Naphtaly, Freidenrich & Ackerman, for Appellants.

The occupation by the lessees under the last lease was a surrender of the premises unter the former leases, and extinguished all obligations arising under the former leases. (Marks v. Ryan, 63 Cal. 107; Abell v. Williams, 3 Daly, 17; McDonnell v. Pope, 9 Hare, 705; Livingston v. Potts, 16 Johns. 28; Sperry v. Miller, 8 N. Y. 336; McKenzie v. Farrell, 4 Bosw. 192; Shepard v. Spaulding, 4 Met. 416; Merritt v. Judd, 14 Cal. 69; Hill v. Beatty, 61 Cal. 292; Kutter v. Smith, 2 Wall. 491; Watriss v. National Bank, 124 Mass. 571.)

John H. Dickinson, for Respondent.

SHARPSTEIN, J.-The appellants were lessees of the respondent, under a lease which contained a stipulation that they should not make any alteration in the premises without the consent of the lessor. During the continuance of the lease, the lessor gave the lessees permission to make some alterations on condition that the lessees, upon leaving the premises, would restore them to their original condition. Pursuant to said permission, the lessees did make such alterations as they had obtained permission to make upon the aforesaid condition. Before the expiration of said lease, appellants procured another lease, to take effect on the expiration of the former. The second lease contained the following clause: "And any alteration or changes made in the property by the parties of the second part shall be replaced, and the property left in its original condition." At the expiration of the last-mentioned lease another was executed between the parties, containing the clause last above quoted. Appellants continued to occupy the premises until the expiration of the last-mentioned lease, and for one month thereafter, when they abandoned the premises without restoring them to the condition they were in at the date of the first lease, and refused so to restore

them, although requested by respondent to do so, whereupon plaintiff restored them to their original condition himself, and brings this action to recover the sum expended in doing so, and the damages sustained by the loss of the use of the premises while the same were being so restored.

Judgment was entered in favor of respondent, and from that, and an order denying appellant's motion for a new trial, they have appealed to this court.

Their contention here is, that if they made the alterations upon the condition that they would restore the premises to their original condition, such alterations being made before the expiration of the first lease, they took the premises under the second and subsequent lease in the condition in which they were at the dates of said leases, respectively, and were only bound to leave them in the condition in which they were at said respective dates; and that the clause in the later leases, which provided that any alterations or changes made in the property by them should be replaced, and the property left in its original condition, does not relate back to the date of the first lease.

In view of the fact that the alteration and changes were made under an agreement by appellants that they would restore the premises to their original condition, we think the clause in the leases which succeeded the first had reference to alterations and changes made while appellants were holding under the first lease, and that the judgment and order should be affirmed.

Judgment and order affirmed.

MCFARLAND, J., and THORNTON, J., concurred.

[No. 12373.

Department One.-May 12, 1888.]

M. P. HARBIN, APPELLANT, v. JACOB C. BURGHART ET AL. HENRY L. GOLD, RESPONDENT.

SCHOOL LAND-PURCHASE OF-FALSE STATEMENT IN APPLICATION.— Under section 3495 of the Political Code, an application for the purchase of school land which falsely states that there is no occupation of the land adverse to that of the applicant, is invalid, and confers no right of purchase on the applicant. ID.-APPLICANT MUST BE ACTUAL SETTLER.-Under section 3495 of the Political Code, as it existed in January, 1884, an applicant for the purchase of school land, who was not an actual settler thereon, could acquire no right of purchase.

ID. CONTENTS OF AFFIDAVIT-TRIAL OF CONTEST-FACTS ALLEGED MUST BE PROVED.-An applicant for the purchase of land from the state must set out in his affidavit the facts required by the statute to be stated therein, and unless such facts are proved at the trial of a contest to determine the right of purchase, no right accrues to the party alleging the same.

APPEAL from a judgment of the Superior Court of Tehama County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Chipman & Garter, for Appellant.

John F. Ellison, for Respondent.

PATERSON, J.-This is an action brought to determine which of the parties has the right to purchase a portion of section 36, township 28 north, range 2 east, Mount Diablo meridian, school lands. All the defendants except Gold have been dismissed from the action.

Gold's application to purchase was filed in the office of the surveyor-general, January 23, 1884, and is in proper form. Plaintiff filed his application to purchase in the same office on the 21st of March, 1884, and on the following day filed with the surveyor-general a protest against the approval of Gold's application. Thereupon the surveyor-general certified the contest to the superior court of Tehama County.

The court below decided that defendant Gold is entitled to have issued to him a certificate approving his application to purchase the lands in controversy.

The defendant did not go upon the land until about the 18th or 20th of May following his application, and never saw the land until that time; but about the 10th or 12th of March he sent two men upon the land to build a house for him thereon, which they completed a few days thereafter. About the 1st of June following, the defendant took possession and remained there continuously for six months. He testified that he filed his application in good faith, intending to purchase the land for a home and as a place for business; that he knew the land was unfit for cultivation; that as soon as convenient after filing his application, and in pursuance of his intention to reside there, he had the house built, and as soon as the weather and the quantity of snow upon the ground would permit, he moved his stock upon the place, and resided there until heavy storms came in the fall. The court found that the land is unfit for cultivation, and also found that the defendant Gold was an actual settler.

1. At the time the plaintiff's application to purchase the land was made-March 21, 1884,-the defendant was in adverse occupancy of the land within the meaning of section 3495 of the Political Code. In his application the plaintiff stated that there was "no occupation of such lands adverse to any that he had." This statement being untrue, his application is invalid, and he is not entitled to purchase the land. (Moseley v. Torrence, 71 Cal. 318; Gavitt v. Mohr, 68 Cal. 506.)

2. The statute in force at the time the defendant filed his application to purchase required the applicant to make an affidavit that he was a citizen of the United States; that he was an actual settler on the lands; that there was no occupation of such lands adverse to any that he had, etc. In his application to purchase, and his affidavit in support

thereof, the defendant, Gold, alleged that he was an actual settler on the lands. This statement was false, for he testified at the trial that the first time he went on the land, or ever saw it, was about May 18, 1884, four months after he filed the application referred to, and that he had no improvements or cabin on the land until about the middle of March,-two months after his application.

An applicant for the purchase of land from the state must set out in his affidavit the facts required by the statute to be stated therein (McKenzie v. Brandon, 71 Cal. 209); and unless the matters of fact which are required by the statute to be alleged in the affidavit are proved at the trial of contests like the one at bar, no right accrues to the party alleging the same. (Plummer v. Woodruff, 72

Cal. 29.)

The finding of the court that the defendant Gold was an actual settler upon the lands is not supported by the evidence. It is directly in conflict with the testimony of the defendant.

Judgment and order reversed, with directions to the court below to dismiss the action, cach party to pay his own

costs.

MOKINSTRY, J., and SEARLS, C. J., concurred.

[No. 9707. Department Two.-May 12, 1888.]

THE PEOPLE EX REL. J. P. DUNN, STATE CONTROLLER, RESPONDENT, v. THOMAS C. VAN NESS, APPELLANT.

PUBLIC OFFICER-IMMIGRATION COMMISSIONER-LIABILITY TO STATE FOR FEES COLLECTED.-Under section 2955 of the Political Code, the commissioner of immigration is required to pay into the state treasury all the fees collected by him, less four thousand dollars a year and office expenses, which payments are to be used by the state for the maintenance of lepers' quarters when required for that purpose.