the rent.'" In June or July, 1908, Marchand sold to Berton, and at that time the two called on J. L. Samuels and Marchand says: "When I went to see Mr. Samuels at the store, I told him I bad sold out the place to Berton, and asked him if he wanted that man for his tenant. He said, 'Yes; so long as he pays the rent."" "Michel presented me to Mr. Samuels, and, predecessor in interest was the owner of two asked Mr. Samuels if he wanted me for a ten- parcels of land; one parcel being described ant. Mr. Samuels said, 'Yes; so long as I paid as lots 3, 6 and 7, and the other parcel being a certain 40 acres immediately adjoining thereto, a portion of which is involved in this suit. Plaintiffs' predecessor with his family lived upon the property; his dwelling house being mainly located upon lot 7, but a portion of the house extended over upon the adjacent 40 acres. An inclosed yard extended also upon the 40 acres immediately surrounding, as we understand it to be, the rear of the house. At about the year 1894 plaintiffs' predecessor moved from the house and took his family away, and did not thereafter reside in that vicinity. A creditor of plaintiffs' predecessor obtained a judgment against mentioned, which lots were later sold under execution. Defendant's intestate was the purchaser at the execution sale. This purchaser was at the time occupying the house located as we have described it, and at the time he purchased the property under the execution sale he was aware of the fact that the house stood partly upon lot 7 and partly upon the adjacent 40 acres, title to which latter remained undisturbed in plaintiffs' The rent was paid to J. L. Samuels. The receipts were made out in different ways; some receipting to Michel, some to Berton, and at least one to J. B. Johnson, who had backed Berton. While it will be conceded that the story, as gathered from the foregoing recitals, contains but very little touch-him and levied upon lots 3, 6, and 7, before ing the subject of surrender, yet we think it cannot be successfully maintained that there was no evidence on the subject. While reasonable minds may differ as to whether a surrender was intended, this court is not entitled to interfere. Williams v. Kidd, Rice v. Carey, supra. The judgment should be affirmed; and it is so ordered. We concur: Judge pro tem. (38 Cal. App. 144) LENNON, P. J.; BEASLY, predecessor. There is nothing in the record GISH et al. v. HUCKABY. (Civ. 2579.) (District Court of Appeal, Second District, California. Sept. 3, 1918.) 1. LANDLORD AND TENANT ~66(2)—ADVERSE POSSESSION. Owner of house, a small portion of which was situated on adjoining land, part of which land he at times, with owner's consent, farmed, who at no time notified such owner that he disclaimed the relationship of landlord and tenant as to the ground included within fence around house, did not merely, by alleging ownership of house, occupy such land adversely to owner. 2. ADVERSE POSSESSION 89 PAYMENT OF TAXES. Where claim to prescriptive title to land is not founded upon a written instrument, judgment, or decree, claimant must show, in support of his claim, that he had paid all taxes levied and assessed against the property, as required by Code Civ. Proc. § 325. Appeal from Superior Court, Inyo County; J. P. Wood, Judge. Action by J. L. Gish and another against Emily Huckaby, administratrix of the estate of George W. Huckaby, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed. P. W. Forbes, of Independence, and S. E. Vermilyea and S. L. Carpenter, both of Los Angeles, for appellant. A. H. Swallow, of Bishop, for respondents. JAMES, J. Action to quiet title. Defend ant appeals from a judgment entered in favor of the plaintiffs. In presented which tends to show that by the execution sale any property in excess of lots 3, 6, and 7, was pretended to be sold to the defendant's intestate. However, at a later date defendant's intestate set up a claim of title to all of that portion of the 40 acres included within the inclosed yard at the rear of the house which he was occupying. During the early part of his occupancy of this house, and continuing down until after the year 1906, defendant's intestate farmed portions of the 40 acres belonging to plaintiffs' predecessor, with the consent of plaintiffs' predecessor expressed in communications by letter. letters written by defendant's intestate to plaintiffs' predecessor, such intestate referred to the ground as the ranch of plaintiffs' predecessor, and it is very clear from the correspondence which is exhibited by the record that the entire 40 acres belonging to plaintiffs' predecessor was included in the term "ranch." The trial judge found that defendant's intestate had occupied the land continuously and that his possession had been open and notorious, but determined that such possession not been adverse to plaintiffs' predecessor. It was further found that plaintiffs and their predecessor had paid all taxes levied and assessed against the property. It is appellant's contention that the evidence does not justify the finding of the court as to either of these propositions. We cannot agree with this contention, especially as to the first question presented. Admittedly the possession by defendant's intestate of the 40 acres of land was at all times in the nature [1, 2] At about the year 1889 plaintiffs' of a tenancy with the consent of plaintiffs' Tyrrell, Abrahams & Brown and Chas. W. Milton K. Young and W. D. Finch, both of predecessor. No showing was made indicating that defendant's intestate ever notified | Fricke, all of Los Angeles, for appellants. plaintiffs' predecessor that he disclaimed any relation of landlord and tenant as to the ground included within the fence. The only hint of such a contention is found in the statement of defendant's intestate to the effect that, when at one time plaintiffs' predecessor wrote him suggesting that the house should be painted, he replied that he would paint it when he thought it needed it, as he claimed it as his own. As the larger portion of the building was located upon lot 7, which defendant's intestate had purchased under the execution sale, his notification of alleged ownership to plaintiffs' predecessor was wholly consistent with his occupation of the 40 acres as a tenant. As to the second proposition, assuming that the evidence did not show that plaintiffs and their predecessor had paid all taxes levied and assessed against the property, it does not appear that defendant's intestate had made such payments; and we think that it was essential in support of the claim of title by prescription that it be shown that all taxes levied and assessed against the property had been paid by the adverse claimant, as required by the provisions of section 325 of the Code of Civil Procedure. Reynolds v. Williard, 80 Cal. 605, 22 Pac. 262; McGrath v. Wallace, 85 Cal. 622, 629, 24 Pac. 793. The claim of prescriptive title made by defendant's intestate was not founded upon a written instrument, judgment, or decree. (38 Cal. App. 141) 1. APPEAL AND ERROR 931(1) - ASSIGN- Where error is claimed because of the absence of a finding on a material issue, it must affirmatively appear that evidence was presented from which the trial judge would be required in writing to determine the fact, and in the absence of such showing it will be presumed there was no evidence. 2. PLEDGES 33 PLEDGOR'S CROSS-COMPLAINT FOR DAMAGES-BURDEN OF PROOF. In an action on a promissory note for printing, which was secured by the retention by plaintiff of certain books, and defendant crosscomplained that such books had never been delivered to it, the burden was on plaintiff to show facts in excuse of its refusal to deliver the books on demand. JAMES, J. Prior to September, 1913, plaintiff copartnership contracted with defendant copartnership to print and bind a certain lot of text-books for defendant. When the work was completed defendant copartnership was unable to pay the full amount due to the plaintiff on the contract, and a supplemental agreement was thereupon entered into, whereunder the defendant executed to the plaintiff its promissory note in the sum of $300, and it was agreed between the parties that 3,000 copies of the book then ready for delivery should be held by the plaintiff as security for the payment of the promissory note. In this action plaintiff sought to recover judgment on the $300 promissory note. The defendant, by answer and cross-complaint, pleaded that the 3,000 books had never been delivered to it. Answering the cross-complaint, the plaintiff set up that the 3,000 books had been destroyed by fire while in its hands. Affirmative judgment for the sum of $200 damages was entered in favor of the defendant. This ap peal is taken from that judgment, and is presented on the judgment roll alone. In the supplemental agreement hereinbefore referred to the plaintiff agreed as to the 3,000 books held as security that it would "store and keep the same safely at its own risk, except as to conditions beyond its control, and will deliver the same to the LatinAmerican Publishing Company, or its order. Referring to the destruction of the books, the plaintiff in its answer to the cross-complaint alleged: "That said fire was caused by matters and things without and beyond the control of crossdefendants, and was wholly without any negligence or fault of cross-defendants." Touching this issue, the court in its findings of fact determined as follows: "That while said 3,000 books were still in the possession of said plaintiff and being stored at its own risk, except as to conditions beyond its control, the said books were destroyed by fire, on the 1st day of February, 1914; that said fire took place at the printing house of the plaintiff and cross-defendant, but that the destruction of said books by said fire was not a condition beyond the control of said Standard Printing Company." It is argued on behalf of appellant that this finding is insufficient to support the judgment, first, because the court neglected and omitted to affirmatively find upon the Appeal from Superior Court, Los Angeles allegation contained in the plaintiff's anCounty; Wm. D. Dehy, Judge. Action by E. D. Engebritsen and H. White, doing business under the name of the Standard Printing Company, against the LatinAmerican Publishing Company and others. Judgment for defendants on their crosscomplaint, and plaintiffs appeal. Affirmed. swer to defendant's cross-complaint, where in the plaintiff alleged that the fire was caused without any negligence on its part. The case being presented on the bare judgment roll, we have no means of knowing whether there was evidence heard in the trial court upon that question. on [1] It is well settled that, where error is claimed because of the absence of a finding a material issue, it must affirmatively appear that evidence was presented from which the trial judge would be required in writing to determine the fact; and in the absence of such a showing it will be presum ed that there was no such evidence. Coats v. Coats, 160 Cal. 671, 118 Pac. 441, 36 L. R. A. (N. S.) 844; Mohr v. North Rawhide Mining, etc., Co. et al. (Cal.) 170 Pac. 600. But, argue counsel for appellant, it was incumbent on the defendant to show, not only a failure to deliver the books on demand, but also that such failure was not excusable -citing Wilson v. Southern Pacific R. R. Co., 62 Cal. 164. In the opinion in that case it is said that a prima facie case of negligence is made out against a warehouseman who refuses to deliver property stored with him upon proof of demand and refusal. And the opinion continues: "But if it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the result of the negligence of the warehouseman." In this case, there being an absence of any showing as to what the evidence was, and therefore no showing of the time when the property was destroyed, and it appearing by the answer of the plaintiff to the defendant's cross-complaint that the former assumed the burden of showing why it refused to deliver the books, a different situation is presented from that considered in the Wilson suit, supra. [2] We have not found it necessary to determine whether, under the agreement of the plaintiff to store the books at its own risk, it assumed a larger responsibility than that of using ordinary care in their safekeeping. For the purposes of this decision, we have adopted the view of the appellant that, if the destruction of the books was brought about without any negligence on the part of the plaintiff, it might be excused. However, as already indicated, we are of the view that the burden was upon the plaintiff to show facts in excuse of its refusal to deliver the books upon the demand of the defendant. Our duty being to construe the findings of the trial judge in such a way as will support the judgment, we think, for reasons stated, that the judgment should be affirmed. The judgment appealed from is affirmed. We concur: CONREY, P. J.; SHAW, J. was misconduct for the prosecuting attorney, after defendant had testified, to argue to the from asking her about any illegal sales of liquor, jury that accused's counsel wisely refrained in view of Pen. Code, § 1323. Appeal from Superior Court, County of San Bernardino; J. W. Curtis, Judge. Sari Mirandi was convicted of unlawfully maintaining a place where intoxicating liquors were sold, and she appeals. Reversed. J. Vincent Hannon, of Los Angeles, and A. S. Maloney, of San Bernardino, for appellant. U. S. Webb, Atty. Gen., Joseph L. Lewinsohn, Deputy Atty. Gen., and Jerry H. Powell, of Los Angeles, for the People. CONREY, P. J. Defendant was convicted of the crime of misdemeanor committed by willfully and unlawfully maintaining and carrying on a place in the county of San Bernardino where intoxicating liquors were sold, etc., contrary to an ordinance of that county. The defendant appeals from the judgment. At the trial the defendant was sworn as a witness in her own behalf, but did not testify concerning any illegal sales of liquor at the winery, which was owned by her and conducted by her son-in-law, one Jean Fages. In the course of his address to the jury, the district attorney made the following state ment: "I wish to call your attention to a remarkable thing. The defendant was placed upon the stand, but she was not asked regarding any illegal sales of liquor. Mr. Hannon did not ask her a question concerning this matter. He was too good a lawyer, and I give him credit for having too much respect for his client's feelings than to have placed her in an embarrassing position by asking her such questions." Defendant's attorney thereupon objected to the statement so made, and asked the court to instruct the jury that it was not incumbent upon the defendant to make any denial of anything pertaining to the matter mentioned by the district attorney. To this the court replied: the stand at all; but, when the defendant has "The law don't require the defendant to take taken the stand, I don't think she is protected after that. I think the district attorney is within his rights." The district attorney then continued his address, amplifying and emphasizing his previous remarks upon the failure of the defendant to testify about illegal sales of liquor at her place of business. We have no doubt that in making said statements to the jury the district attorney was guilty of misconduct, and that the court erred in overruling defendant's exceptions thereto. Section 1323 of the Penal Code provides that the neglect or refusal of a defendant in a criminal action to be a witness "cannot in any manner prejudice him nor be used against him on the trial or proceeding." This section has been held to protect a defendant against adverse comment upon his and Phrases, First and Second Series, Public [Ed. Note.-For other definitions, see Words Building.] failure to testify, not only where the defend- [ to require buildings to be constructed of fireant was not a witness, but also where the proof material, etc. defendant was a witness, but omitted to testify concerning some of the elements of fact at issue in the case. People v. McGungill, 41 Cal. 429; People v. Sanders, 114 Cal. 216, 231, 46 Pac. 153; People v. Morris, 3 Cal. App. 1, 84 Pac. 463. We think that this misconduct and error was so far prejudicial to the defendant that Justice requires a reversal of the judgment. The evidence in the record fails to show that defendant had any knowledge of the illegal sale of liquor which constituted the principal item of evidence on the part of the prosecution until after that transaction had been completed, and also fails to show that she had knowledge of any previous violations of the law by her agent until after they had occurred. There is no direct evidence that she ever advised or approved of those illegal acts. She did not reside at, and was not usually present at, said place of business. In effect, the evidence against her is circumstantial, and is not so far conclusive that we are warranted in using section 42 of article 6 of the Constitution as a ground for affirming the judgment. Some other questions of importance are discussed in the briefs, but they probably will not arise in connection with a second trial of the case. The judgment is reversed. We concur: JAMES, J.; SHAW, J. (52 Utah, 540) 4. MUNICIPAL CORPORATIONS POWER IN GENERAL. 589-POLICE. Police power conferred on cities should be construed and applied so as to meet the dangers incident to and arising out of the subjectmatter covered. 5. EVIDENCE 5(1) JUDICIAL NOTICEMATTERS OF COMMON KNOWLEDGE. The Supreme Court is required to take judicial notice of all matters which are known to all the inhabitants of the cities of the state. 6. EVIDENCE 5(2)-COMMON KNOWLEDGELOCATION OF SCHOOL BUILDINGS. Every one knows that public school buildings of the state are not located in the business districts of cities or in the most densely populated portions. 7. EVIDENCE 5 (2)—COMMON Knowledge— LOCATION OF SCHOOL BUILDINGS. It is known by all that public school buildings in cities of the state are constructed on sites which are usually more extensive than the ground plans, and that all school buildings are segregated or detached from all other private or public buildings. 8. EVIDENCE 12-COMMON KNOWLEDGE LOCATION OF SCHOOL BUILDINGS. It is known to every one that the school population in the cities of the state is numerically greater in each succeeding year, and that such growth generally extends over entire resident portions, and while in many instances too large to be accommodated in existing school buildings is nevertheless too small from year to year to justify erection of school buildings such as would be necessary for permanent use. It must be assumed, in view of Laws 1915, c. 100, by which Comp. Laws 1907, § 206, was SALT LAKE CITY v. BOARD OF EDUCA- completely rewritten and re-enacted, that Legislature did not intend to confer unnecessary powers on city authorities respecting control of public school buildings and did not intend to hamper school boards in control of such buildings. TION OF SALT LAKE CITY et al. (No. 3269.) (Supreme Court of Utah. Oct. 9, 1918.) 1. MUNICIPAL CORPORATIONS 601-BUILD. 10. STATUTES ING REGULATIONS-SCHOOL BUILDINGS POWER OF CITY. Comp. Laws 1907, § 206, subds. 55, 56, do not give to cities the power to regulate the construction of public school buildings, in view of sections 1892-1961, placing control of public schools of cities of first and second class in boards of education of such cities, section 1962 as to compulsory attendance, and Const. art. 10, as to control of public school system being vested in Legislature. 2. MUNICIPAL CORPORATIONS 601-POLICE POWER-CONSTRUCTION OF SCHOOL BUILDINGS-REGULATION BY CITY. The mere fact that no police powers are vested in boards of education is not decisive of the question whether the state has by Comp. Laws 1907, § 206, surrendered to cities police power over public school buildings. 225-CONSTRUCTION - PABI It must be assumed that it was intended that all the laws which affect the public schools and school buildings of the state are to be considered as pari materia and so construed and applied. 11. MUNICIPAL CORPORATIONS ORDINANCE-VALIDITY. 603-FIRE Ordinance of Salt Lake City, § 435, requiring the placing of fire alarms or telephones in all school buildings, is valid. Appeal from District Court, Salt Lake County; P. C. Evans, Judge. Action by Salt Lake City against the Board of Education of Salt Lake City, and John E. Anderson and another, a copartnership. Judgment for the city, and defendants appeal. Reversed and remanded. Cheney, Jensen & Holman, of Salt Lake City, for appellants. W. H. Folland, City Atty., and H. H. Smith and W. W. Little, Asst. City Attys., all of Salt Lake City, for respondent. FRICK, C. J. Salt Lake City, a city of the first class, hereinafter called respondent, commenced this action in the district court of Salt Lake county to enjoin the board of education of Salt Lake City, John Anderson, and Charles L. Carlen, hereinafter styled appellants, "from proceedings further in the construction" of a certain school building until the ordinances hereinafter referred to shall have been complied with. [1] The respondent in its complaint, after alleging the necessary matters of inducement, and after setting forth those portions of the city ordinances which it was alleged were being violated by the appellants, sets forth its cause of action in the following words: "That on or about the 1st day of June, 1913, the defendant board of education of Salt Lake City made and entered into a contract with the said John E. Anderson and Charles L. Carlen for the erection of a three-story nine-room annex to the Sumner school building in Salt Lake City, Utah, and as plaintiff is informed and believes, and therefore alleges, said contract was made in disregard of the said building code of Salt Lake City, and was made by said board of education with full knowledge that the specifications for said annex to said school building were not in conformity with said building code, and particularly with sections 275 and 280 thereof, which sections were thereafter violated by said board of education, its officers and agents, in proceeding with the erection of said three-story annex to said Sumner school of Class C, or non fireproof material, instead of Class A or Class B, or fireproof construction, as required by said sections, which are hereto attached, marked Exhibits A and B, and made a part of this complaint. "That notwithstanding the provisions of section 258 of said ordinance requiring the taking out of a permit from the building inspector of Salt Lake City, neither said board of education nor said contractors have secured a permit for the construction of said school building, as required by said ordinances, but have proceeded with and are now engaged in the construction of said nonfireproof building, and will continue and complete the construction of said building under said contract unless restrained by this court, without taking out a permit as required by said section, which section is as follows: "Sec. 258. Permits.-No work except minor repairs shall be done upon any structure, building or shed in the city of Salt Lake without a permit from the inspector of buildings.' "That plaintiff believes, and therefore alleges, that the failure of said contractors to secure said permit is due to the refusal of the said board of education to recognize the power of said plaintiff to make and enforce said building regulations, and the claim by said board that such building regulations are inapplicable to said school building or to any school building erected under the authority of said board. "That notwithstanding the provisions of section 435 of said ordinance requiring the placing of fire alarms or telephones in all school buildings in Salt Lake City, the said board of education has made no provision for the placing of a fire alarm or telephone either in said annex or in the existing Sumner school building in compliance with said ordinance, but has refused to do so, and as plaintiff is informed and believes, and therefore alleges, said board of education will continue to refuse to comply with said ordinance unless required to do so by an order of court. Said section 435 is hereunto attached, marked Exhibit C, and made a part of The appellants interposed a general de murrer to the complaint which was overruled. They elected to stand upon their de murrer, and judgment was duly entered enjoining them "from proceeding further in the construction of the three-story annex to the Sumner school building in Salt Lake City, Utah, until the said defendants, their employés, servants, and agents, have complied with the ordinances of Salt Lake City in respect to requiring the securing of a permit for the construction of said building from the building inspector of Salt Lake City, and requiring the installation of fire alarms or telephones in said school building, and requiring the construction of said building of fireproof material in compliance with the ordinances of said city, or until the further order of this court." To reverse the judgment appellants prosecute this appeal and insist that the court erred in overruling the demurrer. The ordinances referred to classify the buildings and prescribe the character of the material that shall be used in the construction of each class, and also provide how the buildings shall be constructed with respect to entrances and exits, etc. In short, the ordinances constitute a complete building code. The ordinances in question here are based on Comp. Laws 1907, § 206, and more particularly on subdivisions 55 and 56 of that section. Subdivision 55 provides that the city commission shall have power"to define the fire limits, and prescribe limits within which no building shall be constructed except of brick, stone, or other incombustible material, without permission, and to cause the destruction or removal of any building constructed or repaired in violation of any ordinance, and to cause all buildings and inclosures which may be in a dangerous state to be put in a safe condition or removed." Subdivision 56 provides that the city commission shall have power"to prescribe the manner of constructing stone, brick, and other buildings, and the construction of fire escapes; and to cause all buildings used for public purposes to be provided with sufficient and ample means of exit and entrance, and to be supplied with necessary and appropriate appliances for the extinguishment of fire, to prevent the overcrowding thereof, and to regulate the placing and use of seats, chairs, benches, scenery, curtains, blinds, screens, or other appliances therein." The ordinance respecting fire alarms, which is referred to in the complaint, among other things, provides: "There shall be a fire alarm or telephone directly connected with the fire department in all theatres, moving picture buildings, schoolhouses," etc. The contention of appellants' counsel can perhaps be best stated in their own language as contained in their printed brief. say: They "The question for decision is as to whether the plaintiff city, acting in pursuance of the police powers conferred upon it by general law, may impose building restrictions or regulations upon the defendant board of education in the erection of school buildings. The reasonableness of such regulations is not questioned, but |