privity of estate between the parties to the action. The removal of this rock, of necessity, will materially injure the value of the contingent estate in the land, and, being removed for a forbidden use, it constitutes sufficient ground for the interposition of equity. It is our opinion that the restrictive clause may be considered as a limitation in favor of the grantors upon the use of the estate granted, and against the grantee, its lessees, and assigns, made for the purpose of feeding and protecting the grantors' contingent estate reserved by the next succeeding clause of the deed, and that it is also a personal covenant binding on the successors in interest of the grantee, by which they are prohibited from removing the rock for the use they are making of it; and hence that they may be restrained from so doing. We do not consider the question whether or not the covenant was one which runs with the land to be material to the decision of the case.

The objection that the complaint does not show that the plaintiff is an heir or assign of the original grantors is not well taken. It alleges that the plaintiff is, and has been ever since November 10, 1900, the owner in fee simple of all the lands described in the deed in question, "subject only to the terms and provisions" of the said deed. This means that he is the owner of all the estate and rights reserved therein to the grantors. He could only become such owner by descent or purchase from the grantors or their successors in interest; and hence he is either an heir or assign. Respondents also contend that if the qualifying clauses of the deed are to be considered effectual to forbid the sale or other disposition of the rock taken from the seven acres, they constitute a contract in restraint of trade, and are void for that reason. This claim is based on the theory, which we hold untenable, that the deed does not forbid the quarrying or removal of rock, but only forbids certain uses of it after such removal. Where a grantor reserves a contingent estate in the land granted, and a condition or covenant is inserted in the deed forbidding the grantee from removing for certain uses a part of such realty, the removal of which would lessen the value of such contingent estate, such condition or covenant is a lawful contract for the protection of the grantor's interest, and cannot be deemed a contract in restraint of trade. By the terms of the cov

CL Cal.-4

enant the parties are not to be restrained from engaging in the business of quarrying or selling rock in general, but only from taking for that purpose certain rock in which the plaintiff has an interest.

It is further contended that an action to recover damages for waste, or to restrain waste, cannot be maintained by one having only a contingent estate, to become vested only upon a forfeiture for a violation of a condition subsequent. So far as the claim for damages for waste already committed, based upon the ownership by the plaintiff of such contingent estate, is concerned, this contention must be sustained. The plaintiff's interest is not vested (Civ. Code, secs. 693, 695); and hence he has no present property in the rock removed, for the value of which damages can be computed, or to which he could have the right of present possession. (Hunt v. Hall, 37 Me. 363; Peterson v. Clark, 15 Johns. 205; Sager v. Galloway, 113 Pa. St. 500, [6 Atl. 209]; Brashear v. Macey, 3 J. J. Marsh. 93; Cannon v. Barry, 59 Miss. 289; Gordon v. Lowther, 75 N. C. 193.) But the rule is different with regard to the equitable remedy by injunction. The owner of a contingent interest may protect that interest against deterioration or destruction by enjoining a threatened waste. This is well settled by the authorities. (Hayward v. Stillingfleet, 1 Atk. 422; Robinson v. Litton, 3 Atk. 209; Brashear v. Macey, 3 J. J. Marsh. 93; Cannon v. Barry, 59 Miss. 289; Miles v. Miles, 32 N. H. 147, [64 Am. Dec. 362]; Petersen v. Ferrell, 127 N. C. 169, [37 S. E. 189]; Cowand v. Meyers, 99 N. C. 198, [6 S. E. 82]; Gordon v. Lowther, 75 N. C. 193; Braswell v. Morehead, 45 N. C. 26, [57 Am. Dec. 586]; Lewisburg University v. Tucker, 31 W. Va. 621, [8 S. E. 410].) It comes within the rule that an injunction will be granted to prevent an injury to real property which consists of the removal or destruction of the substance of the estate, or where the party injured cannot be adequately compensated in damages, or where the resulting damages cannot be measured by any certain pecuniary standard. (Richards v. Dower, 64 Cal. 63, [28 Pac. 113]; Silva v. Garcia, 65 Cal. 592, [4 Pac. 628]; More v. Massini, 32 Cal. 595; 16 Am. & Eng. Ency. of Law, 361.)

With respect to the breach of the covenant not to take rock, except for the permitted purposes, the breach of such a con

tract, of itself, constitutes a cause of action for at least nominal damages. Whether, in view of the nature of the plaintiff's interest, anything more can be recovered, is a question not discussed by counsel, and, as it is not necessary to the decision of the case, we express no opinion in regard to it.

From the conclusions we have reached, it necessarily follows that the demurrer should have been overruled.

The judgment is reversed.

[8. F. No. 3572. In Bank.-October 11, 1906.]

HUNT BROTHERS COMPANY et al., Appellants, v. SAN LORENZO WATER COMPANY, Respondent.

BREACH OF CONTRACT-MEASURE OF DAMAGES-PROBABLE RESULT CONTEMPLATED BY PARTIES.-The only damages recoverable for breach of contract are such as the parties may be reasonably supposed, in the light of all the facts known or which should have been known to them at the time of making the contract, to have considered as the probable result of a breach, or as likely to follow therefrom, in the ordinary course of things, and therefore to have, in effect, stipulated against. Other damages are too remote and cannot be recovered.

ID.-BREACH OF CONTRACT FOR WATER SUPPLY-LOSS OF PREMISES BY FIRE, WHEN RECOVERABLE-DEFINITE CONTRACT.-It is only where a definite contract calls for the continuance of an instituted water service for the purpose of extinguishing fires, or calls for a service to be instituted at a definite time, under circumstances known to the parties, making it essential that particular protection from fire should then commence, that loss of the premises by fire may be recovered as having been reasonably supposed to have been within the contemplation of the parties.

ID. INDEFINITE CONTRACT-REMOTE DAMAGES.-Under an alleged contract for a general water supply and for a fire-hydrant to be installed, in which no definite time appears to have been fixed for its commencement, and no special circumstances appear making it essential that the agreed service should be commenced at any particular time, or within a reasonable time, and the rate agreed upon was to begin only when the service was installed, damages resulting from the loss of the premises by fire before the installation of such service, are too remote to be considered as within the contemplation of the parties and cannot be recovered.

APPEAL from a judgment of the Superior Court of Alameda County. F. B. Ogden, Judge.

The facts are stated in the opinion of the court.

Van Ness & Redman, for Appellants.

E. S. Pillsbury, Alfred Sutro, and Pillsbury, Madison & Sutro, for Respondent.

ANGELLOTTI, J.-This is an appeal from a judgment given in favor of defendant, a demurrer to plaintiffs' amended complaint having been sustained, and plaintiffs having failed to amend.

The action was brought to recover $124,496.98, damages, resulting from the destruction of certain property, the injury to other property, and a loss of profits from an established business, all occasioned by fire, which occurred on April 12, 1901, which fire occurred without any fault on the part of plaintiffs. The corporation, Hunt Brothers Company, which will hereafter be called the plaintiff, was the owner of all said property. The numerous other plaintiffs were insurance companies which had, at the time of the fire, policies in force covering respectively various portions of said property, insuring plaintiff against loss by fire, and which had paid plaintiff upon said policies on account of said loss, amounts aggregating $91,221.42, and, having received assignments from plaintiff of its claim against defendant to the extent of the amount so paid by them, are here endeavoring to collect the amount paid by them from defendant.

The plaintiff was engaged in the business of fruit-canning, packing, manufacturing cans, storage of fruits, canned goods, etc. The property injured and destroyed consisted of certain buildings used and occupied in the conduct of said business, machinery and other implements used in such business, and the stock on hand, and seventy-four cottages occupied by employees of plaintiff. All this property was situated on certain premises occupied by plaintiff in Hayward, Alameda County, California. The allegations of the complaint upon which it is sought to hold defendant liable for the amount of this loss are substantially as follows: Defendant was a water

company, engaged in the business of supplying water to the inhabitants of Hayward by means of mains laid in the streets of the town, and pipes running therefrom to the premises of its customers. Some time between September, 1900, and March, 1901, plaintiff and defendant entered into an agreement, whereby defendant agreed to lay a six-inch main from one of its mains charged and supplied with water, to a point near one corner of plaintiff's premises, to connect said premises with this new main by a service-pipe, and to thereupon supply plaintiff by means thereof with one hundred thousand cubic feet of water annually, at the rate of twenty-five cents per one hundred cubic feet, and as much more as might be required at twenty cents per one hundred cubic feet, plaintiff agreeing to consume annually one hundred thousand cubic feet, and pay for it at the twenty-five-cent rate. Defendant further agreed that it would erect and install a fire-hydrant near said premises, to be used by plaintiff in case the premises should take fire, and connect the same with said main, and supply plaintiff by means thereof with water for the purpose of extinguishing any fire which might occur on said premises, in consideration of the payment by defendant to plaintiff of $2.75 a month, which defendant agreed to pay.

No time was specified for the commencement or completion of this work. Defendant laid the new main to a point near one corner of plaintiff's premises, as agreed, but failed to install the service-pipe or the fire-hydrant. On March 14, 1901, plaintiff remonstrated with defendant because of its failure to do these things, and defendant, on March 15, 1901, promised in writing that it would "immediately commence the work" of putting in the service-pipe to connect the premises with the main, and also that it would "immediately commence the work" of erecting and installing said fire-hydrant and connecting the same with the main. It failed to commence to do either of these things prior to the fire.

It is alleged that if defendant had commenced the work of connecting said premises with the main, and the work of erecting, installing, and connecting the fire-hydrant, as it had agreed to do, and had prosecuted said work to an end with ordinary diligence, said premises would have been so connected and said fire-hydrant installed and connected and ready for use in March, 1901, and that if said hydrant had been so installed