there is nothing in the other findings made by the court in this case the condition and the breach being found-which warranted the court in awarding judgment for the defendants and in refusing to sustain the forfeiture. As an abstract proposition, the contention of appellant that such conditions are lawful and enforceable is undoubtedly correct. The books are full of cases in which restrictions as to the use of property have been sustained. It has been uniformly held that conditions inserted in deeds precluding the establishment of various occupations or industries-as, for instance, distilleries, machine-shops, livery-stables, and saloons, or places where intoxicating liquors might be obtained-in certain specified localities intended for and desirable as places of residence have been sustained, the intent and purpose of the restriction being, as to the industries, to free such localities from offensive sights, disturbing noises, or noxious vapors, and, as to saloons, in aid of the social and moral welfare of the community by preventing intemperance, which is universally recognized as a social evil. Under this general rule, and confining ourselves now to the condition in the deed relative to the sale of intoxicating liquors, broken by the defendant Grandi, if the plaintiff in the formation of the town of Point Reyes station, and in pursuance of a scheme to prevent intoxicating liquors being sold within its limits, had by condition in all deeds made by him provided against it, and for forfeiture of the land conveyed in case it was done, no contention could arise as to the validity of such condition and the consequent forfeiture of the property if it 380 were violated. Or if the plaintiff, under a general scheme for establishing such town, had contemplated and intended that the sale of intoxicating liquors should be confined and restricted to some given locality or territory within the town, and restricted it to such given locality by imposing conditions against its sale elsewhere, we are not prepared to say that such a scheme would not be entirely proper, and conditions in deeds harmonizing therewith lawful and enforceable. But nothing of this kind appears to have been intended or designed by the plaintiff, according to the findings. Whatever his views may have been on the question of temperance, or the restriction of the liquor traffic, he neither intended by the imposition of these conditions to entirely prohibit the sale of such liquor within the town laid out by him, nor to confine its sale within any given district or locality for the benefit of the community or its individual members. His purpose was, so the court finds, and we must assume it has so found on sufficient evi

dence, that he intended by the imposition of such conditions to reserve and create solely in himself a monopoly of the sale of intoxicating liquors within the town of Point Reyes station. The court not only finds that this was the intent of the plaintiff, but that in effect he, through his agents, was in the actual enjoyment of a monopoly as to such business. It hardly needs any citation of authority to the proposition that in the scheme of establishing a town or village, all forfeitures inserted in deeds to lots therein solely for the purpose of restricting a lawful occupation, in order that the grantor may himself enjoy a monopoly in it, is against public policy and void. The retail liquor business, conducted under such restrictions and limitations as are imposed by law, is a lawful business in this state, and no more subject to monopoly by restrictive conditions imposed for such purpose, as the lower court finds they were here, than restrictive conditions affecting any other lawful business, and when the intent and purpose of such conditions is to effect a monopoly of any lawful business or occupation in the person imposing them, they are void.

This question, under practically the same circumstances as it is presented here, was before the supreme court of Michigan in the case of Chippewa Lumber Co. v. Tremper, 75 Mich. 36, 13 Am. St. Rep. 420, 42 N. W. 532, 4 L. R. A. 373. There the manager of the Chippewa Lumber Company, by consent of the company, 381 plotted the village of Chippewa Lake in Mecosta county in that state. The company sold lots and inserted in its deeds a condition that intoxicating liquors of any kind should not be sold on any lot conveyed by the company for thirty years after the date of the conveyance, with a provision for forfeiture should the condition be violated. The owner of a lot conveyed by the company and containing the said provision having violated it by the sale of intoxicating liquors, suit was brought by the company to recover the lot for breach of the condition. Evidence was offered on the trial by defendant for the purpose of showing that this condition in the deeds to lots in the village, including the deed to him, was inserted for the purpose of giving the company, or its manager, the right of exclusive sale of liquor in the village, and that the company or its manager were interested in a drug-store enjoying such exclusive sale. The lower court rejected the evidence offered. The supreme court held that it should have been received. In discussing the matter, one of the justices, speaking for the

Am. St. Rep., Vol. 125-5

court, said: "The selling or giving away of intoxicating liquor in this state is a lawful business if carried on in conformity with the statutes governing the traffic in intoxicating liquors. It does not seem to me that the Chippewa Lumber Company could, in the platting and sale of lots in the village of Chippewa Lake, so convey its lots as to grant for thirty years, in effect, a monopoly of the sale of liquor in themselves, or any other person or persons. This would be contrary to public policy. . . . . I am satisfied that no forfeiture of lots under the condition in defendant's deed, or the deed to his grantor, should be permitted for any such purpose, and that the facts offered, if proven, would have been a perfect defense to this action. . . . . It would appear that the alleged benefit of this condition to the company in preventing the sale of liquor to its mill hands was not the reason of the insertion of the condition, or for its enforcement, but that the condition was for the purpose of profit to the company or its manager in the exclusive sale of liquor in the village. I am well satisfied it would be against public policy to permit an owner of a village plot to insert a condition in the conveyance of his lots that no bread should be sold upon the premises for thirty years, in order that he might himself have a monopoly in the village of the sale of bread. Liquor is not a necessity like bread, and is 382 generally regarded as of damage by the general community, but I know of no good reason why a person should be permitted to have a monopoly in selling poison to a community any more than food, unless it be that no other person can be found fit to handle and dispense it. I do not believe, however, that any man or company should be permitted by the law and aided by the courts to create a monopoly in himself, either in the sale of bread or whisky. The right to insert such a condition as the one in this case, for an honest and beneficial purpose, cannot be denied, and is within the public policy of the state. . . . . But courts will not enforce such a condition, inserted for a dishonest purpose, and to the end that the grantor may thereby obtain a monopoly in any business and all others be restrained therefrom; and there can be no difference in this regard, whether the business so sought to be centered in one person in a community is one acknowledged by everyone to be of great benefit to mankind, or one regarded by many good people of detriment to the community, provided both are lawful. . . . . Courts will not enforce forfeitures for any such purpose.

This authority appears to have direct application to the case at bar. The reasoning is clear and the doctrine an

nounced is sound. In fact it is the only authority cited on either side (and the citations are few) which has any direct application to the principle involved under the findings in the case at bar.

Counsel for appellant suggests many reasons which may have actuated the plaintiff in imposing the condition in question in his deeds. We make no question but that such considerations as he urges might influence one laying out a village or town. Entertaining the view, which is unquestionably sound, that intemperance is a social evil, the founder of a town, in his general scheme to establish it, would have a right to protect against intemperance therein by inserting conditions in his deeds to lots prohibiting the establishment thereon of any place where intoxicating liquors might be sold. He would be justified in the view that prohibiting its sale on the lots he disposed of would increase the value of his remaining property; that persons would be more disposed to purchase property and build and improve it for residence purposes in a community where the liquor traffic was prohibited than where it was not. Many other equally good considerations might actuate him in 383 imposing the condition. The property was his, and he could dispose of its as he saw fit, imposing such restrictions upon its use as he chose, his right to impose them being limited only to the extent that such conditions should be imposed to effect a lawful purpose. The trouble, however, in the present case is that the proper and lawful motives which might have actuated the plaintiff were not those which governed him in the imposition of these conditions. The court finds that he imposed them to create a monopoly in his own behalf in the sale of intoxicating liquors upon other property in the town owned and leased by him to those who, with his consent and protection, did sell it and enjoyed under his leave the exclusive right to do so. Conditions imposed to attain that end are, as we have seen, against public policy and void.

It follows, therefore, that the judgment of the lower court declaring this condition in the deed of defendants void was correct, and the judgment in their favor is affirmed.

McFarland, J., and Henshaw, J., concurred.

Hearing in bank denied.

A Condition in a Deed Against the Sale of Liquors on the Premises conveyed will be upheld, unless inserted for some purpose which the law condemns, such as to enable the grantor to obtain a monopoly of the prohibited sale: See the note to Wakefield v. Van Tassell, 95 Am. St. Rep. 222.

BONNEAU v. NORTH SHORE RAILROAD COMPANY. [152 Cal. 406, 93 Pac. 106.]

A CARRIER OF PASSENGERS is Held to the Exercise of the Highest Degree of Care for their safety and transportation, and liable for any injuries sustained by them in the course of transportation through the failure to exercise such care. (p. 70.)

CARRIERS, Negligence of, Prima Facie Evidence of.-A passenger makes out a prima facie case against a carrier when he shows that he was injured by an accident happening to the train in which he was riding in the course of its operation by the carrier. (p. 70.)

CARRIER'S NEGLIGENCE-Burden of Proof.-A carrier must assume the burden of proof in an action by a passenger to recover for injuries suffered by an accident happening on the train on which he was riding, in the course of its operation by the carrier, to rebut the presumption of negligence arising from the accident. (p. 70.)

CARRIERS, Burden of Proof as to the Cause of an Accident. In an action to recover for injuries suffered by a passenger from the overturning of a car, it is not error to instruct the jury that the carrier must show that the overturning was the result of inevitable casualty, or of some cause which human care and foresight could not prevent, and if the carrier does not explain how the overturning occurred, the presumption of negligence remains. The only explanation which such an instruction calls for is that the accident was the result of some cause other than the negligence of the carrier. (p. 70.)

CARRIERS Negligence, Instruction as to Burden of Proof.In an action by a passenger to recover for injuries suffered from the overturning of a car, an instruction is not erroneous which states that the plaintiff was a passenger of the defendant, and that the car in which he was riding was derailed and overturned without his fault, is all that the plaintiff need establish, in the first instance, in order to entitle him to recover for such injuries as may have been proximately caused him thereby, and that when the plaintiff has done this, the legal presumption arises that the derailment or overturning was through the negligence of the defendant, and the burden of proving that there had been no negligence is cast on the defendant. (p. 71.)

JURY TRIAL-Refusing Instruction Already Given.-If all that is pertinent in an instruction asked for has already been embodied in an instruction given, the court may properly refuse to give it. (p. 73.)

DAMAGES for Personal Injuries-Evidence of Earnings of the Plaintiff. In an action to recover for injuries suffered by the plaintiff while a passenger on the defendant's railway train, he may be permitted to prove that at the time of the accident, and for many years prior thereto, he was an insurance solicitor and what were the commissions earned by him for several years. (p. 74.)

DAMAGES for Personal Injuries-Verdict for, When not Excessive. In an action for personal injuries suffered by the plaintiff when a passenger on the defendant's railway train, a verdict for seven thousand five hundred dollars cannot be held excessive when the evidence shows that he was damaged upward of two thousand dollars for expenses, including nursing, medical attendance and loss