1. The nuisance occasioning the injury existed at the time the premises were demised; or, 2. The structure was in such condition that it would be likely to become a nuisance, in the ordinary and reasonable use of the same for the purpose for which it was constructed and let and the landlord failed to repair it (citing cases); or, 3. The landlord authorized or permitted the act which caused it to become a nuisance occasioning the injury." Quoting from Gandy v. Jubber, 5 Best & S. 485, "To bring liability home to the owner the premises being let, the nuisance must be one which was in its very essence and nature a nuisance at the time of letting, and not something which was capable of being thereafter rendered a nuisance by the tenant.

In notes B and C (p. 524) to the case from which respondents extract note E, supra, in 92 Am. St. Rep., the liability of the lessor of real property to third persons is considered. Note B points out the nonliability of the lessor to third persons for injuries arising from a nuisance not on the premises at the time of the lease, but which was erected or created by the tenant alone without the license or consent of the lessor. Note C is as follows: "The same considerations control where the nuisance is occasioned by a misuse by the lessee of the premises, or of appliances which were thereon at the time of the lease. It is not sufficient to render a lessor liable that the premises leased by him are capable of a use which will prove a nuisance to strangers. 'If a landlord demise premises which are not in themselves a nuisance, but may or may not be come such, according to the manner in which they are used by the tenant, the landlord will not be liable for a nuisance created on the premises by the tenant. He is not responsible for enabling the tenant to commit a nuisance if the latter should think proper to do so. (Citing cases.) In such a case it may be said, in one sense, that the landlord permitted the tenant to create the nuisance, but not in such a sense as to render him liable. (Citing cases.) The landlord will not be liable for the use of the premises in such a way as to do harm, merely because there was a manifest possibility of their being used in such a way.' (Citing cases.) . . . Where, therefore, the premises, while capable of improper use, may be used in an ordinary manner without the creation of a nuisance, the lessor is not chargeable with the improper uses

of them by the tenant which results in a nuisance." (Citing cases.)

In Owings v. Jones, 9 Md. 108, the court, referring to Rich v. Basterfield, 4 Manning, Granger & Scott, 56 Eng. Com. Law, 784, said: "After a full review of all the cases, and that too after a second argument, we understand the court to deduce, at least the two following principles from the numerous adjudications to which reference is had: First: That where property is demised, and at the time of the demise is not a nuisance and becomes so only by the act of the tenant while in his possession, and injury happens during such possession, the owner is not liable; but second: that where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable."

Further reference to authorities seems unnecessary. We think it results from the principles above stated that the only question here is: Was this side door to the theater a nuisance when the premises were leased to defendants Henry and Giesea, or did it become such for the time being when the tenants used it for a purpose other than that for which it was designed and had, from the day the house was built, been used to the moment the present tenant misused it? We think the premises were not a nuisance when demised, and became so because of the manner in which the tenants used them on the night of the accident. It follows that the defendants, the Hersheys, are not liable for the injury complained of.

It is not necessary to consider any of the other alleged

errors.

The order is reversed and a new trial granted as to defendants, the Hersheys.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 4, 1916.

[Civ. No. 1569. Third Appellate District.—October 7, 1916.]

NANCY SHELLMAN et al., Respondents, v. ELLA L. HERSHEY et al., Appellants.

NEGLIGENCE-INJURIES IN MAKING EXIT FROM OPERA HOUSE-PLEADING -SUFFICIENCY OF COMPLAINT AGAINST LESSEES.-In an action against the owners and the lessees of an opera house to recover damages for personal injuries received by a patron in making her exit therefrom, the complaint sufficiently states a cause of action against the lessees, where it is alleged that they were the lessees of the premises on the day of the accident, and the nuisance and the accident are fully described.

APPEAL from a judgment of the Superior Court of Yolo County. N. A. Hawkins, Judge.

The facts are stated in the opinion of the court.

E. M. Rosenthal, for Appellants.

A. C. Huston, and H. L. Huston, for Respondents.

CHIPMAN, P. J.-This is an appeal by defendants Henry and Giesea from the judgment in the case of like title, No. 1568, ante, p. 641, [161 Pac. 132], this day decided, and is here on the judgment-roll alone. The only question presented arises on a general demurrer.

The complaint alleged ownership of the premises in defendants, the Hersheys; that defendants Henry and Giesea on the day of the accident were lessees of the premises; that the premises are a public place of amusement let for hire; describes what was claimed to constitute the nuisance complained of; that the theater on the day mentioned was leased to defendants Henry and Giesea; that said nuisance existed in the theater prior to the letting to Henry and Giesea and at the time of the accident and describes fully the accident and alleges amount of damages.

We think a cause of action was sufficiently stated against these appellants. There was no special demurrer. The case was fully tried on all issues. It must be assumed, in the absence of a bill of exceptions, "that the evidence presented in support of the findings was competent to establish the facts.

alleged, and was received at the trial without any objection, and was sufficient to sustain each of the facts found." (Cutting Fruit Co. v. Canty, 141 Cal. 692 [syllabus], [75 Pac. 564].)

The judgment as to defendants Henry and Giesea is affirmed.

Burnett, J., and Hart, J., concurred.

[Civ. No. 1527. Third Appellate District.-October 10, 1916.] TUOLUMNE COUNTY ELECTRIC POWER AND LIGHT COMPANY (a Corporation), Appellant, v. CITY OF SONORA (a Municipal Corporation), Respondent.

MUNICIPAL CORPORATION-LIABILITY FOR ELECTRICITY FOR STREET LIGHTING FAILURE OF PROOF.-An electric light and power company engaged in furnishing electricity for lighting dwellings, business places, and streets of a municipal corporation, cannot recover in an action against the city for current consumed in the street lights between the hours of 7 o'clock A. M. and 4:30 o'clock P. M., where the complaint alleges that such current was furnished at the instance and request of the municipality, but the evidence shows that the city expressly notified the power company that it would only pay for electricity furnished between the hours of 4:30 oclock P. M. and 7 o'clock A. M.

APPEAL from a judgment of the Superior Court of Tuolumne County. G. W. Nicol, Judge.

The facts are stated in the opinion of the court.

J. B. Curtin, and W. H. Mahoney, for Appellant.

J. C. Webster, for Respondent.

BURNETT, J.-The action was for the recovery of the sum of $2,425.37 for electrical energy claimed to have been furnished by plaintiff and consumed by defendant in the street lights of said city. For years plaintiff, which is a public service corporation purchasing its electricity from the

Sierra and San Francisco Power Company and then selling it to consumers, has been engaged in furnishing electrical energy for lighting dwellings, business places, and the streets in said city of Sonora. From its substation along the side of Washington Street, the main street of said city, for more than ten years prior to October 1, 1913, the plaintiff had two main power lines, and to these, other lines extending along the sides of the other streets were attached, thus forming the system by which electric lights were furnished for houses and streets. During these years, one of these main lines from the substation carried what is called the day circuit current of twenty-four hours, the other, what is called the night circuit current, both of which currents were turned on and off at said substation. The night circuit was loaded one-half hour after sunset and turned off one-half hour before sunrisethis period being recognized generally as the standard hours. for street lighting, and the day circuit was left continuously turned on so as to have twenty-four hours always of continuous service on that line. More than ten years prior to October 1, 1913, the trustees of said city, for the purpose of lighting the streets, caused wires from the center of the street to be connected with plaintiff's night service main line, an incandescent light being attached to the end of each of these wires. The light was anchored on the opposite side of the street so that each light would be suspended over the middle of the street at a given height. By this method, most of the streets were lighted during this period of time, and all street lights were connected with and received current from plaintiff's night circuit line. During this period the city of Sonora owned all of the wires extending from plaintiff's main night service line into the streets, and also owned all bracket street lamps. When the street lighting system was constructed, no automatic switches or devises of any kind were connected therewith or constructed thereon, so as to turn on or off independent of other consumers' hours, any of the street lights, the entire street lighting system being regulated as to that by a switch at said substation, controlled and operated by the Sierra and San Francisco Power Company. As the electric current flowed through the said main night circuit line, it ran out into the street lamps and bracket lamps, and thus the streets were lighted.