Page images

Commissioners' decision.
Department 1. Appeal from superior court, Trinity county.
IV. J. Tinnin and Burch & Lowenberg, for appellant.

C. E. Williams, J. W. Phillbrook, and Hatch dk Chadborne, for respondent.

SEARLS, C. This is an action to fix and determine by a decree of court conflicting rights of plaintiff and defendants to the water of Grass Valley creek and its tributaries, to enjoin defendants from interference with the water adjudged to belong to the plaintiff, and to recover damages. Plaintiff's grantors, in 1850, located what is now known as the Lowden ranch, situated in Trinity county, and through which a stream known as “Grass Valley Creek” flows. The ranch was situated upon public lands of the United States. In 1852 a ditch was constructed from the creek, and the waters thereof diverted and conducted through said ditch to the ranch, and there used for purposes of irrigation. In 1854 defendant, Frederick Frey, and others constructed a ditch from Grass Valley creek, at a point above that of plaintiff, and extending to Ohio Flat and other points on Trinity river, for mining purposes.

This last ditch is known as the "Ohio Flat Ditch.'

The main issue at the trial was as to the extent of plaintiff's prior right to the water of said creek. Plaintiff had a decree adjudging her prior right to the use of 120 inches of water measured under a four-inch pressure, from which decree, and from an order denying a motion for a new trial, she appeals.

The contention of appellant is that she was entitled to a decree establishing her right to a much larger quantity of water than that adjudged her by the court, and that she was entitled to damages for past diversion of water by defendants. The prior right of plaintiff to 40 inches of water is admitted by the pleadings.

At the trial it was stipulated in open court by counsel for the respective parties that “the evidence be confined to the issue


the quantity of water appropriated by and to which each of the respective parties is entitled, and to the question of damages; and that all other issues, if any, raised by the pleadings be ignored.”

The testimony as to the extent of plaintiff's prior right to the water involved as substantial and radical a conflict as can well be imagined. It ranged, according to the statements of different witnesses, from 36 inches to 1,600 inches.

A certain ditch known as the “Skinner Ditch," and having a large capacity, is described by some of the witnesses, and its very existence ignored by others. This marked conflict may be accounted for in part by the fact that the witnesses were detailing from memory facts and circumstances occurring 30 years prior to the time at which they were called upon to testify.

Again, the tendency of all water-ditches is to increase in size and capacity by age. The constant erosion of their banks by the current

of the water flowing through them tends in some degree to their enlargement. The fact that debris deposited from this source, and in many instances brought from other sources and deposited in such ditches, is necessarily removed in cleaning them, and is usually deposited upon the lower bank of the ditch, thus imperceptibly increasing its carrying capacity. All these circumstances are, or may well be, overlooked by honest witnesses who only remember that in their observation a given ditch has never at any time been specially enlarged, and when coupled with the fact that the increase in size is so gradual as not to attract particular attention, goes far towards explaining the very great discrepancy usually observed among witnesses when testifying as to the capacity of ditches of long standing.

With this substantial conflict of testimony, and involving, as it does, so many elements of uncertainty, we are not at liberty to disturb the findings of the court below, by which the conclusion was reached that plaintiff had a prior right to but 120 inches of water.

It is objected by plaintiff that there is a conflict between the seventh and eighth findings of the court, and that the latter is in direct conflict with the testimony. The seventh finding is to the effect that defendants threaten and will continue to divert the water from said (Grass Valley) creek in derogation of plaintiff 's right to 120 inches of the first flow thereof, etc. The eighth finding is that plaintiff has sustained no damage by reason of the acts of the defendants. The court had previously found, in its sixth finding, that the defendants had always permitted 120 inches of water to flow to plaintiff's ditch when the creek afforded that quantity, except from July 14 to August 14, 1883, when they permitted but 40 inches so to flow.

The testimony of Bates, a witness for plaintiff, shows that during this same month, from July 14 to August 14, 1883, 123 to 125 inches of water actually flowed in the ditch of plaintiff, which was a larger quantity than the court finds it was entitled to receive, for which l'eason, as we suppose, it was found plaintiff was not damaged.

The apparent discrepancy in the finding that defendants only permitted +0 inches of water to flow during the month indicated, while plaintiff was, in fact, using a much larger quantity, is explained by the testimony of defendant Frey and others, from which it appears that while defendants denied the right of plaintiff to over 40 inches of water, they in practice allowed a larger quantity to flow, when they were not using it themselves, and that plaintiff was in the habit of taking it, without reference to the claim of defendants. In other words, the defendants denied plaintiff's right to any quantity of water exceeding 40 inches, and sought to deprive her of all above that quantity; hence the sixth and seventh findings. They did not succeed in depriving her of the water, as they sought to do, and she was not damaged; hence the eighth finding.

The findings are not as clear and explicit as they might have been, but we cannot see that injustice has been done the plaintiff. The


decree in plaintiff's favor entitled her to costs of the action; therefore the question of her right to nominal damages was of no practical importance in the case. Chambers v. Frazier, 29 Ohio St. 362.

The testimony tends to show that the appropriation of the water by defendants and their grantors was for mining purposes generally, to be used at various points. Under such circumstances, the sition of plaintiff, that “the right to the use of water for mining purposes ceases with the exhaustion of the mine for which it was appropriated,” has no application.

We find nothing in the errors of law assigned to warrant a reversal of the judgment or order denying a new trial, and are of opinion they should be affirmed.

We concur: FOOTE, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 483)

AXTELL v. GERLACH. (No. 9,644.)

Filed September 25, 1885. 1. Tax SALE_VALIDITY-UNLAWFUL CHARGE.

If, at a tax sale, property is sold for a greater sum, by one dollar, than was

authorized by law, the tax sale is void. 2. SALE FOR DELINQUENT Taxes—VALIDITY OF CHARGES.

The California act of 1880 for the protection of lands from overflow, other than swamp lands, does not authorize charges of 50 cents for preparing a de

linquent list, or 50 cents for certificate of sale. 3. Tax DEED-VALIDITY--INJUNCTION TO RESTRAIN MAKING.

Where a tax sale is void because made for a sum greater than that authorized

by law, an injunction will lie to restrain the making of a deed thereon. 4. Tax SALE-VOID CERTIFICATE-ACTION TO QUIET TITLE-INJUNCTION.

An action to quiet title against and to cancel a void certificate of sale for taxes may be maintained, and if in such action an injunction be granted against the making of a tax deed, the judgment will not be reversed. Code Civil Proc. Cal. $ 738. Commissioners' decision. Department 1. Appeal from superior court, San Joaquin county. J. C. Campbeli and D. S. & S. L. Terry, for appellants. J. B. Hall and W. L. Dudley, for respondents.

Foote,•C. Action to quiet title. Appeal from a judgment made therein. The certificate of sale issued by the tax collector was properly ordered to be canceled. The sale was void, because the land was sold for a sum greater, by one dollar, than was authorized by law. Harper v. Rowe, 53 Cal. 236; Treadwell v. Patterson, 51 Cal. 637. There was nothing in the law which imposed a tax in invitum upon property which gave the right to charge this additional sum, viz. : 50 cents for cost of preparing a delinquent list, and 50 cents for cost of certificate of sale. See “Act to provide for the protection of lands from


overflow other than lands recognized as swamp lands,” (St. 1880, c. 128, p. 227.) These two charges were not authorized as a part of the manner in which the sale was ordered to be made. Section 9 of of said act, and Bucknall v. Story, 36 Cal. 67. And, further, that act itself, in section 11, makes express provision for the payment of the tax collector, and does not seem to contemplate that the landowner, or his property, shall be responsible therefor. And the chaser was not entitled to a decree ordering the land-owner to reimburse him for money paid out. Harper v. Rowe, supra.

It is contended that the certificate of sale being void upon its face, the deed, the making of which it was sought to enjoin, would be void on its face, and therefore an injunction ought not to have been granted, as no cloud on plaintiff's title would thereby appear. Section 3776, Pol. Code, does not require that the certificate of sale shall specify the particulars of the “amount paid,” or the “amount of the assessment." Non constat, therefore, that the deed would necessarily do so if, executed; and if it did not, then evidence would be required de hors the recitals of the deed to ascertain the illegality of any of the items to collect which the sale was made, and a cloud would thus be cast on the title. But

But upon the supposition that the deed itself, when executed, may properly show the purchaser's title to be void, and no actual cloud rest on the plaintiff's title, yet under section 738, Code Civil Proc., this action to cancel the certificate is a proper one. Hearst v. Egglestone, 55 Cal. 336; Harper v. Rowe, supra; People v. Center, 6 Pac. Rep. 481.

The injunction is for the purpose of making effective the judicial determination of the invalidity of the defendant's adverse claim "of an estate or interest in” the plaintiff's land; and, as a means to attain that end, and prevent further controversy, if the deed should be executed and delivered, the injunction was granted, and the judgment should not be reversed on that account. Brooks v. Calderwood, 34 Cal. 563.

It would serve no useful purpose to determine other questions raised in the case, and we are of opinion that the judgment of the court below should be affirmed.

[blocks in formation]

BY THE Court. For the reasons given in the foregoing opinion the judgment is affirmed.

(67 Cal. 472)
ARNOLD, Assignee, etc., v. Kaun. (No. 9,863.)


An adjudication that a debtor is an involuntary insolvent is a proceeding in rem as far as concerns the status of the debtor, and the publication of the notice

required by section 10 of the California insolvent act of 1880 is sufficient. 2. ASSIGNEE IN INSOLVENCY-ACTIONS BY.

After adjudication of involuntary insolvency, the right to recover and distribule the debtor's property and rights in action accrues to the assignee, and he may maintain actions therefor and have recovery thereon under the California insolvent act. Commissioners' decision. Department 1. Appeal from superior court, Colusa county. John T. Harrington, for appellant. Jackson Hatch, for respondent.

FOOTE, C. Action by an assignee to recover from a purchaser the value of goods bought from an involuntary insolvent previous to adjudication as such ; the sale being in violation of the provisions of the act of 1880. The only point made or relied on by the appellant in his brief is that service of notice to show cause, made upon the insolvent by publication, was insufficient in law to uphold an adjudi. cation of involuntary insolvency. He insists that in such a case personal service was necessary; and in his brief virtually concedes that all the proceedings were regular, and according to the requirements of that act, but claims they were not in rem, and that the adjudication of the status of the insolvent was in personam and void, and the contention of the plaintiff in this action without legal support.

We understand the proceedings, such as were had against Lawson, to have for their object the fixing of his status as an insolvent, and the reaching of his property as such, and its distribution ratably among his creditors. The law under examination is similar to the late bankrupt law of the United States, and it has been declared by the federal judicial tribunals that “a decree adjudging a debtor to be a bankrupt is in the nature of a decree in rem as respects the status of the party.” Michaels v. Post, 21 Wall. 426. In Pennoyer v. Neff, 95 U. S. 725, the supreme court of the United States, while affirming personal service to be necessary in that case, distinctly stated that the principle there contended for did not affect cases “where the object of the action is to reach and dispose of property in the state," and said “such service," meaning that by publication, “may answer in all proceedings which are substantially in rem. And this ruling has been followed by this court in Belcher v. Chambers, 53 Cal. 639. An adjudication of a debtor to be an involuntary insolvent is like a decree of the same nature under the bankrupt law above mentioned, and may properly be considered as in rem as regards the status of such debtor. And publication of the notice required by section 10, act 1880, is

« PreviousContinue »