 bill on Tuesday and asked him where he got it, and that Dye pointed in the direction of the treatment room. Gertrude Walker, who kept the rooming house where defendant had his institute, testified that defendant showed her a $100 bill on Tuesday or Wednesday following the day Halstead came to the place. It is not necessary to state the evidence further as to defend ant's having Halstead's money. He admitted it to Attorney Crowley, who was Halstead's attorney, but claimed that Halstead loaned it to him, which the latter testified was untrue. The question urged is that the evidence failed to establish larceny. [1] The court correctly instructed the jury as follows: "Embezzlement is when the possession of the property has been acquired lawfully and bona fide, and afterwards fraudulently appropriated. The gist of the offense of embezzlement is the breach of trust reposed in the agent, employé, or bailee by his principal, employer, or bailor. The crime may be in general terms defined to be the fraudulent conversion of another's personal property by one to whom it has been intrusted. When a bailee of property obtains possession of it from the owner with the intention of stealing it, and carries out that intent, he is guilty of larceny; but, where the intent to steal did not exist at the time of taking possession of the property by the bailee, but was conceived afterwards, it is embezzlement." "In the case of grand larceny the taking must be with a felonious intent, as heretofore stated, but in embezzlement the original taking is lawful, and the crime consists in the fraudulent appropriation of property by a person to whom it has been intrusted." Halstead testified that he did not authorize Purdy or Dye to take charge of his money: that "he just took off his clothes with the money in and left it there." He was not told how long he would have to remain in the bath or when he was to be taken from there. People v. Montarial, 120 Cal. 691, 53 Pac. 355. He testified that he had no reason to distrust defendant, and that he trusted everything to him. Naturally he so felt, or, as he testified, he "would not have been there." We do not think that these expressions of confidence in defendant must necessarily be construed as having clothed defendant with the authority of a bailee in the sense that he could not be held guilty of larceny for having feloniously taken and appropriated his patient's money. It is urged that the court erred in admitting the statement of the defendant taken in the district attorney's office by the chief deputy, Mr. Jones, and his stenographer. On January 11th, one week after Halstead went to these baths, defendant was arrested and taken first to his own office, and then to the office of the chief of police, and thence to the district attorney's office. When arrested he was told that: "It is relative to a fellow from Nevada. Probably you know about it." This occurred on the street where he was arrested. Nothing further was said until he was taken to his office. "When he got up to the office he stated: "I haven't any of this man's money. What are they trying to rib up on me now? Some more ribbing?" He says: 'All I had of this man's money was $20.' He says: 'I don't know anything about his money." It was along those lines. Q. He said that voluntarily before you had said anything to him? A. Yes, sir. Q. You did not tell him before that that any statement that he made would be used against him? A. He was pacing up and down in the room, and he seemed to be excited and very nervous, and he was talking at random, there in the room before us. Q. Well, you did not tell him or you did not advise him of any rights, did you, before that-before making that statement? A. I hadn't asked him anything relative to it. Q. Just volunteered this statement? A. Yes." Defendant moved that this testimony be his rights. The motion was denied. Defendant was then taken to the district attorney's office, where he made a statement which was taken down by the court stenographer and was offered and admitted in evidence. Defendant objected that "he was not advised of his rights prior to the making of the statement," or "that it would be used against him on the trial, he was not properly informed." The preliminary questions were as follows: [2, 3] We are of the opinion that at the time Halstead disrobed for his bath and his clothing was "hung up on pegs or hooks" in the dressing room adjoining the so-called bake oven the possession was not taken by 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 bailee. In fact, the clothing seems not to have been removed, except that the trousers were late in the week brought to Halstead, and he found his coat and vest where they had been placed when he entered the room to take his bath.. Defendant was told at the time Halstead was undressing that his money was in his clothing, and defendant's subsequent conduct justified the jury in inferring that he formed the intent to take that money and appropriate it to his own use-in short, to steal it-when he was helping to undress Halstead. But, if this intent was formed the next day (and there was evidence that he had the money on Tuesday), the felonious taking would constitute larceny, for the reason that Halstead's property had A. I am "By Mr. Jones: Mr. Dye, this is the district attorney's office. A. Yes, sir. Q. This is Mr. Carragher, the deputy district attorney. Yes, sir. Q. And my name is Jones. chief deputy district_attorney. A. Yes, sir. Q. This is Mr. Warren Doan, the shorthand reporter, and you know the officer. A. Yes, sir; I we brought you here to have a talk with you. have had a sad experience with the officer. A. Yes, sir. Q. I do not want you to feel that Q. any threats made against you or any promises made to you. A. Yes, sir. Q. There is a serious charge made against you, and we want to hear your statement if you have any to make. A. Well, what was the charge? Q. The charge is that you took $150 or thereabouts from a man by the name of Halstead." Then follows the statement. Defendant stated the history of Halstead's coming to his place of business, his experiences while there, and his departure from the place. It is not necessary to set out this statement. In the main it disputes Halstead's story; is a justification for what was done in treating him; denies that Halstead had the money he claims he had; and states that all the money he (defendant) got was the $20 bill and a $1 bill. The statement was in no sense a confession of guilt, but was, in fact, an assertion of in nocence. Section 1324, Penal Code, has no application. People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. So far as the record shows, defendant made no objection to giving his connection with the transaction. There was, in our opinion, no violation of his constitutional rights in reading the statement to the jury. In People v. O'Bryan, 165 Cal. 55, 130 Pac. 1042, relied upon by defendant, O'Bryan was arrested on suspicion, and was held in custody in the county jail. "He was taken before the grand jury which was investigating the offense, and sworn to testify. He was not informed of his constitutional right to decline to be a witness against himself, nor was he warned that his statements might be used against him." In that case the court said: "The Constitution protects a person from being compelled to be a witness against himself. If at the time he appears no accusation, formal or informal, has been made against him, he does not, in testifying, become a witness against himself. Or if, even though charged with crime, he voluntarily gives evidence against himself. his rights are not infringed by the use of such evidence thereafter. These distinctions are well illustrated by a series of New York cases"-citing the cases. In the case here defendant did not testify; he made certain extrajudicial statements, and, under the circumstances disclosed, we think they were voluntarily made. But, if there was error in admitting the statement, we are satisfied from an examination of the entire record that the result was just, and would have been reached if the error had not been committed. Const. art. 6, § 42; People v. O'Bryan, supra. Error is assigned because of alleged misconduct of the deputy district attorney. In addressing the jury he said: "Gentlemen of the jury, let me call your attention to one thing; the punishment for embezzlement is exactly the same as the punishment for grand larceny. Mr. Smith: We object to that statement, if your honor please, and ask that the jury be instructed not to consider it. The Court: Yes; the jury cannot consider that. Gentlemen of the jury, you will not consider that statement of the district attorney." The district attorney overstepped the boundary of his privilege in addressing the jury, for the question of punishment was of no concern to them, and, as the principal defense was that there was a fatal variance between the proofs and the charge, the statement, unchallenged, might have had some infiuence to defendant's prejudice. We must assume, however, that the jury obeyed the direction of the court and did not consider the statement. The judgment and order are affirmed. HART, J. I concur in the judgment and in all that is said by the Presiding Justice concerning the effect of the evidence and the justification of the verdict of conviction under the proofs. But I do not think it is necessary to invoke article 6, § 42, of the Constitution to uphold the court's ruling in admitting in evidence the extrajudicial statement of the defendant when in the office of the district attorney. The application of said section of the Constitution in a case presupposes either error in the ruling as to which it is invoked or a doubt in the mind of the reviewing court as to the correctness of the ruling. [4] In the first place, the statement of the defendant in the district attorney's office is not a confession. On the contrary, it involved an explicit and direct denial of guilt of the crime charged or of any crime in connection with the defendant's transaction with the prosecuting witness. It was therefore unnecessary to show, preliminary to the admission of the statement, that it was voluntarily made or not made under the induce ment of hope or fear. Greenleaf on Evidence, § 213. [5] In the second place, I am clearly of the opinion that, had the defendant confessed that he committed the crime of larceny against the prosecuting witness under the circumstances characterizing the making of the statement which was allowed to go to the jury over his objection, we would be required to hold that it was voluntarily made. Before being questioned as to his connection with the alleged crime, the defendant was informed by the deputy district attorney that he was then in the presence of the officers of the law, including an officer who would probably have something to do with the presenta tion of the case against him at the trial. He was further sufficiently given to understand that he was not compelled to make a statement or "under any restraint or that there are any threats made against you or any promises made to you." This warning, I think, was sufficient to apprise the defendant of his right not to make a statement if he so elected, and that he would be shown no favor if he did make one. Of course, a confession, to be admissible as proof of guilt, must not have been "extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exercise of any improper influence." 3 Russell on Crimes (6th Ed.) 478. But, as our Supreme Court declared in the case of the People v. Siemsen, 153 Cal. 387, 394, 95 Pac. 863: claim cannot commence to run until after title of the United States to the land is divested, for an adverse possession cannot operate as against the United States or the state. 2.] "Whether a confession is free and voluntary [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. erable measure of discretion must be allowed 5. EASEMENTS 8-WAY BY PRESCRIPTION-that court in determining it." See, also, People v. Miller, 135 Cal. 69, 67 Pac. 12; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; People v. Fox Burns, 149 Pac. 605. Obviously there must be some showing that the confession was freely and voluntarily made and without any previous inducement or offer of leniency in punishment or by reason of any intimidation or threat. People v. Miller, supra. And that there was such a showing in this case I am, as before suggested, thoroughly persuaded. As I understand the object of section 42 of article 6 of the Constitution, it is to be applied only where manifest error has been committed and a review of the whole record, including the evidence, does not justify the conclusion that a miscarriage of justice will be the inevitable result of such error, if the judgment should be affirmed. (District Court of Appeal, Second District, California. Dec. 8, 1915.) 1. EASEMENTS 18-WAY BY NECESSITYWHEN ALLOWED. If a landowner has access to his property over a hill route, though it be rough and difficult for transportation, but not shown incapable of development to a practical grade and width by even a considerable expenditure of money and labor, he cannot support a claim to a right of way by necessity over the lands of another on the ground that it is necessary to the reasonable use and enjoyment of his lands, for such right can only be claimed where the way furnishes the only access to the claimant's property. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. 18.] 2. EASEMENTS 7-WAY BY PRESCRIPTION ADVERSE USER. If a way to which a right is claimed by prescription is plowed by the owner of the land and obstructed by him for his farm purposes during the time of prescription the claim cannot be supported. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 16-19, 27, 33; Dec. Dig. 7.1 3. EASEMENTS 36-WAY BY PRESCRIPTION -BURDEN OF PROOF. The claimant of a right of way by prescription must prove a five years' continuous and uninterrupted use and enjoyment of the way. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 77, 78, 88-93; Dec. Dig. 36.] 4. EASEMENTS 2-WAY BY PRESCRIPTIONPARTIES-UNITED STATES. If land over which a right of way by prescription is claimed is owned by the United States during part of the time of enjoyment of the way, the time of prescription to support the -ADVERSE USER-NOTICE. A claim to a right of way by prescription cannot be supported where claimant's use of the way has been allowed by the landowner as a matter of accommodation only on account of the nature of the country and the practices of travel therein, and the claimant's conduct in the use of the way has not been such as to put the landowner upon notice of an adverse user. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 23, 24, 27-33; Dec. Dig. 8.] Appeal from Superior Court, Los Angeles County; James W. Bartlett, Judge. Action by Pierre Agoure against Alonzo Morrison to enjoin an interference with plaintiff's use of an alleged right of way and After trial to quiet his interest therein. and judgment in favor of plaintiff, John Lapique was substituted as plaintiff because of an assignment to him of Agoure's interest in the action. From a judgment for the plaintiff and an order denying a new trial, defendant appeals. Reversed. Kendrick & Ardis, of Los Angeles, for appellant. Haas & Dunnigan, of Los Angeles, for respondent. After JAMES, J. This action was commenced by Pierre Agoure, who claimed the right to the use of a right of way for road purposes across the land of defendant. By the allegations of the complaint facts are alleged which support both a cause of action to assert the right in the plaintiff as of necessity to the use of the road, as well as the right by adverse user; at least, such is the general complexion of the allegations contained in the complaint. In the prayer it is demanded that defendant be enjoined from interfering with the plaintiff's use of the alleged right of way, and also that the interest of plaintiff therein be quieted as against the defendant. trial was had and judgment in favor of the plaintiff, an order was made substituting the respondent herein as party plaintiff, the order of the court in that behalf reciting that it appeared that the estate, right, title, and interest in the action had been assigned by the plaintiff to the respondent. No point is made as to the regularity of this order. We think the assignability of the cause of action in this particular case might well be questioned, but as the point is not raised we are not called upon to determine that matter. However, we think that the judgment and order denying the defendant a new trial, both of which were appealed The evidence is from, must be reversed. not sufficient to support either. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] In the first place, the findings of the court are not such as to establish facts in support of the claim that the right of way existed in Agoure's favor as of necessity. The only suggestion in that direction is the statement in the findings that the roadway "is necessary to the reasonable enjoyment and use of plaintiff's said lands." It is well established that a right of way by necessity can only be claimed and held where it furnishes the only way by which access may be had to the property of the claimant. "The right of way from necessity must be in fact what the term naturally imports, and cannot exist except in cases of strict necessity. It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way." Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879. The relation of grantor and grantee did not exist as between Agoure and this defendant, but even though such had been their relation, the facts found by the court do not establish the most material thing, to wit, that the plaintiff could not obtain access to his property except by use of the right of way claimed. Turning to the evidence, we find that the facts shown do not establish any such condition. It appears that for many years prior to the year 1903, Agoure and other persons had driven across the land now owned by the defendant in order to reach a certain tract composed of 15,000 acres held by Agoure. All of this land was in a hilly region, and it was more convenient for Agoure to cross the land of defendant and the former occupants thereof than it was to travel in a different direction. There was direct testimony of a hill route leading out from Agoure's land to the county road, which, however, it was stated was so rough as to make it difficult to transport any load thereacross. But it was nowhere shown that by the expenditure of some money and laborperhaps a considerable amount of both-this hill route could not have been converted into a roadway of practicable grade and width. So it is very clear that no ground existed upon which Agoure or the plaintiff could assert legal necessity for the right of way as claimed. [2,3] It appears that the plaintiff relied further, and the trial judge evidently sustained his claim in that regard, upon the fact that he had made use of the road for a long period of years. The court found that the right of way had been used for a period of more than five years prior to the mencement of the action. Easement rights may be so acquired, but where they are asserted the party claiming them must prove an uninterrupted use of the right of way. fendant was held by the government of the United States up to the year 1903, when a patent was issued by which such title was divested. Since the year 1903, the evidence showed that this roadway had been plowed over and grain had grown up at times in the tracks. There was testimony for the defendant, which was uncontradicted, that haystacks had been placed across the roadway subsequent to the year 1903. The period included within that which will give title by adverse possession cannot commence to run at any time as against the ownership of the United States or of the state. O'Connor v. Fogle, 63 Cal. 11. So, under the facts disclosed by the record, no claim by adverse user could have been raised prior to the year 1903, nor until five years had elapsed after issuance of patent to the defendant's land. During this latter period, we think the evidence clearly shows that the use which Agoure made of the right of way was not continuous and uninterrupted; it was more in the nature of a user by permission. The de [5] The country there was largely open and uncultivated. stated, and persons generally having occasion It was hilly land, as above to travel in that region adopted whatever route might appear to be the shortest, which they were allowed to do as a matter of accommodation by the landowners. fendant could hardly have been placed upon notice, under the circumstances, that Agoure! expected, because of the permission accorded him, to base a claim to easement rights in the roadway, for his general conduct was not such as to indicate his determination so to do. If he had intended to insist upon such a claim, his acts, as they are generally described by the testimony, and considering the practice adopted by travelers in that sparsely settled country, do not sufficiently so indicate. On this point, see Clarke v. Clarke, 133 Cal. 670, 66 Pac. 10. The judgment and order are reversed. A judgment of nonsuit for plaintiff's failure to prove a sufficient case, when entered in the court's minutes, need not be followed by a com-judgment of dismissal to make it a "final judgment," within Code Civ. Proc. § 939, providing for appeals, for such a judgment of nonsuit in Code Civ. Proc. § 581, subd. 5, providing for itself constitutes a dismissal of the action, under dismissal of actions or entry of nonsuits, and directing that a dismissal when entered upon the [4] Title to the land now owned by the de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For other definitions, see Words and Phrases, First and Second Series, Final Judgment.] 2. LANDLORD AND TENANT 130-COVENANT OF QUIET POSSESSION-BREACH. Where a lessee relies upon an agreement in the lease that the lessor will protect him against any claims arising as to the ownership of the premises which the lessor holds under a contract of purchase, and no misrepresentations are shown to have been made by the lessor as to the nature of his title, the commencement of a suit by the owner of the paramount title to quiet its title as against the contract of purchase because of default in payment of installments does not constitute an eviction of the lessee, that operates as a breach of the covenant of quiet possession. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. 130.] 3. MINES AND MINERALS 56 - LEASE FORM-DESIGNATION BY PARTIES. An agreement between the holder of land under a contract of purchase and a second party, providing that the second party shall take possession of the land and develop oil thereon, rendering to the other a portion of the product in payment of its use, is a lease, irrespective of its form or the designation given it by the parties. [Ed. Note.--For other cases, see Mines and Minerals, Cent. Dig. § 166; Dec. Dig. 56.] In the case of Kimple v. Conway, 69 Cal. 71, 10 Pac. 189, it was held that no appeal was allowed from an order granting a motion for a nonsuit, nor from a judgment of nonsuit. In that case, however, it was not finally affirmed that a judgment of nonsuit might not, by being entered in the judgment book, become a final judgment from which an appeal might be taken. However, at the time that decision was rendered section 581 did not contain the provision which was inserted in 1897 making an entry upon the minutes of the court of the orders or judg ments sufficient for all purposes. It would seem under the present state of the law that none of the orders or judgments provided to be made by section 581, Code of Civil Procedure, need be entered in the judgment book at all or appear in any record except that containing the minutes of the court. This conclusion is sustained by the decisions of Matthai v. Kennedy, 148 Cal. 699, 84 Pac. 37, and Pacific Paving Co. v. Vizelich, 141 Cal. 4, 74 Pac. 352. We do not believe that a formal judgment of dismissal must follow the order or judgment of nonsuit, for the judgment of nonsuit in itself constitutes a dismissal of the action. It seems clearly to have been so considered in defining it in section 581, Code of Civil Procedure, which refers particularly to dismissals or the dis Appeal from Superior Court, Los Angeles continuing of actions. County; Charles Wellborn, Judge. Action by Thomas Commins, trustee of the Canadian Crude Oil Company, Limited, bankrupt, against the Guaranty Oil Company, for damages for breach of contract. From a judgment of nonsuit, plaintiff appeals. Af firmed. Collier & Clark, of Los Angeles, for appellant. Weaver, McCracken & McKee, of Los Angeles, for respondent. JAMES, J. The plaintiff in this action, at the conclusion of the testimony introduced in support of his main case, was nonsuited. An appeal was taken from the order granting the motion of nonsuit, the record of which order or judgment appeared only in the minutes of the court. [1] It is first claimed by the respondent that the order granting the motion for a nonsuit, not being followed by a formal judgment of dismissal, was not a final judgment in the sense that that term is used in section 939, Code of Civil Procedure, providing for appeals. Section 581, Code of Civil Procedure, provides that: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissals mentioned in subdivisions and 5 of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered. [2] The motion for a judgment of nonsuit was properly granted, in our opinion, because the plaintiff's evidence did not establish his right to the relief sought. Thomas Commins, the plaintiff, appears as the trustee of the Canadian Crude Oil Company, a bankrupt, and hereinafter, for brevity's sake, we will refer to that corporation as the plaintiff. The evidence introduced on behalf of the plaintiff showed that the defendant, in April, 1911, entered into an agreement with the plaintiff whereby the defendant let to the plaintiff, for a period of 20 years, 20 acres of land in Kern county, Cal. Conditions of the agreement of lease provided that the plaintiff should develop oil on the land and render unto the defendant a certain proportion of the gross amount of the product in payment for such use. The plaintiff took possession of the land, proceeded with the work of developing oil thereon, and continued in that possession until November 1, 1911, when it abandoned the property. The abandonment was made because of an alleged eviction suffered at the hands of the owner of paramount title. This suit was brought to recover as damages all of the money expended upon the property (amounting to more than $35,000), together with other sums claimed to have been laid out incidental to the making of the contract engagement. The evidence showed that about the middle of the year 1910 the defendant had contracted with the Lucky Boy Oil Company to purchase |