It been shipped out of the state before the The judgment and order are affirmed. We concur: VAN DYKE, J.; GAROUTTE, J. (137 Cal. 456) KEE v. DAVIS. (Sac. 933.) (Supreme Court of California. Nov. 7, 1902.) In banc. On rehearing. Denied. Former opinion modified. See 70 Pac. 294. for P. J. Hazen (L. L. Dennett, of counsel), appellant. Edward J. Hill, L. L. Dennett, and E. B. Leaming, for respondent. PER CURIAM. The petition for a rehearing of this cause is denied, but the opinion delivered in department is modified by striking out that portion thereof in which it is said that the specifications of particulars in which the evidence is insufficient to sustain the findings of the court are bad. (137 Cal. 562) PEOPLE v. BOXER et al. (Cr. 951.) (Supreme Court of California. Nov. 7, 1902.) BURGLARY-SUBSEQUENT RECEIPT OF GOODS. 1. On prosecution for burglary, an instruction that if any of the property was stolen from the premises described in the information, and received into possession of either of the defendants shortly after being stolen, a failure to account for such possession, or to show that it was honestly obtained, is a circumstance tending to show guilt, and the accused is bound to explain his possession, was not explicit, and was not a correct proposition of law, as subsequent receipt of the goods did not tend to show guilt. 2. An instruction beginning with the statement that, "to justify the inference of guilt from the facts of possession of stolen property,' etc., and concluding by saying that no definite presumption of guilt could be made from finding the goods in defendant's apartments unless the evidence showed that defendant brought them there, was erroneous, as "no definite presumption of guilt" would arise, though defend. ant did receive the goods. Department 1. Appeal from superior court, Lake county; R. W. Crump, Judge. George Boxer and Charles San Diego were convicted of burglary, and appeal. Reversed. Thomas B. Bond, for appellants. GAROUTTE, J. The defendants, two Indians, have been jointly charged, tried, and convicted of the crime of burglary, and now appeal from the judgment. The evidence upon the part of the people tended to show that they entered a certain saloon building and committed larceny therein by taking therefrom certain personal property, consisting of cigarettes, a bottle of gin, etc. There was also evidence offered by the people tending to show that this property, or a portion of it at least, was found in the possession of one or both of these defendants a short time after the unlawful breaking and entering is claimed to have occurred. The court gave the jury the following instruction: "If the jury believe from the evidence, beyond a reasonable doubt, that any of the property mentioned in the evidence was stolen from the premises described in the information and received into possession of either of the defendants shortly after being stolen, the failure of such defendant to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and the accused is bound to explain his possession in order to remove the effect of his possession as a circumstance to be considered in connection with other suspicious facts, if the evidence discloses any such." This instruction upon its face is not clear and explicit, but, on the contrary, is quite confusing. At the same time we deem it unsound, as declaring a principle of criminal law. As already stated, the defendants were upon trial charged with burglary, and, that being the case, the mere fact, if it be a fact, that subsequent to the burglary they received the fruits of the crime into their possession, cannot be said to be a circumstance tending to show their guilt of the crime of burglary. In cases of larceny, the recent unexplained possession of the stolen property is a circumstance tending to show guilt. Probably the same may be said as to the recent unexplained possession of stolen property the fruits of a burglary, but this instruction assumes that the defendants may have received the stolen property into their possession after the burglary was committed by other parties. It is very evident that nothing which these defendants could do in the way of accepting or holding the possession of the stolen property after the burglary had been committed would tend to prove their guilt of the crime of burglary. Indeed, the instruction assumes the commission of the burglary by another prior to the possession of the property by these de fendants. Under the statement of facts as presented by the instruction, the defendants would not be called upon to show how and by what means they came into possession of the property taken from the building, and the circumstance of possession in them could in no way tend to show their guilt of the crime of burglary. The court also gave a second instruction, as follows: "To justify the inference of guilt from the facts of possession of stolen property, it must appear that the possession was personal; that it involved a distinct and conscious assertion of possession by the accused, or that he brought them there; and therefore a finding of stolen property in the house of either defendant in this case, or apartment, is not a circumstance tending to show guilt against him, unless the house or room be in his exclusive occupation, unless the jury believe from the evidence that he brought it there. If the property were only found lying in a house or room in which the defendant lived jointly with others equally capable of having committed the theft, no definite presumption of guilt can be made, unless the evidence shows that he brought them there." This instruction is clearly misleading to the defendants' prejudice. It begins by saying: "To justify the inference of guilt from the facts of possession of stolen property." It may be declared as a principle of law that the mere possession of stolen property by a defendant is not sufficient evidence upon which to justify an "inference of guilt" by the jury. There must be other circumstances besides the recent unexplained possession of stolen property to justify a verdict of guilty, either of burglary or larceny. Again, the instruction concludes, in speaking as to possession of stolen property, by saying: "No definite presumption of guilt can be made unless the evidence shows that he brought them there." As already suggested, evidence of the recent unexplained possession of stolen property, standing alone, is not sufficient to justify a verdict of guilty, even in a case of larceny, and the court is not justified in intimating to the jury that a "definite presumption of guilt" could arise upon any such state of facts. For the foregoing reasons the judgment is reversed, and the cause remanded to the trial court. We concur: HARRISON, J.; VAN DYKE, J. (7 Cal. Unrep. 44) 1. A complaint seeking to compel a water company to supply plaintiff's premises with wa 1 Reversed in banc. See 72 Pac. 395, 139 Cal. 22. ter, which alleged, in terms, that the water controlled by the defendant had been appropriated to public use, was not so deficient in that regard as to be subject to a general demurrer, though the facts might have been more specifically stated. 2. The waters of a certain creek had been diverted by a ditch and distributed among the neighboring inhabitants, including plaintiff's grantor, for more than five years prior to the formation of a company for the principal purpose of supplying water to the stockholders and others entitled thereto, whether as riparian owners or as appropriators. This company, with the acquiescence of all parties, diverted the water into pipes, and for 25 years delivered it to those entitled thereto. Held, that by a prescription of 30 years, confirmed by an implied contract, plaintiff was entitled to demand that the company continue to supply him his share of the water on payment of reasonable rates. 3. Const. art. 14, § 1, declares the use of water appropriated for sale, rental, or distribution" to be a public use. A complaint alleged that the waters of a certain creek had been ap propriated by a company to public use. It was proved that the company controlling the water of the creek was formed for the principal purpose of distributing it to those entitled thereto by a prior appropriation to public use or as riparian owners. Held, that there was no va riance. 4. Where several of those entitled to the waters of a certain creek, as a public use, formed a corporation for the purpose of distributing the water, and all but one of those entitled thereto subsequently became stockholders, the use was not thereby rendered any the less a public one. 5. Where the rights of a community to the water of a certain creek were appurtenant to the lands of the individuals composing the community, each individual landowner had an appropriative right to his share of the water. 6. Where one had an appropriative right as a landowner to his share of the water of a certain creek, and the water was afterwards taken by a corporation for the purpose of distributing it to those entitled thereto, the landowner could not be restricted, by way of estoppel or contract, in the appropriative right to his share, by by-laws of the corporation of which he had no notice. 7. Where one had an appropriative right as a landowner to his share of the water of a cer tain creek, and the water was afterwards taken by a company for the purpose of distributing it to those entitled thereto, and the landowner for eight years was not supplied by the company, after which he regularly received his share from it, he did not lose his right by an adverse user of the company during the intervening period. Commissioners' decision. Department 1. Appeal from superior court, Santa Barbara county; W. S. Day, Judge. Action by Edward Hildreth against the Montecito Creek Water Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. G. H. Gould, for appellant. Canfield & Starbuck, for respondent. SMITH, C. This is an appeal from a judg ment adjudging plaintiff entitled to have his premises in the Montecito, in the county of Santa Barbara, known as the "Lorenzana Place," supplied with water from the pipes and waterworks of defendant corporation, as the same were being supplied at the time of the commencement of the suit, at the rate of $1 per month, or such other reasonable rate as may hereafter be lawfully fixed for such water supply, and that defendant, its officers, etc., provided the rates be paid, be perpetually enjoined from shutting off from said premises the water supply aforesaid. The grounds urged for reversal, in addition to some alleged errors of law that will not require consideration, are that the complaint does not state a cause of action, that the judgment is not supported by the findings, and that certain of the findings are not justified by the evidence. The objection to the complaint is, in effect, that it is not sufficiently alleged that the waters controlled and managed by the defendant have been appropriated or dedicated to public use. But it is so, in terms, alleged; and, though the facts might have been more specifically stated, the complaint, in the absence of special demurrer, is, we think, sufficient. The objections to the findings are that there is a fatal variance between the case as found and as alleged, and that the findings are otherwise insufficient to support the judgment. The case, as affected by these objections, is as follows: For more than five years prior to the year 1877, the waters of Hot Springs creek, to the extent of its entire summer flow, had, by means of a ditch, been diverted from their natural channel and distributed generally among the inhabitants of the Montecito, in the neighborhood of the creek, including plaintiff's predecessors in title, and by them appropriated and adversely used on their respective lands, and as appurtenant thereto; and the said inhabitants had thereby become entitled, as appropriators, to the use of said waters. But in June of that year certain of the inhabitants, riparian owners on Montecito creek and its tributaries, of which Hot Springs creek was one, posted above the head of the ditch used by the inhabitants, and caused to be recorded, a notice of appropriation of the waters of the creek, for the purpose, as expressed in said notice, "of furnishing themselves and other riparian proprietors upon said [Montecito] creek and its tributaries with water for household and domestic purposes, watering stock, bathing, irrigating grounds, land, and premises, propelling machinery," etc., "and for the purpose of selling and supplying for like purposes water to other inhabitants," etc.; and in August, 1877, a corporation was organized by these parties, named the Montecito Water Company, having, as expressed in its articles, the same objects, but, as found by the court, its principal object being to supply with water themselves and others entitled, as riparian proprietors or as appropriators, to the use of the waters of said creek. By this corporation the waters of the creek were diverted, by means of a pipe connecting with the creek above the head of the old ditch, and distributed among the inhabitants of the Montecito "who were riparian owners on said creek, and to other persons in said Montecito whose lands were 70 P.-43 in the neighborhood of said creek, though not riparian thereto." Of the persons thus supplied, most were stockholders of the company, who were supplied with water as such; but others who were not stockholders were also supplied, and charged monthly rates for the use of the company's works and for the water supplied them. Among the latter were Lorenzana and wife, the occupants of the place now owned by the plaintiff; and they and the plaintiff have respectively ever since been supplied with water by the Montecito Water Company and its successor, the defendant, at the monthly rate of $1. After the formation of the former company most of the persons entitled to water, and finally all other than the Lorenzanas and the plaintiff, became stockholders of the corporation. Upon this state of facts, leaving out of view the question of variance, it is clear the plaintiff was entitled to recover. His predecessors in title, the Lorenzanas, it is expressly found, were in the year 1877 entitled to the use of the water of the Hot Spring creek in common with other owners of land in the Montecito. Nor were any of the subsequent transactions of the parties of a character to affect their rights or those of the plaintiff. The appropriation and use of the water by the predecessor of defendant were not adverse. On the contrary, it is found that the principal object of the original incorporation was the distribution of the waters of the creek among those entitled to it; and the conduct of the defendant in carrying out this object, and the acquiescence of the other parties, must be taken as constituting a contract between them and the defendant, imposing upon the latter the obligation to distribute the water according to the rights of the parties, and upon the former the obligation of paying a reasonable proportion of the expenses incurred in carrying out this object. It may be said, therefore, that the plaintiff's right to the water he has been using is supported by an uninterrupted prescription of over 30 years, confirmed by contract, and that, so long as the defendant continues to divert the water of the creek, it will remain subject to the obligation of delivering to the plaintiff his share upon the payment of reasonable rates. As to the supposed variance, we do not see there is any. For not only has the water in question been appropriated for sale, rental, and distribution, within the language and intent of the provisions of section 1, art. 14, of the constitution (Price v. Irrigating Co., 56 Cal. 433; McCrary v. Beaudry, 67 Cal. 120, 7 Pac. 264; Merrill v. Irrigation Co., 112 Cal. 426, 44 Pac. 720; Crow v. Irrigation Co., 130 Cal. 309, 62 Pac. 562, 1058), but the original appropriation of the water to the use of the inhabitants of the Montecito was itself an appropriation to public use, and the waters thus appropriated came, impressed with this use, into the hands of the predecessor of the defendant, which thus became charged, and its successor after it, with the administration of the use (Bouv. Law Dict., "Public Use;" Waterworks Co. v. Bird, 130 N. Y. 249, 259, 29 N. E. 246, and authorities cited; Witcher v. Waterworks Co., 66 Hun, 619, 20 N. Y. Supp. 560; Lewis, Em. Dom. c. 7). Nor is the use to which the water was originally appropriated any the less a public use because of the fact that all of the beneficiaries, other than plaintiff, have become stockholders of the company. Upon the facts found, the original corporation is to be regarded, so far as the water in question is concerned, as a mere agency of the parties entitled to the use of the water, whether stockholders or others, for the purposes of distribution. Shorb v. Beaudry, 56 Cal. 446. It acquired no rights to the water by its notice of appropriation, except to the surplus after the satisfaction of the public use. Nor does it appear to have since acquired any further rights, either by purchase or by prescription. It is, however, objected that the evidence is insufficient to justify the finding as to the rights of the predecessors of the plaintiff and other inhabitants of the Montecito to the use of the waters in question; the specific objection being "that no use is shown that is definite enough to constitute an appropriative right in any individual." But It is well settled that an easement may be acquired by an unincorporated community, as well as by individuals,-the only difference being that in the former case it is said to be acquired by custom; in the latter, by prescription. Washb. Easem. 7, 137, 146; Godd. Easem. 18; Co. Litt. 113a et seq. But where the rights thus acquired by the community are appurtenant to the several lands of the individuals composing it, there is acquired also by each owner an individual right; the relations of the parties being analogous to those of partners, or the members of unincorporated associations, or other joint owners. may be therefore at the same time a public easement in the community, and a private easement in each of its individual members (Jones, Easem. § 82); and the individuals entitled to the use may, where their rights are attacked, avail themselves of either or both. There It is further objected, that the plaintiff and his predecessors received the water allowed them under certain conditions prescribed by the by-laws of the company, and thus became restricted, either by way of contract or estoppel, to the use of the water at the option of defendant. We do not quite understand the argument, but, whatever might otherwise be its force, it is sufficiently met by the fact that there is nothing to show that they knew of or accepted any conditions affecting their rights. Finally it is claimed that it appears from the evidence that from 1877 to 1885 Lorenzana was not supplied from the pipes of the company, but got such water as leaked from its flume only. But how this is, we need not CITY OF SONORA v. CURTIN. (Sac. 969.) (Supreme Court of California. Nov. 13, 1902.) MUNICIPAL ORDINANCES-LICENSE TAX ON ATTORNEYS-VALIDITY-REPEAL. 1. A license tax on attorneys imposed by municipality pursuant to the authority conferred by St. 1883, p. 93, § 882, subd. 10, empowering municipalities to license "for purposes of regulation and revenue" every business authorized by law carried on therein, and to fix the rates of license, is unauthorized as a regulation of the business or profession of practicing law, and can only be sustained, if at all, as a revenue measure. 2. Since the power of municipalities to impose a license tax on business for purposes of revenue is impliedly repealed by Act March 23, 1901 (Pol. Code, § 3366), limiting their power to license for the purpose of regulation, a municipal ordinance imposing a license tax on attorneys as a revenue measure is also repealed. 3. A provision of an ordinance creating a remedy to collect a license tax is repealed by the repeal of the provision imposing the tax. Commissioners' decision. Department 1. Appeal from superior court, Tuolumne county; G. W. Nicol, Judge. Action by the city of Sonora against J. B Curtin. From a judgment for plaintiff, defendant appeals. Reversed. J. B. Curtin (J. C. Webster, J. P. O'Brien, A. A. Smith, and E. W. Holland, of counsel), for appellant. Crittenden Hampton, for respondent. COOPER, a Plaintiff recovered judgment in a civil action against defendant for $3, the amount claimed to be due for refusing to take out a license, and for the further sum of $10, penalty and costs of suit. De fendant appeals from the judgment. On June 4, 1900, the board of trustees of the city of Sonora passed an ordinance which contained the following provisions: "Section 1. Any person doing any business, or engaged in any pursuit hereinafter named, within the city of Sonora shall, before commencing such business or engaging in such pursuit, obtain from the city marshal a license therefor, and pay for the same at the following rates, viz: • "Fifty-fourth-Every attorney-at-law shall pay a license of $3 per quarter. "Sec. 6. All persons who shall transact or perform any business or calling in this ordinance specified, for which license is required, without such license duly signed, shall, upon conviction thereof before a court of competent jurisdiction, be fined in the sum of not less than ten dollars nor more than three hundred dollars, or be imprisoned not more than thirty days." It was further provided in said ordinance that the license imposed thereunder shall be deemed a debt due the city of Sonora, and that the same may be recovered in a civil action in the name of the city, with the additional sum or penalty of $10. Defendant was, at the time of the passage of the ordinance, an attorney at law, admitted and licensed to practice in all the courts of the state, and he was then engaged, and continued thereafter to be engaged, in the practice of the law in the city of Sonora within the territory covered by said ordinance. He neglected and refused to procure a license under said ordinance, or to pay the license tax imposed by its terms. Plaintiff is a municipal corporation of the sixth class, incorporated under an act of the legislature entitled "An act to provide for the organization, incorporation and government of municipal corporations," approved March 13, 1883 (St. 1883, p. 93). The authority for passing the ordinance is claimed under subdivision 10 of section 862 of the act, which was in force at the time of its passage, and which provides that boards of trustees of municipal corporations of the sixth class shall have power "to license, for purposes of regulation and revenue, all and every kind of business authorized by law and transacted or carried on in such city or town, to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise." If it be conceded that the practice of law is a "business authorized by law and transacted or carried on in such city or town," within the meaning of the statute, and that the provision, "Every attorney-at-law shall pay a license of $3 per quarter," is a provision for a license tax upon the business of practicing law, and not upon the person because he is an attorney at law, is it a license tax imposed for the purpose of revenue, or is it a regulation under the police powers of the town? It is well settled that a business or occupation may be taxed, under authority to tax for the purposes of reve nue, and in such cases the tax is properly a license tax. A license in its proper sense is a permit to do business which could not be done without the license. It is evident that the license tax imposed by the ordinance in question is not a license in the sense of a permit to defendant to practice law, because he already has a license and has paid the fee therefor, which permits him to practice law. Although a business, occupation, or profession may be thus licensed, by having a license issued which permits the business to be carried on, still it may, under a proper statute, be subject to an additional license tax. Now the defendant here having obtained his license, which permits him to practice law, the ordinance in question could not take away that license or permit, because of the refusal to pay the license tax. The ordinance, therefore, plainly by its terms imposed the charge as a license tax. It is called in the ordinance a "license tax," and it is therein said the license tax shall be deemed a sum due the city. The tax was not imposed as a police regulation. A police regulation or restraint is for the purpose of preventing damage to the public or to third persons. There are certain lines of business, and certain occupations, which require police regulation because of their peculiar character, in order that harm may not come to the public, or that the threatened danger may be averted. Where the profession or business is not dangerous to the public, either directly or indirectly, it cannot be subjected to any police regulation whatever, which does not fall within the power of taxation for revenue. If the board, in this case, had the power to issue the license, as a police regulation, it would have the power to prohibit the defendant from practicing law without the 11cense. There is nothing about the practice of the profession of the law which makes the business dangerous to the public. It does not threaten the public health or safety, nor is it demoralizing to the public. It is one of the most honorable and learned professions, and its members are among the most conservative citizens in any community. It is said by Judge Cooley, in his work on Constitutional Limitations (6th Ed., p. 744): "The general rule undoubtedly is, that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away. It is not competent, therefore, to forbid any person or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing him." In Tiedman's Limitations of Police Power, p. 272 et seq., the subject is thoroughly discussed, and the author says (page 281): "It is, therefore, conclusive that a general requirement of allcense for the pursuit of any business that is not dangerous to the public can only be justified as an exercise of the power of taxation, or the requirement of a compensation for the enjoyment of a privilege or franchise." In City of St. Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462, it was held that an ordinance imposing a license tax upon farmers or gardeners selling vegetables on the streets was not within the police powers of the city authorities. In the opinion it is said: "The business itself is of a useful character, nelther hurtful nor pernicious, but beneficial |