defendant paid the rental as it became due for each month up to and including the month of June, 1909; that the rental which became due on July 1, 1909, and August 1, 1909, was not paid; that on August 17, 1909, the defendant repudiated the contract of lease and refused thereafter to be bound by the terms thereof. A prayer for judgment in the sum of six hundred dollars then followed. The complaint was filed on August 19, 1909. An amended answer was filed by defendant to which a demurrer was interposed by plaintiff. This demurrer was sustained without leave to amend, and judgment was entered in favor of plaintiff for the amount prayed for and costs of suit.

"Upon this appeal, taken by defendant, the ruling of the trial court in sustaining the demurrer to the amended answer and the sufficiency of the complaint to support the judgment are the questions to be considered. They will be taken up in inverse order. It will be noticed that the term of hiring of the real property in question extended for four months after the date of the commencement of plaintiff's action. There was contained in plaintiff's complaint no statement that the premises had been abandoned by her lessee or of how she had been damaged by the alleged repudiation of the contract by defendant, other than that the rental becoming due on July 1 and August 1, 1909, remained unpaid. It is claimed by plaintiff that immediately upon the repudiation of the lease contract by defendant, a cause of action for damages arose in her favor, and she might at once sue for the full amount which would become due had the contract run its full term and recover it as damages. That a landlord may have an action for damages for breach of contract when a tenant abandons his lease is not questioned by any of the authorities. His damages, however, in that event, are to be ascertained in a particular way. Where a lease is repudiated and the premises abandoned, the landlord may pursue one of two courses: He may rest upon his contract and sue his tenant as each installment of rent, or the whole thereof, becomes due; or, he may take possession of the premises and recover damages, which damages will be the difference between what he may be able to rent the premises for and the price agreed to be paid under the lease. Where he sues for damages, he cannot in advance recover the full price to be paid for the unexpired term, but the amount of his

recovery is limited as just indicated. (In re Bell, 85 Cal. 119, [24 Pac. 633]; Respini v. Porta, 89 Cal. 464, [23 Am. St. Rep. 488, 26 Pac. 967]; Massie v. State Natl. Bank, 11 Tex. Civ. App. 280, [32 S. W. 797]; Jones on Landlord & Tenant, sec. 140.) It is said by Mr. Gear in his work on Landlord & Tenant: 'If the premises are abandoned without cause, the landlord may elect to leave them vacant and recover rent, or enter and determine the tenancy; but he cannot both enter and treat the contract as subsisting. . . . Under the Roman civil law and in Louisiana, the tenant who abandons during the term may be sued at once for the whole rent of the term.' From the decision in the case of Respini v. Porta, 89 Cal. 464, [23 Am. St. Rep. 488, 26 Pac. 967], we quote: 'But we cannot support him in his contention that because the defendant, against his (plaintiff's) wishes and without right, abandoned the property, he is entitled to recover the full amount provided for by the terms of the lease to defendant. Our code provides that "for the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom." (Civ. Code, sec. 3300.) . . . In cases of this kind the landlord is not entitled to recover for rent of the premises after the abandonment of them by the defendant, but has compensation for the injury, and his measure of damage is the difference between the rent he was to receive and the rent actually received from the subsequent tenant, provided there has been good faith in the subsequent letting.' (Citing cases.)

"It is not claimed by respondent that the action should be viewed as one for the collection of installments of rent under the lease, but it is insisted that it should be considered as one for damages resting upon a claimed abandonment made by the lessee. Respondent's position is that the lease was terminated by the alleged act of appellant, her lessee, in repudiating the contract and refusing to be bound further thereunder. The complaint is lacking in essential allegations entitling the plaintiff to judgment in the superior court for such damages as she may have suffered, and does not therefore properly state a cause of action of which such court had any jurisdiction.

"We have next to consider whether or not the amended answer filed on the part of defendant was sufficient as against the demurrer interposed to it. The lease under which the property was held was in the ordinary form and contained the statement that the plaintiff leased to defendant 'the house. known as "Eagle's Nest" at Las Tunas in the Montecito in the county of Santa Barbara, state of California, together with the grounds immediately around said house with the appurtenances.' In the amended answer, the abandonment of the premises on the 17th day of August, 1909, was admitted, and as excuse and cause therefor defendant alleged, that included within the terms of the lease by way of oral agreement and mutual understanding of the parties at the time the contract was entered into, was the agreement of the plaintiff to supply the premises leased with water for domestic purposes from a water system and plant maintained by and under the control of plaintiff, and that the furnishing of such water was the principal consideration for the rental stipulated to be paid. It was then alleged that the water was so furnished, except that for the months of July and August plaintiff neglected and refused to furnish the same, although notified by defendant so to do, and that defendant vacated the premises and abandoned the lease because of the failure of plaintiff to fulfill her part of the contract in this respect. Nothing was stated in the lease indicating that there was any obligation on the part of plaintiff to supply the premises with water. It is the contention of defendant, however, that as the water was being supplied at the time of the hiring of the real property in question, he should be permitted to show the agreement of the parties in that particular, even though orally expressed. He contends that the furnishing of water was an appurtenance within the meaning of that term as used in the lease contract. Unless proof of the alleged oral agreement of the parties is permitted to be made by way of explaining what was appurtenant to the premises leased, such proof is not competent otherwise, because it would add to the conditions and obligations of the parties as expressed in their written contract. Section 662 of the Civil Code defines an appurtenance as follows: 'A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or

heat from or across the land of another.' Under his lease contract defendant undoubtedly had the right to use those things, and continue to use them during the term of the hiring, which were necessary to or attached to the real property at the time the contract was made. If water was being supplied to the premises from a water system owned or maintained by the plaintiff, the right to the use of the water so supplied would be one which would naturally, and perhaps necessarily, appertain to the leasehold estate. This right, however, in the absence of an express term of the written contract further defining it, would be only to have the water drawn from the supply controlled by the plaintiff and to have it pass through the pipes in which it was customarily conducted to the premises. Under the term 'appurtenances' there could not be implied an agreement on the part of the plaintiff to keep in repair the water system or the pipes leading to the leased premises. Such an agreement would necessarily become an added term of the contract itself; for it would guarantee something to the defendant which was not embraced within the general term 'appurtenances' as contained in the lease. It is not alleged in the amended answer that the plaintiff by any affirmative act prevented the water from flowing from her water system to and through the pipes leading to the leased premises. It is alleged that the plaintiff neglected to repair the pipes and water system when they became in disrepair. The appurtenant right to the water would give to the lessee authority to go upon the premises of the plaintiff, if need be, to make any repairs necessary to secure a continuation in the supply of water, but it would not cast upon the lessor the obligation to make such repairs or require of him that he see to it that the leased premises were kept supplied with water. Such an obligation cannot be imported into the terms of the written agreement through any proper or reasonable interpretation of the word 'appurtenances.' The amended answer, therefore, did not state facts sufficient to show a valid cause for abandoning the lease and vacating the premises, and the demurrer thereto was properly sustained. Plaintiff, however, has secured a judgment to which she is not entitled, because of the fact that her complaint is insufficient for the reasons first stated.

"The judgment is reversed."

We are content to adopt the foregoing opinion as a state

ment of our own views of the case. It may be well, however, to briefly add to it a notice of some contentions which have been more elaborately advanced since the transfer of the cause to this court.

A reading of the complaint indicates that it was framed on the theory that the repudiation of the lease by the lessee operated at once to mature all the rent reserved in the lease and to enable the lessor to recover, not only the installments already accrued, but those to accrue in the future. This contention has been virtually abandoned by the counsel for respondent, although it appears to be still advanced by counsel appearing as amicus curiæ. But the proposition cannot be successfully maintained. It finds no support in the authorities with the exception of a few cases decided in Louisiana, a jurisdiction which is largely governed by the doctrines of the civil law. The general common-law rule is that rent, as such, is not payable until it falls due under the lease (1 Underhill on Landlord & Tenant, sec. 333) and this rule is not altered by the fact that the tenant has abandoned the premises and notified the landlord that he will repudiate the lease (Nicholas v. Sift, 118 Ga. 922, [45 S. E. 708]). Viewing the action as one for rent, it is not distinguishable, in principle, from Tatum v. Ackerman, 141 Cal. 357, [113 Am. St. Rep. 276, 7 Ann. Cas. 541, 3 L. R. A. (N. S.) 908, 83 Pac. 151].)

But it is argued that the plaintiff had the right to recover on the doctrine of "anticipatory breach" (Alderson v. Houston, 154, Cal. 1, [96 Pac. 884]); that is to say, that the defendant's repudiation of the obligations of his lease gave the plaintiff the right to treat the entire contract as broken, and to recover at once the damage sustained by such breach. But in an action to recover for such breach, the measure of damage would be, not the total rent reserved, but the difference between the rent to accrue and the value of the remaining portion of the term. (See cases cited in the foregoing opinion of James, J.) The complaint does not aver that plaintiff has sustained any damage by the defendant's repudiation, nor does it state any facts from which the amount of such damage may be inferred. It avers merely the non-payment for two months, and the repudiation, and then asks judgment for six hundred dollars. There is no allegation that the premises could not have been rented, during the rest of the term, for an amount equal to