a few more questions were propounded in the cross-examination and there was no redirect examination whatever. If counsel did not see fit to call for the explanation when it was in order and he had the opportunity he should not complain now because the answer was unexplained.

Appellant criticises the action of the court in overruling his objection to the following questions:

1. "Now, without saying what other people said about it, what was your experience with this rotary tool?" 2. "Now, what would you say was the cause of these rotary tools drilling a crooked hole?" 3. "What is the result of that tool being connected by means of those jointed rods?" 4. What would you say in that respect to the drilling tools used which are used to sink a well by means of a cable?" 5. “In regard to those stratas of flowing sand that may fill up a well, as you strike those obstacles going down, what is the proper practice?" 6. After a well is sunk through soil of this character, that is, fine soil, dry sand strata, and may be a small flowing sand strata, what is the principle, when you are through, in regard to pumping your well out?"

We are satisfied that these questions all had some bearing upon the issue whether the work was done by plaintiff in an approved and workmanlike manner. This issue was directly raised by the answer and the only objection to the questions was the general one and that they involved a consideration "not within any of the issues raised by the pleadings."

[4] Appellant contends that the failure of plaintiff to prove the nonpayment of his claim is fatal to the judgment and he cites some earlier decisions favorable to his contention, but the rule in this state is now well established that in cases of this character the plaintiff is not called upon to prove his negative averment of nonpayment, although, of course, he must allege it in his complaint. (Melone v. Ruffino, 129 Cal. 514 [79 Am. St. Rep. 127, 62 Pac. 93]; Stuart v. Lord, 138 Cal. 672 [72 Pac. 142].)

In the former it is said: "Where a plaintiff has proved the existence of a debt sued on-at least, within the period. of statutory limitation-the burden of proving payment is on the defendant." Furthermore, "Of course, it has been held by this court, as it was always held at common law, that in a complaint upon a promissory note, or other

obligation to pay money, there must be an averment that the money has not been paid. This is necessary to make the complaint perfect upon its face. But it is a non sequitur to say that because such negative averment is necessary in the complaint therefore it is necessary for the plaintiff to prove it. The question is not one of pleading but of evidence; not what must be alleged, but where the burden of proof lies. The general rule is that a party is not called upon to prove his negative averments although they may be necessary to his pleading."

The other material findings, which are challenged by appellant, are sufficiently supported, as already stated.

[5] Appellant asserts: "The finding that the alleged Cornwell well filled in with sand because the defendant failed and neglected to cause said well to be pumped or operated at the time of its alleged completion is not within any of the issues raised by the pleadings. . . . It is a wellsettled rule of law that findings without the issues cannot sustain the judgment and a decision based thereon must be set aside."

There is no question about said principle of law, but it has no application to the situation herein. At most, said finding involves merely surplusage. The other findings, which respond directly to the material issues, are sufficient to support the judgment and said challenged finding may be ignored without affecting the result. It may be recalled, however, that the answer of defendant alleged that the well filled with sand because of the defective construction by plaintiff and it was not inappropriate for the court to find and declare the real cause for this condition.

We think there is no sufficient reason for disturbing the judgment and it is therefore affirmed.

Jones, J., pro tem., and Finch, P. 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 August 23, 1923.

[Civ. No. 2621. Third Appellate District.-June 25, 1923.] L. P. CLENDENIN, Respondent, v. JOSEPHINE WHITE et al., Appellants.

[1] PAROL LICENSE-EXPENDITURES IN EXECUTION-RIGHT OF ENTRYCONTINUANCE.-Where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structure, or, in general, his rights under the license, and the license will continue for so long a time as the nature of it calls for. In the case of irrigating ditches, drains, and the like, the license becomes in all essentials an easement, continuing for such length of time under the indicated conditions as the use itself may continue.

[2] ID. ORAL AGREEMENT OF HUSBAND

RATIFICATION BY WIFEACCEPTANCE OF BENEFITS.-Where the wife is the owner of the premises occupied by herself and her husband, who looks after and manages the property, and she, with knowledge of an oral agreement between her husband and an adjoining land owner under which the latter constructed a ditch across her property which was of benefit both to her property and that of the adjoining land owner, accepts the benefit of such ditch for more than twenty years, during which time she must have known of the annual expenditures by the adjoining land owner upon that part of the ditch across her property, she will be held to have ratified her husband's agreement with such adjoining land owner, even if he was unauthorized to make it.

APPEAL from a judgment of the Superior Court of Lake County. M. S. Sayre, Judge. Affirmed.

The facts are stated in the opinion of the court.

C. M. Crawford for Appellants.

Tindall & Davis and Lovett K. Fraser for Respondent.

FINCH, P. J.-The complaint alleges that the plaintiff and defendants are adjoining land owners, plaintiff's land being higher in elevation than that of defendants; that there are certain springs on plaintiff's land from which water

1. Revocation of parol license, notes, 31 Am. St. Rep. 712.

flows over and across plaintiff's and defendants' lands through a ditch constructed "in a well-defined depression where the water from said springs formerly flowed before the construction of said ditch"; that more than twenty years ago, "plaintiff and defendants by mutual consent and with the express understanding and agreement that said ditch should be used jointly across the lands of plaintiff and defendants for the purpose and use of carrying the water from said springs off from and over the lands of plaintiff and defendants. . . constructed said ditch . . . along and over the lands which the water was accustomed to flow from said springs"; that the water from such springs has been conducted through the ditch for more than twenty years and that the ditch is necessary for the drainage of plaintiff's land; that each year since the construction of the ditch it has become filled with sediment and that plaintiff and his agents have gone upon defendants' land and "with the acquiescence and assistance of said defendants have cleaned out said ditch to the depth of about two feet and to its natural condition when first built"; that in the year 1921 the defendants for the first time forbade plaintiff's repair or use of the ditch; and that plaintiff has been damaged thereby in the sum of $1,000 by reason of the consequent accumulation of water on his land. The prayer is for a judgment establishing plaintiff's right to repair and use the ditch, restraining defendants from interfering therewith and for damages in the sum of $1,000. The answer denies the alleged facts upon which plaintiff's right to the use of the ditch is based. The court found that the land alleged to belong to defendants is the property of defendant Josephine White and that Chester White is her husband and her manager and agent. The other facts were found in accordance with the allegations of the complaint. Judgment was rendered awarding plaintiff damages in the sum of $368 and granting other relief as prayed for.

The evidence shows that from the year 1877 to 1899 there was a ditch running through the lands of the parties for the purpose of carrying away water from the springs mentioned in the complaint. This ditch followed a different course through defendants' land from that of the ditch here in controversy. It seems not to have served its purpose effectively. Plaintiff testified that up to the year

1899 the water spread out over the defendants' land and that the ditch constructed in that year "took all the water into one channel." Defendant Chester White testified that the water ran "all over the field" on defendants' land and that the new ditch "confined it." In the year 1899 the plaintiff and Chester White agreed upon the location of the present ditch through defendants' land and that the ditch should be used jointly by the parties. White plowed furrows to mark the course of the ditch and plaintiff constructed it along the line so marked. The old ditch was thereupon abandoned and the new one seems to have successfully carried off the water and prevented it from spreading out over the lands of the parties. Plaintiff went upon defendants' land and cleaned out the ditch every year but one, which was a dry year, from 1899 to 1921, without objection on the part of defendants, and water was drained through it continuously during that time. The ditch in controversy was constructed by plaintiff for the benefit of both parties pursuant to the oral agreement between him and White. Putting the case most strongly against plaintiff, his rights are at least those of a licensee. [1] "Where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for. . . . In the case of irrigating ditches, drains, and the like, the license becomes in all essentials an easement, continuing for such length of time under the indicated conditions as the use itself may continue." (Stoner v. Zucker, 148 Cal. 516, 520 [113 Am. St. Rep. 301, 7 Ann. Cas. 704, 83 Pac. 808, 810]; Gravelly Ford Co. v. Pope-Talbot Co., 36 Cal. App. 717 [178 Pac. 155]; Irrigated Valleys Land Co. v. Altman, 57 Cal. App. 413 [207 Pac. 401]; Cairns v. Haddock, 60 Cal. App. 83 [212 Pac. 222].)

[2] Appellant contends that Josephine White is not bound by her husband's parol agreement with plaintiff. Plaintiff testified that Chester White has resided on the White property for thirty or thirty-five years, and during all of that time has had charge of the White property. This