—Plaintiff was the owner of about 5,880 acres of land in Tulare County. This land was let by *410 plaintiff to one L. B. Crow in 1910 for a term of three years, which was afterward extended ' to the first day of October, 1916. In June, 1916, Crow granted to defendant Miller & Lux the right to pasture said land with sheep. For this right Miller & Lux paid to Crow the sum of $3,040. After the sheep were taken on to the land, plaintiff received information of the fact and ordered defendant to remove them, which it ydid. Plaintiff thereupon instituted this suit to recover damages from defendant for various injuries to his property alleged to have been occasioned by the running and bedding of the sheep upon the land. Defendant filed a cross-complaint, wherein it asserted its right to run and bed the sheep upon plaintiff’s land and sought to recover the value of the straw and stubble remaining upon the land at the time of the eviction, together with damages for the injury to its sheep occasioned by their removal and for the loss sustained in dismantling watering-troughs erected by it upon the land. The trial court decided in effect that Crow had a right to grant to defendant the right to pasture its sheep upon the land; that defendant had had the benefit of one-half of the straw and one-half of the stubble upon the land; that the other half of the straw belonged to plaintiff; that defendant was entitled to recover $760 for the other half of the stubble, and that the other injuries alleged by defendant were too remote to justify recovery. Judgment was entered accordingly, and from the judgment so entered both parties have appealed.
Plaintiff contends that Crow had no right to allow defendant to pasture its sheep upon the land, basing this contention primarily upon the assumption that the agreement between plaintiff and Crow amounted to a mere cropping agreement and did not constitute a lease of the premises. We think, however, that the instrument executed by the parties to that agreement is to be construed as a lease. In reaching this conclusion we have not attached controlling importance to the fact that the instrument so characterizes itself. But, considered with the general tenor of the instrument, the fact that the parties called it a lease is some evidence that they intended it to operate as such. While retention of possession by the owner is one indication of a cropping agreement, the so-called lease repeatedly treated possession as transferred to Crow, right of re-entry being
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reserved to the owner for certain limited purposes only. Thus plaintiff reserved to himself the use of a certain room in the dwelling-house upon the place, the right to enter and inspect the premises, and also the right to pasture four animals upon the land. If the arrangement was intended to make Crow a mere cropper, there would have been no necessity for the reservation by the plaintiff of such rights, for under a mere cropping agreement plaintiff would have had the right at any time to enter and occupy the land subject only to the rights of Crow with respect to the crops. It further appears that Crow was required to keep the premises in repair at his own expense. Moreover, a definite term of three years was created. Both the term and its length indicate that this was not a mere cropping agreement. Finally, delivery to the plaintiff of his share of the crops was to be made off the premises—strong evidence that the instrument constituted a lease. (16 R. C. L. 587.)
Plaintiff next contends that Crow was not entitled to pasture the straw and stubble even if the instrument embodying their agreement did constitute a lease. This contention is based upon several grounds.
The first of these grounds is that the right to pasture the straw and stubble was outside of Crow’s rights as measured by section 820 of the Civil Code. Conceding in this behalf that the right in question is given to a tenant for years by section 819 of the Civil Code, since section 820 provides that “A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section,” plaintiff argues that wherever express rights are granted to a tenant by the lease itself he cannot claim any of the rights accorded by section 819. This argument is based upon the use of the word “or,” which we have italicized in quoting the code section. [2] It is evident, however, from a consideration of sections 819 and 820, taken together, that it was intended by the legislature that a tenant for years should be entitled to the rights accorded ¡by the former section unless their exercise was forbidden by the lease itself, but that, so far as additional privileges were
*412 concerned, his rights should be measured by the terms of the instrument itself.
It is contended, however, that the lease itself forbids the pasturing of the stubble and straw, for the reason that since express provision is made for pasturing certain of the lands demised, the failure to expressly authorize the pasturing of the stubble and straw must be held to amount to an implied prohibition by an application of the rule of construction,
expressio unius est exchisio alterius.
We have examined the lease which defines the rights of Crow and find that it dealt with two separate and distinct subjects, first, the letting of the grain land which was included in the demised tract, the right to pasture which is involved herein, and,.second, the letting of the pasture lands which were included in the tract, the latter demise being for an independent purpose to enable Crow to raise stock on shares and to receive stock on the land to pasture for profit. We thus find two virtually independent agreements included within one lease.
Apparently receding from the position taken in th~ court~ below that the lease should be construed as requiring a division of the straw between the lessor and lessee, plaintiff still contends that, if no division was to be made, at all events the straw and stubble should have been left upon the land as a fertilizer.
*413 fendant was entitled to recover at all, it was entitled to recover for all of the straw of which it was deprived.
Plaintiff insists, however, that whatever may have been Crow’s rights to pasture the grain land himself, the granting of the right to the defendant amounted to a violation of the covenant in the lease against subletting. The contract between Crow and defendant amounted essentially to a sale of the feed coupled with a mere license to come upon the land to use it. If Crow had a right to sell the feed at all he certainly had a right to grant the right to use it on the land, for obviously the stubble at least could not be otherwise utilized.
Although defendant introduced evidence in support of its allegation of damage sustained by reason of injury to the sheep occasioned by their premature removal from the land and by reason of the loss occasioned by the premature dismantling of its watering-troughs, the court failed to find upon these issues.
Defendant cannot, it is claimed, under its attempted appeal, avail itself of the record furnished in this case on the alternative plan, for the reason that the appeal is taken from that which
does not
appear in the judgment instead of from what
does
appear, and, therefore, is ineffectual in that there is a failure to appeal from any part of the judg
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ment rendered. The notice of appeal specifies that the appeal is “from that part of the final judgment . . . which limits the amount to be recovered by defendant from plaintiff to seven hundred and sixty dollars (760.00), and from that part of said judgment which fails to give judgment in favor of the defendant for the balance of the damage prayed for in the answer and cross-complaint herein, and particularly from the part of the 'said judgment that fails to give judgment for the value of the straw upon the said property, and for the special damage alleged in the answer ■ and counterclaim herein, and from the whole of the said "judgment with the exception of the part thereof which ¡adjudges that plaintiff take nothing by the said action, and that the defendant recover seven hundred and sixty dollars j($760.00) from the plaintiff, together with costs of suit.” |The point raised is that this notice of appeal does not state .that the appeal is “from the judgment, order or decree, or some specific part thereof,” within the meaning of section 941b of the Code of Civil Procedure.
The judgment is reversed, with costs to defendant, and the cause remanded for a new trial.
Wilbur, J., Lawlor, J., Shaw, J., Angellotti, C. J., Olney, J., and Kerrigan, J., pro tem., concurred.