sion agreement indicates that the property was leased for a period of twenty years from October 10, 1917; and that the lessee bound himself to commence operations preparatory to drilling for oil within six months from the execution of the original agreement. It will not be disputed that this provision was intended to be for the benefit of the lessors and might be waived by them. If the lessee failed to prepare to drill as agreed, no other or additional obligation rested upon him because of such failure. The lessors might terminate the lease by serving the notice stipulated, but if they did not do so the lease would remain unimpaired. The lessee might abandon at any time by giving up possession and executing the quitclaim deed, etc., mentioned in the lease, yet, unless such action was taken, mere lapse of time could in no way affect its life.

Doubtless, if neither party did anything the lessee might at any time during the twenty-year period of the lease have begun to drill for oil and would then have been protected as still within the lease, provided he thereafter continued. operations with reasonable diligence and did not permit himself to become otherwise delinquent.

[2] We now proceed to the next consideration, namely, what effect did the parties intend the last extension agree ment to have upon the obligations and rights of the parties in respect to the matters here involved? Other extension agreements had been executed by which the lessors had given consent to the lessee's failure to begin operations. Under these, payments in the nature of rent had been made. monthly by the respondent, beginning with April 3, 1918, and continuing until November 26, 1920. The last extension stipulates that the result of the payments under its terms so made from month to month" shall be to "relieve the lessee of and from all obligations to commence and prosecute any drilling or other operations upon the land during such month." (Italics ours.) One outstanding fact resulting from this provision is that under it each month is considered as a single period. The same stipulations apply to all six of the months included in the term covered by this last extension, but each one is segregated from the others so that if the lessor were to make one monthly payment of $833.33, his time to begin operations would only be extended for the particular month for which such

payment was made. Another thing which the language clearly indicates is that the purpose which actuated the parties to sign this agreement was to preserve the lessee's right to drill in the land in question. This was the only result accomplished. The lessors acquired no new rights except to the rental money received by them. Again, the lessee and not the lessors had the right to decide whether or not the last extension agreement should have any application. It is provided that certain things shall be done "if he shall so elect," reference being made to the lessee; and, lastly, his election is to be made monthly, and not for the entire period of six months treated as a single

This conclusion logically follows from the recital, "such payments so made from month to month," and it necessarily results from the closing stipulation to the effect that each payment shall relieve the lessee from all obligations to drill "during such months." As the lessee had the right to elect each month during the period of six months whether or not he would keep his right to begin drilling alive, the only question remaining for determination is as to the manner in which his election was to be made. One way, and but one, is mentioned; that is, by the payment of $833.33 to the lessors on the tenth day of the month for which the lessee should desire to be relieved from the obligation to commence drilling.

We do not regard McMillan v. Philadelphia Co., 159 Pa. St. 142 [28 Atl. 220], as a precedent in this case, because the lease there involved contained an express covenant requiring the lessee to pay a definite rental if it failed to do certain development work stipulated. The type of a lease which appellant refers to as the "or lease" is one in which the lessee agrees to drill or in lieu of drilling to pay a rental. The lease before us contains no covenant to that effect. The language used expressly makes it optional with the lessee to neither drill nor pay rent, pursuing which course he would, of course, forfeit all right under the lease should the lessors so elect. Courts have no right to alter the contract made by the parties to it by adding an agreement not incorporated therein. This the case of Scott v. LaFayette, 42 Ind. App. 614 [86 N. E. 495], does if, by the statement contained in the decision it is meant that the clause construed, although making it optional with

the lessee to allow the lease to lapse through failure to drill or pay rent, will, regardless of the language used, be held to stipulate that the lessee must either drill or pay rent. No other case cited or known to us holds that such an obligation will be read into a lease which has made no provision for it. The case of Jackson v. O'Hara, 183 Pa. St. 233 [38 Atl. 624], cited in Scott v. LaFayette, does not so decide. In that suit the lessee definitely promised to "complete one well on the premises from the date thereof," and in case of failure so to do, he covenanted to "pay as rental to the party of the first part for such delay, the sum of $50 per month, payable in advance." The opinion in Scott v. LaFayette is quite unsatisfactory in that no clear reason is given for the conclusion reached concerning the point here involved. The proposition is emphasized that no forfeiture clause on behalf of the lessor was contained in the lease. The court may have regarded it as inequitable that the rights provided in that regard were unequal and lacked reciprocity. The lease in the case at bar is not subject to this criticism. A court of equity has no occasion to apply a strained construction on this account, for the lessors are amply protected by a clause authorizing the termination of the lease by them in case the lessee failed to prepare to drill as agreed.

The judgment is affirmed.

Finlayson, P. J., and Works, J., concurred.

[Civ. No. 3681. Second Appellate District, Division Two.-June 16,

1923.]

In the Matter of the Application of W. E. SIMPSON et al. That the "Daily Report" be Declared a Newspaper of General Circulation.

[1] NEWSPAPERS GENERAL CIRCULATION - RES ADJUDICATA -ANNULMENT OF ORDER-PROOF.-After a superior court, in a proceeding duly instituted and prosecuted for that purpose, has entered an order adjudging a given publication to be a newspaper of general circulation, and that judgment has become final, the status of such publication is res adjudicata, and the sufficiency of the evi

dence to justify such determination may not be inquired into in a subsequent proceeding, under section 4462 of the Political Code, to annul such order, but the burden is upon the petitioner in the latter proceeding to prove that the paper has "ceased" to be one of general circulation.

[2] ID.

CHANGED CONDITIONS PROOF. To prove that a paper has "ceased" to be one of general circulation, the petitioner must prove such a change of conditions as would show the paper to be no longer what it was in that regard at the time it was adjudicated to be a newspaper of general circulation.

[3] ID. RES ADJUDICATA-PARTIES.-Where the superior court, in a proceeding duly instituted and prosecuted for that purpose, has entered an order adjudging a given publication to be a newspaper of general circulation, and that judgment has become final, such determination is binding, not only upon the parties to such proceeding but upon all persons.

[4] ID.-EVIDENCE-CHANGE IN POPULATION AND SUBSCRIPTION LIST.The fact that the population of the city in which the paper is published and distributed has increased, and that the number of subscribers to the paper has relatively decreased, is not sufficient proof in and of itself to compel a finding that the paper has "ceased" to be one of general circulation.

[5] ID. JUDGMENT APPEAL.-Until a city has become so large that the number of people living in it precludes the conclusion that the paper, with a subscription list of 194 subscribers, can be one of general circulation, the decision of the trial court adjudging that its circulation is general will not be disturbed on appeal, where other conditions appear to have remained unchanged since the first decree was entered.

[6] ID.-RES ADJUDICATA-PLEADING.-In a proceeding under section 4462 of the Political Code to annul an order previously made determining a given publication to be a newspaper of general circulation, no plea of res adjudicata need be pleaded by the respondent, but the petitioner must avoid the effect of the judgment shown by his own pleading to exist.

APPEAL from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge. Affirmed.

The facts are stated in the opinion of the court.

F. E. Borton, C. V. Anderson, James Petrini and Kaye, Siemon & Abel for Appellant.

J. W. Wiley and Irwin & Laird for Respondent.

CRAIG, J.-On August 18, 1913, the superior court of Kern County, in a proceeding duly instituted and prosecuted for that purpose, entered an order adjudging the "Daily Report" to be a newspaper of general circulation. This is a proceeding under section 4462 of the Political Code to annul the order previously made. The ground set forth in the petition is the alleged fact that the "Daily Report" had ceased to be a newspaper of general circulation. After a trial the superior court denied the petition. and dismissed it. From the order of dismissal the petitioners appeal.

The petition alleged and the court found the "Daily Report" to be a publication issued and published in the city of Bakersfield. A number of typical issues of the publication issued in September and October, 1920, were introduced as exhibits at the trial and are before this court for inspection. An inspection of these and of the paper published in 1913, also offered in evidence, shows that with regard to its contents, the "Daily Report" now contains more items of general interest and is not otherwise less qualified to be termed a newspaper of general circulation than at the date of the original hearing and adjudication. The evidence shows also that it now has more paid subscribers than formerly. Political Code, section 4460, provides that to be a newspaper of general circulation, a publication must be "published for the dissemination of local or telegraphic news and intelligence of a general character, and that if it be devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, etc., it is not such a newspaper." Section 4462 makes provision for the vacation of a judgment which has determined a newspaper to be one of general circulation. The sole requirement which authorizes the vacating of the judgment previously entered is that "such newspaper has ceased to be a newspaper of general circulation, as that term is defined by Section Four Thousand Four Hundred and Sixty."

[1] The judgment entered on August 18, 1913, necessarily determined the fact to be that the "Daily Report," as then published, having regard for conditions in its community, was a newspaper of general circulation. This judgment became final. The matters there passed upon and