the papers mentioned, of the demised premises, renders them liable to be proceeded against under the act concerning forcible entry and unlawful detainers. 157

§ 2961. Relation of landlord and tenant. The production of a lease in evidence will not, of itself, prove the relation of landlord and tenant to have existed between the lessor and lessee, but the entry of the lessee under the lease, or a holding by him. referable to the lease, must also be proven.' 158 A., who claimed to be in possession of a tract of coal-bearing land, made a verbal agreement with B. and C., by which they were to prospect for coal until they struck a particular seam or ledge, and before they struck this ledge, they were to do all the work, and have two-thirds of the claim; but after the ledge was struck the work was to be prosecuted by the parties jointly, A. to bear onethird of the expenses, and B. and C. two-thirds; it was held that this agreement did not create the relation of landlord and tenant, between A. and B. and C., but that it made them tenants in common, or partners in mining, and that the action of unlawful detainer was not the proper remedy for A., if excluded from the premises by B. and C.159 An action for an unlawful holding-over can not be maintained, unless the relation of landlord and tenant is shown to exist between the plaintiff and defendant at the time of making demand for possession.160

§ 2962. Repairs - duty of tenant. If the embankment of a natural reservoir, which is filled with water by unusual rains, is broken by a stranger, so that the demised premises are injured by the water, the injury is not the act of God or of the elements, and the tenant is bound to repair even if "damages by the elements or acts of Providence" are excepted from his covenant.161

2963. Rent. There is no error in finding the amount of rent due at the time of the trial.162 If the tenant is forcibly 157 Kower v. Gluck, 33 Cal. 401. As to the necessary parties defendant, see Cal. Code Civ. Pro., § 1164.

158 Calderwood v. Center, 30 Cal. 539; 89 Am. Dec. 131.

159 Henderson v. Allen, 23 Cal. 519.

160 Steinback v. Crone, 36 Cal. 303; Reay v. Cotter, 29 id. 168; Pico v. Cuyas, 48 id. 639. In addition to the summary remedy, see Cal. Civil Code, § 793, and the remedy therein provided; see, also, Hawxhurst v. Lobree, 38 Cal. 563.

161 Polack . Pioche, 35 Cal. 416; 95 Am. Dec. 115.

162 Mason v. Wolff, 40 Cal. 246.

evicted by the landlord from a substantial part of the demised premises, but continues to occupy the remaining portion under the lease, he can not be proceeded against in unlawful detainer for the nonpayment of rent while the eviction lasts.163

§ 2964. Reversal of judgment. If plaintiff recovers judgment and is placed in possession of the land, and defendant appeals, and the judgment is reversed, the latter is entitled to be restored to the possession, even if the plaintiff has leased the premises. 164

2965. Tenant at will. A tenant at will is one who holds rent-free by permission of the owner, or where he enters under an agreement to purchase, or for a lease, but has not paid rent. The great criterion, by which to distinguish between tenancies from year to year and at will, is the payment or reservation of rent. 165

A tenancy at will can not exist without express grant or contract, and where it does exist, the tenant is entitled to reasonable notice of his landlord's intention to terminate the estate before an action can be maintained against him for the possession.166 A grantor who remains in possession does so as tenant at will of the grantee.167 Notice of not less than one month is required to terminate it.168

§ 2966. Tenancy for years. A tenancy for the specified period of one month is a tenancy for years, and not a tenancy from year to year or month to month; but if a tenant for the specified period of one month holds over with the consent of his landlord, he thereby becomes a tenant from month to month.169 An estate for years is one that is founded upon contract, express or implied, which is not determinable at the will of either party, but endures for a time certain.170

§ 2967. Tenant, liability, rights, and duties of. An under tenant who takes a lease and receives possession from the tenant

163 Skaggs v. Emerson, 50 Cal. 3.

164 Pico v. Cuyas, 48 Cal. 639.

165 Bouv. Law, Dict.

166 Blum v. Robertson, 24 Cal. 128.

167 Brooks v. Hyde, 37 Cal. 366.

168 Cal. Civil Code, § 789; Groome v. Almstead, 101 Cal. 428. 169 Stoppelkamp v. Mangeot, 42 Cal. 317; Utah Loan & Trust Co. v. Garbutt (Utah), 23 Pac. Rep. 758; Hurd v. Callicutt, 4 Col. 77. 170 Washb. on Real Prop., vol. 1, p. 43 (44th ed.); Brown v. Bragg, 22 Ind. 122.

becomes the tenant of the landlord, subject to all the duties and liabilities of a tenant to the landlord.171 The tenant is liable to pay rent until he has restored full and complete possession to the landlord, and his liability to pay the rent is not discharged by an eviction, unless under a title superior to the landlord's, or by some agency of the landlord's.172 If the tenant is evicted by a wrongdoer, the landlord is not bound to indemnify him.173 If a tenant denies the relation of landlord and tenant, and refuses to pay rent, he can not afterwards revive that relation by offering to pay rent.174 One of the most important duties of a tenant is to peaceably and quietly surrender the premises to the landlord as soon as the tenancy has expired.175 If a stranger intrudes on the premises and takes possession, either forcibly or otherwise, it is the duty of the tenant to take proper legal proceedings to regain the possession, so that he may surrender the same to the landlord.176

§ 2968. Term, expiration of. If the tenant takes a receipt from his landlord, specifying the amount of rent paid and the length of the term, to commence on the expiration of the lease, the new term will be for the time specified in the receipt. No new tenancy by implication arises in such cases.177 When the lessee holds over, and the landlord receives rents after the expiration of the term, a new tenancy arises by implication, subject to the covenants and conditions of the original lease, but the new term is not necessarily for one year.178 If the lessee sublets the leased premises for the entire term of his lease from the lessor, no right of entry remains in him upon the expiration of the term. The right of entry is in him who holds the reversion.179 If a tenant for one year or more before the expiration of this term procures the landlord's receipt for one month's rent commencing at the expiration of the term, a new tenancy of one year is not thereby created.180 The tenancy is terminated 171 Schilling v. Holmes, 23 Cal. 227.

172 Id.

173 Id.

174 Conner v. Jones, 28 Cal. 60; but see Cal. Code Cir. Pro. $$ 1174 and 179.

175 Schilling v. Holmes, 23 Cal. 227.

176 Id.; see Cal. Civil Code, § 1949.

177 Blumenberg v. Myres, 32 Cal. 93; 91 Am. Dec. 560.

178 Id.

179 Id.; and see Bailey v. Richardson, 66 Cal. 416.

180 Id.; see Cal. Civil Code, §§ 1943-1947, inclusive.

by an eviction; and a subsequent taking and holding by the tenant under a lease from the evictor is not in subordination to the title of the original lessor.181

§ 2968a. Pleading - conclusions of law. A complaint in an action of unlawful detainer, which alleges that certain of the defendants were in possession of the premises in controversy as tenants of the plaintiff; that certain other defendants claim some right of possession under said tenants; that the notice to defendants to pay rent or surrender the premises was duly and legally served in accordance with the laws of the state relating thereto, merely states conclusions of law, and is not sufficient under the Washington statute (Laws of 1891, p. 179), requiring the plaintiff in such action to "set forth the facts on which he seeks to recover. "182 So, where in such action, the plaintiff claimed under a decree in connection with a certificate of purchase, and the only allegation in the complaint concerning the nature or provisions of the decree was "that under and by virtue of being the owner of said certificate, and under the power and authority of the District Court of said county, and the decree upon which said certificate of sale was issued, this plaintiff is entitled to the possession of said lode, with all appurtenances," this allegation was held to be simply a conclusion of law, and insufficient to constitute a cause of action.183 § 2968b. The same - reply unnecessary. It seems that in an action for unlawful detainer, under Washington Code of Procedure, sections 571-573, a reply is not necessary to affirmative matter contained in the answer. 184

181 Steinback v. Krone, 36 Cal. 303; citing as authority Wheelock v. Warshauer, 21 id. 316; and S. C., 34 id. 265. As to what constitutes unlawful detainer, see Cal. Code Civ. Pro., § 1161. Requisites of a complaint by a landlord to recover possession of demised premises for nonpayment of rent. See Mayor of New York v. Campbell, 18 Barb. 156; also, McKissick v. Ashby, 98 Cal. 422. 182 Lowman v. West, 8 Wash. St. 355. A complaint in unlawful detainer for the possession of unsurveyed government land must allege title in the plaintiff, and that the plaintiff was entitled to the possession at the time the defendant entered, and when demand was made upon him for the possession, and that the defendant unlawfully withheld the premises, and that service of demand for possession had been made upon him, and without these material allegations the complaint is fatally defective. Barnes v. Cox, 12 Utah, 47.

183 Laffey v. Chapman, 9 Col. 304. 184 Fife v. Olson, 5 Wash. St. 789. Vol. II-57

CHAPTER II.

TAXES AND TAXATION.

§ 2969. Against person removed to another county, under .California statute.

.....

I. That he is the assessor of said county of II. That there was duly assessed upon personal property of the said defendant in the said county of

sum of

ther sum of

the

dollars for county purposes; and the fur... dollars for state purposes, for the

year 18.., upon which said several taxes there has accrued a penalty of ........ per centum for the nonpayment, together with interest on the said taxes at the rate of

per cent.

18.., all

per month, from the ........ day of which said several taxes, penalties, and interest remain wholly unpaid.

III. Said taxes were assessed upon the following property, to-wit [enumerate or briefly describe the property as in the assessment-list].

IV. That at the time said taxes were assessed upon said property, the defendant resided in the said county of

and afterwards, to-wit, on or about the ..... day of 18.., removed therefrom to the said county of ...

Wherefore the plaintiff, as such assessor, demands judgment against the said defendant for the sum of

dollars,

being the amount of said taxes, penalties, and interest aforesaid, and costs of suit.1

1 Such suit must be brought in the name of the assessor. Cal. Pol. Code, § 3808.