termination of the amount to be awarded ( evidence is utterly insufficient to support plaintiff. the findings of cruelty. There is force in the contention, but we are not prepared to say that there is an entire failure in that respect. The evidence, however, bearing upon and lending support to the allegations of the complaint, seems quite meager, and we think in fairness to appellant that there should be a new trial. If the evidence were strong and convincing, it might be held that the er [7] The instruction as to the general treatment of plaintiff by defendant was not justified by the pleadings. There was no such allegation, and therefore it was not within the issues. Following the instruction, the jury might have believed that none of the specific allegations of cruelty was supported, and yet have found in favor of plaintiff upon this sweeping direction as to general treat-rors committed were without prejudice; but, ment. This would be contrary to the established rules of practice. [8] Appellant complains also of the action of the court in refusing certain instructions proposed by him concerning his theory as to the insanity of plaintiff at the time of the marriage. They seem to embody a correct principle of law, and it is not shown that they were inapplicable to the evidence. Appellant had a right to expect that the jury would be instructed along the line suggested. [9] In considering the instructions, we are mindful of the fact that the verdict of the jury was simply advisory, and that the erroneous action of the court thereon must be regarded in a somewhat different light from the case where a jury may be demanded as of right. However, in view of the natural and usual inclination on the part of the judge to adopt the findings of the jury and the fact that they were adopted in this case, it seems quite important that the jury should have been correctly instructed. as the case appears so doubtful upon the 1. SPECIFIC PERFORMANCE [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 382, 383.] 2. SPECIFIC PERFORMANCE 123-PROOF OF ADEQUACY OF CONSIDERATION-STATUTE. Appeal from Superior Court, Nevada Coun- Under Civ. Code, § 3391, providing that specific performance cannot be enforced against a [10] There is apparent justification for ap- party to a contract if he has not received an pellant's complaint as to the allowance of adequate consideration, where plaintiff, in an ac$400 for an attorney's fee. As we under-tion for specific performance of an agreement to convey placer mining land, failed to prove that stand it, the law is settled that a wife is the consideration was adequate, though the point entitled to an allowance of this kind only was put in issue by the pleadings and his attenwhen it is necessary to enable her properly tion was called to it on the motion for nonsuit, to maintain her action and the burden is up-mitted him to supply the evidence, judgment of when, if requested, the court would have peron her to show that such allowance is neces-nonsuit was proper. sary. Respondent is challenged by appellant [Ed. Note.-For other cases, see Specific Perto point out any evidence showing such ne- formance, Cent. Dig. §§ 397, 399.] cessity. It is declared that plaintiff made no attempt of any kind to prove that it was nec-ty; essary, that the record is absolutely silent upon the point, and that there are no findings of fact upon which such an order could be based. The only reply is that the contention is absurd, but it can hardly be so easily answered. The statute itself, section 137 of the Civil Code, contemplates that the order shall be made only when it is necessary to enable the wife to present her case, and, in commenting upon this provision of the law, the Supreme Court, in Loveren v. Loveren, 100 Cal. 494, 35 Pac. 87, said: "The plain object of this statute was to empower the court, * * upon a proper showing made by the wife for that purpose, to compel the husband to provide her with the means necessary to enable her to prosecute or defend the action." Other errors are claimed by appellant, but It is deemed unnecessary to notice them specifically. It is earnestly contended that the Action by Frank R. Porter against Lieu Ellen Stockdale and others. From a judgment of nonsuit, and an order denying motion for new trial, plaintiff appeals. Judg. ment and order affirmed. H. H. Eaton, of San Francisco, for appellant. Hennessy & Peterson, of Grass Valley, for respondents. BURNETT, J. The action is for specific performance of an agreement to convey certain placer mining land in Nevada county. After plaintiff had introduced his evidence at the trial a motion for nonsuit was made upon the grounds that the complaint failed to state a cause of action; that the plaintiff was bar red by his laches in making tender of payment more than 3 years and 5 months after the third payment in his contract became due, and more than 2 years and 5 months after the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fourth payment became due; that time was of the essence of the contract, and therefore plaintiff could not recover; that the delay in making his tender constituted laches from the very nature of the land, it being mining property; that plaintiff had failed to prove the value of the land, and that he had not shown that the sum of $700, as set forth and mentioned in the contract sued upon, was and is a fair and adequate consideration and price for the land therein described. The court held that time is an essential feature in contracts relating to the sale and purchase of mining property, and that, since the tender of payments was made long after they became due, the plaintiff was barred by his laches, and, furthermore, that plaintiff had failed to prove an adequate consideration or whether it was fair and equitable. A motion for a new trial was made and denied, and the appeal is from that order and the judgment of nonsuit. It is to be observed that appellant seems to have been rather indifferent to the view of the trial court as to the adequacy of the consideration, it appearing that in his assignment of his reasons for excepting to the ruling there is no allusion whatever to this ground, although the court had made it very emphatic, stating: "Further than that, it seems to me, even if the court should hold against the defendant upon the ground of inexcusable delay and laches, there is no showing before the court which would enable the court to say what is the value of the land, or whether the compensation agreed upon is fair and equitable. * * It is an action in equity, and that is one of the essential factors that the compensation is fair and reasonable." We notice, also, that in the assignments of error there is the same omission and the opening brief of appellant is entirely silent on the subject. Nevertheless, the question is of vital importance in this state. The statute itself is clear and the decisions applying and enforcing it numerous and conclusive. We may notice a few of these. In Morrill v. Everson, 77 Cal. 115, 19 Pac. 190, it is said: "Before the Code, the preponderance of authority was, that mere inadequacy of consideration, not amounting to evidence of fraud, was not ground for refusing specific performance. Pomeroy on Specific Performance, § 194. But the Civil Code contains the following provision: 'Sec. 3391. Specific performance cannot be enforced against a party to a contract in any of the following cases: (1) If he has not received an adequate consideration for the contract; (2) if it is not as to him just and reasonable.' Here the inadequacy of consideration seems to be mentioned as a distinct ground from the injustice and unreasonableness; and the provision seems to be explicit and absolute. We do not doubt that the point of time to which the question of adequacy must relate is the time of the formation of the contract." In Windsor v. Miner, 124 Cal. 492, 57 Pac. 386, the appeal was from an order denying the motion for nonsuit, and, in reversing it, the court said: "Specific performance is an equitable remedy, and it is incumbent upon the plaintiff in an ac tion of this character to show both in the averments of his pleading and in the evidence at the trial that he is entitled to the equitable relief which he seeks. In the absence of any averment or evidence as to the value of the land involved in the controversy, either as to the whole of it or as to any portion of it, with nothing value or worth of the option and privilege to purstated upon which to base any estimate of the chas, how is the court to determine whether defendants have received an adequate consideration or whether the contract is as to them just and is worth $500 an acre; if so, $100 per acre is reasonable? * It may be that this land not an adequate consideration for it. * The allegations and evidence as to improvements being placed upon the land by plaintiff do not tend to obviate or cure the defects in plaintiff's case already pointed out." * In White v. Sage, 149 Cal. 616, 87 Pac. 193, after citing various prior decisions of the Supreme Court, it is said: "The effect of these decisions is that the mere statement of the price agreed to be paid, as in this case, will not suffice. There must be a showing of the value, at least, so that the court can determine whether or not it was in reasonable proportion to the price to be paid, or of other facts which are sufficient to satisfy the court that the contract is just and reasonable to the buyer in all its material elements." So in Kaiser v. Barron, 153 Cal. 788, 96 Pac. 806, it was declared that: "Specific performance of a contract for the conveyance of land cannot be had by a vendee where it is neither alleged nor proved that the vendor had received an adequate consideration for the contract, and that as to him it was just and reasonable, nor that facts exist which would justify the inference that such conditions existed." Finally, in Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140, it is said: "Whatever may be the rule in the absence of statute--and on this point the authorities in other jurisdictions are not in harmony-section 3391 of the Civil Code and the decisions of this court establish beyond the possibility of question the proposition that inadequacy of consideration is, under the law of California, an independent and distinct ground for denying specific performThe burden of alleging and provance. ing the adequacy of the consideration is upon the party seeking the relief." Coming to the facts here, we find that plaintiff alleged in his complaint: tioned in said instrument was and is a just, fair "That the sum of $700 as set forth and menand adequate consideration and price for the land therein described." Defendants' answer to this was full and specific in denying that the sum of $700 was or is adequate or fair or just, and no evidence whatever was even offered as to the value of the property at the time the contract was executed, nor do any circumstances appear tending to show that said consideration was adequate or fair or just. [1] The contract was not denied, but in this class of cases the contract itself does not afford any evidence of the adequacy of the consideration. Being in writing, the presumption is that it was for a valuable consideration, but, as we have seen, the adequacy is a distinct and independent ground in an action for specific performance, and it -- must be proved, or else equity will afford the 5. MUNICIPAL CORPORATIONS m663(3) STREETS plaintiff no relief. INJURIES TO TREES RIGHT OF TELEGRAPH COMPANY TO CLEAR WIRES FROM BRANCHES. [2] If the proo, was available plaintiff can blame only himself for the condition of the record. The issue was made by the pleadings, and he should have been placed on his guard. His attention was also called to it on the motion for nonsuit, and, no doubt, if requested the court, would have permitted him even then to supply the evidence. He chose, however, to ignore that feature, probably for a good reason. At any rate, it seems decisive of the controversy, and the judgment and order are affirmed. A telegraph or telephone corporation, in trimming or severing the branches of trees to prevent contact of wires therewith, can do no cient working of wires, without subjecting itself more than is necessary for the proper and effito civil liability for damages. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1440.] 6. MUNICIPAL CORPORATIONS 671(4) STREETS INJURIES TO TREES - REMOVING BRANCHES FROM WIRES. In an action by property owners against a telegraph company for damages caused by the company's cutting off the branches of trees in front of plaintiffs' property to clear its wires, We concur: CHIPMAN, P. J.; HART, J. the burden was on plaintiffs to show either that While the owner of property in front of which trees are grown and standing has only a qualified or limited interest in them, an interest subject and subordinate to the rights of the city to trim and remove the trees whenever the public interests require such action, if a person injures such trees without lawful right or authority, the owner can recover such damages as he may be able to show he has suffered by reason of any depreciation in the value of his property occasioned by the injury to the trees. it was entirely unnecessary to remove any branches from the trees, or that the company removed more branches than the situation with respect to its wires called for. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1447, 1450.] 7. MUNICIPAL CORPORATIONS 671(4) STREETS INJURIES TO TREES REMOVING BRANCHES FROM WIRES-EVIDENCE. In such action evidence held insufficient to sustain plaintiffs' burden. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1447, 1450.] Appeal from Superior Court, Yolo County; W. A. Anderson, Judge. Action by Catherine Altpeter and another against the Postal Telegraph-Cable Company, a corporation. From a judgment for plaintiffs, defendant appeals. Reversed. See, also, 25 Cal. App. 255, 143 Pac. 93; 26 Cal. App. 705, 148 Pac. 241. Willard P. Smith and B. B. Blake, both of San Francisco, for appellant. E. E. Gaddis, of Woodland, for respondents. HART, J. This is an action for damages for the alleged injury of certain walnut trees standing and growing in and on Court street, in the city of Woodland, in front of the plaintiffs' houses, situated on lots 8, 9, and [Ed. Note.-For other cases, see Municipal 10 of block 4 of said city, said lots being the Corporations, Cent. Dig. § 1440.] 3. MUNICIPAL CORPORATIONS 680, 681(1)— POWER TO GRANT FRANCHISE TO PUBLIC UTILITIES. Cities and towns are empowered, as agents of the state, to grant to public utility corporations, such as those engaged in the distribution of water, gas, electricity, or the transmission of telegrams, etc., the right to use the streets in a reasonable manner. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1459.] 4. MUNICIPAL CORPORATIONS property of the plaintiffs. The complaint alleges a wrongful and unauthorized cutting of the limbs of the trees, the charge so alleged being that the defendant without lawful or any authority knowingly and willfully cut down, chopped, mangled, mutilated, disfigured, and destroyed four of said trees, and prays for a judgment for $500 and treble any sum at which damages may be assessed. Code Civ. Proc. § 733. The answer denies the allegations of the 663(3) complaint, and as an affirmative defense deRIGHT OF scribes the character of the defendant's business, alleges the necessity of clearing its wires from the branches of the said trees, through the branches of which said wires pass, alleges that the lines of the defendant have been maintained on the street in ques A telegraph company did not subject itself to an action for damages when it cut the branches of trees growing in front of city property along a sidewalk to clear its wires to prevent interference with their proper operation. [Ed. Note.-For other cases, see Municipal tion and through said trees for a long period Corporations, Cent. Dig. § 1440.] of time prior to the acquisition by the plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tiffs of the premises in front of which said | property in front of which such trees are trees stand. The cause was tried by the court without a jury, and judgment rendered and entered in favor of the plaintiffs for the sum of $450, and costs. This appeal, supported by a bill of exceptions, is prosecuted by the defendant from said judgment. The action is founded on section 733 of the Code of Civil Procedure, supra, which reads: "Any person who cuts down or carries off any wood or underwood, tree or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction." Section 3346 of the Civil Code prescribes the measure of damages for the wrongful injuries to timber, trees, or underwood "upon the land of another, or removal thereof." The general contention of the defendant is that the findings derive no support from the evidence. The particular proposition urged by the defendant, however, is whether or not a telegraph company which maintains its lines in the public streets of a town or city may, as against an abutting property owner, lawfully trim trees growing and standing in a street, and through which its wires pass, for the purpose of preventing branches of such trees from interfering with the proper operation of the wires as transmitters of telegraph messages. [1-3] These propositions will not be controverted: (1) That trees may lawfully be grown and maintained along the sidewalks in the streets of cities and towns and in front of the premises of abutting property owners, that is to say, that trees so grown are not nuisances as would be a purpresture of any character which would ordinarily have the effect of obstructing or materially interfering with traffic in and over the street; (2) that, while the owner of property in front of which trees are grown and standing has only a qualified or limited interest in the trees-an interest which, in other words, is subject and subordinate to the rights of the city to trim or remove them whenever the public interests require such action-if a person injures such trees without lawful right or authority, such owner may maintain an action for damages for the injury so inflicted and recover such damages as he may be able to show that he has suffered by reason of any depreciation in the value of his property which has been occasioned by such injury; (3) that, where trees so grown are cut, trimmed, or removed by the city or town for the purpose of facilitating the use of the street in a legal manner by the public, then the damage resulting from such cutting or removal to the owner of the standing is damnum absque injuria; (4) that cities and towns are generally empowered, as agents of the state, to grant to public utility corporations such as are engaged in the distribution of water, gas, electricity, or the transmission by electric currents of telegrams or messages the right to use, in a reasonable manner, or so as not to interfere with common traffic, their streets for the purpose of installing and maintaining in such streets the equipments essential to the carrying on of the business of such corporations, and that, when such right or privilege or franchise is so granted, such corporations are authorized, upon such conditions or under such restrictions as may have reasonably been imposed, to remove from the streets so used any object or thing which will, if permitted to exist, prevent proper and efficient service by them as such corporations to the public. [4] The last stated of the foregoing propositions is peculiarly applicable to telegraph and telephone corporations maintaining their wires over and along the streets of cities and other urban communities. "The telegraph company," well say counsel for the defendant in their opening brief filed herein, "exercises its franchise in the street as a public agency, and not as a private individual. neither shirk nor avoid. It must maintain its It is charged with a public duty which it can lines at all times in a safe and workable condition, so that the messages of the public may be out error. In this respect it exercises the same transmitted over them without delay and withfunctions over its wires that the public authorities exercise over the streets and highways themselves. The latter are endowed with the right and charged with the duty of removing trees whenever they become an obstruction to travel by foot or vehicle over the surface of the highway. The same reasoning which supports this right requires that the owners of the telegraph with a similar right and charged with a similines dedicated to public use should be endowed lar duty whenever the free transmission of telegrams over their wires is obstructed by the growth of the branches of trees among the wires or from any other cause. And just as the street and highway authorities are given a wide latitude of discretion in performing their duties, so the telegraph company should be given a broad latitude in removing limbs of trees so long as the removal is not done carelessly or in bad faith. Furthermore, the telegraph company having been granted the right by the state to construct its lines on the public highways, such incidental powers as are necessary to make the principal grant effective naturally follow it. If it were otherwise the principal grant would exist only in name and would be absolutely of no value or effect for practical purposes. Recog nizing the soundness of this reasoning, the courts have uniformly held that the power and right to trim trecs interfering with telegraph wires exists in the telegraph company owning the wires." See Southern Bell Tel. Co. v. Constantine, 61 Fed. 61, 9 C. C. A. 359; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 229, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; Meyer v. Standard Tel. Co., 122 Iowa, 514, 98 N. W. 300; Wyant v. Central Tel. Co., 123 Mich. 51, 81 N. W. 928, 47 L. R. A. 497, 81 Am. St. Rep. 155; Miller v. Detroit, etc., Ry., 125 [5] Of course, a telegraph or telephone corporation, in trimming or severing the branches of trees to prevent contact of their wires therewith, will not be permitted to do more in that respect than is necessary for the proper and efficient working of their wires. If it goes beyond this or wantonly and unnecessarily cuts or mutilates the trees -that is, if such corporation removes branches or limbs which do not, and from their situation with respect to the wires can not, interfere with or impair the proper and efficient use of such wires-then it is liable for any damages thereby caused to the owner of the premises in front of which the trees stand. The principles stated above are elementary, and, applying them to the facts of the instant case as the evidence presented before us discloses them, we cannot perceive how the findings may be upheld. through the wire and back through the ground by interrupting it, and a dot is really a short dash. employed it has been my duty to ascertain matters In the different capacities in which I have been 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 tain amount of current from the wire to the the transmission of messages by diverting a cerground. 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: The facts are: That the predecessor in interest of the defendant installed a telegraph line in the city of Woodland and erected the wires over and along Court street in said city and through the trees in question in the year 1886, and have ever since so maintained said wires. From time to time during the period from 1886-87 down to the date of the trimming of said trees in August, 1911, the defendant and its predecessor in interest have, when the exigency of the case required it, trimmed and severed from the trees certain of the branches and limbs thereof. That such cutting and trimming are absolutely necessary whenever the branches and limbs have so grown and spread out as to bring them in contact with the defendant's wires is so obvious a proposition that it will not be disputed. But a clearer understanding of this proposition may be obtained from the testimony of Mr. Blake, president and general superintendent of the defendant. For over 40 years, as an operator, a chief operator, an inspector of lines, and as manager, Blake has been identified with the telegraph business. His testimony stands in the rec-ers had formed around where the limbs had been ord uncontradicted, as indeed it could not in its general aspect be contradicted, since it involves a lucid explanation of the philosophy of telegraphy, the method of its operation, and the effect of the contact of telegraph wires with foreign substances under certain conditions upon messages transmitted over the wires, all of which propositions are nowadays quite obvious to the average understanding. He explained: "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 suck cut off previously, forming a little bush at the top and just inmediately under that edge and probably two or three or four inches down. We cut it off like that (indicating) and let it down wires of the telegraph company, we trimmed the to make a clean job of it. With reference to 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 axe. I never trim a tree with an axe.' 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 "Telegrams are transmitted over wires by the electromagnetic system of telegraph invented by Prof. 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 morning following the day they were removthe circuit, allowing the electricity to flowed from the trees, and that the larger limbs |