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fendants to sell. affirmed.
The demurrer was properly sustained. Judgmen:
THORNTON, J.; MORRISON, C. J.
(2 Cal. Unrep. 559)
ADAIR v. Crane and others. (No. 9,977.)
Filed November 20, 1885. 1. BOUNDARIES-DIVISION LINE-ORAL AGREEMENT OF ADJOINING PROPRIETORS
Adjoining proprietors may orally agree that the division line between thei)
lands shall be a certain fence. 2. APPEAL-ADMISSION OF EVIDENCE-ERROR WITHOUT INJURY.
The admission of immaterial evidence, if it work no injury to the party complaining thereof, is error without injury, and not ground for a reversal Department 2. Appeal from superior court, county of Ventura.
Ejectment. Defendants set up an equitable title to lands on one side of a certain wire fence in accordance with an oral agreement establishing such fence as the division line between defendants' and plaintiff's land. On the trial the court refused to strike out the testimony of the witness Criss, who had been permitted to testify, against plaintiff's objection, regarding the understanding in the community as to the division line.
L. C. NIcKiely and Williams & Williams, for appellant.
BY THE COURT. 1. There is evidence to sustain the finding as to the agreement of the parties that the wire fence should be the division line. It was competent for the parties to make such an agreement.
2. It is not manifest that any injury occurred from the refusal to strike out the testimony of the witness Criss. We see see no error in the transcript. Judgment and order af
(2 Cal. Unrep. 560) GARIDO v. AMERICAN CENT. Ins. Co. of St. Louis. (No. 8,624.)
Filed November 20, 1885. FIRE INSURANCE-TIME FOR SUING ON POLICY.
Where an insurance policy contains a clause that any suit or action thereon should be commenced within 12 months after the loss, the action thereon must be brought within the time limited, and held, that the evidence in the present action did not sustain a finding that the delay in bringing the suit was caused by defendant's conduct. Department 2. Appeal from superior court, county of Contra Costa.
Sidney V. Smith & Son, for appellant.
MYRICK, J. Action on an insurance policy. The property insured was destroyed February 15, 1880. The assured gave immediate notice
of the loss, and as soon thereafter as practicable made proofs, as required by the policy. The complaint was filed November 1, 1881. The policy contained the clause that any suit or action thereon should be commenced within 12 months next after the loss. The action not having been commenced until nearly two years after the fire, the plaintiff endeavored to piove, and claims, and the court below found, that in and about negotiaiions for a compromise the conduct of the defendant was such that it impliedly agreed to suspend the clause above referred to, and that the defendant held out hopes that an adjustment would be made, and induced the plaintiff and the assured to delay bringing the suit within one year after the loss.
Admitting that the agent, Snow, had full authority, we do not think there is evidence upon which to base the above findings. On the contrary, we think the plaintiff acted entirely upon his own judgment, and that of his attorney. Whatever may have been the effect of the negotiations prior to January 21, 1881, on that day plaintiff was distinctly informed of the position of the defendant. This was in ample time to commence the suit. Judgment and order reversed, and cause remanded for a new trial.
We concur: THORNTON, J.; MORRISON, C. J.
(68 Cal. 35)
Filed November 21, 1885.
In an action by a riparian proprietor to recover damages for injuries caused by the diversion of the waters of a stream to plaintiff's lands and cattle, evidence is not admissible of injuries to lands or cattle not mentioned in the
complaint, or to lands not bordering on the stream. 2. STATUTE OF LIMITATIONS-FINDINGS.
Failure to find on the defense of the statute of limitations is error.
G. A. Heinlen, Axtell & Bradley, and Bennett & Wigginton, for respondent.
MYRICK, J. Action to enjoin defendant from diverting the water of Kings river, and for damages for injuries to plaintiff's lands and cattle by reason of alleged prior diversion. The lands, averred and proved by plaintiff as being his lands, were swamp and overflowed lands, title to which was derived from the state by patents of separate parcels, issued at different times from November, 1870, to April, 1877. The plaintiff had judgment awarding the injunction and for $11,000 damages. Whatever may be the rights of plaintiff as a riparian owner, the judgment in this case will have to be reversed.
1. The court permitted plaintiff to prove title in himself to parcels of land not bordering on any stream. Taking the testimony offered
by plaintiff at its best in his favor, there is no evidence of a defined channel or stream of water through any of plaintiff's lands except through sections 1, 12, 13, and 24, township 13 S., range 19 E., and across a corner of section 31, township 19 S., range 20 E. In addition to proof of title in plaintiff of lands in the above enumerated sections, the court admitted evidence of title in plaintiff of portions of sections 2 and 11, township 19 S., range 19 E., and portions of sections 1, 4, 5, 6, 7, 8, 9, 12, 16, 17, 18, 20, 21, 27, 28, and 34, township 19 S., range 20 E. The patents to these lands, in cases where patents had been issued, were of various dates, as above stated, from November, 1870, to April, 1877. Of these parcels some were at least five miles, others at least three miles, others at least two miles, and others at least one mile, from the stream; some were more than five miles, others more than two miles, from any lands of plaintiff bordering on the stream. Some, not bordering on any stream, were entirely disconnected by more than two miles in distance from any other lands of plaintiff. And in connection with such proof, the court permitted the plaintiff to give evidence of injuries caused by defendant's diversion to the lands, and to cattle pastured on the lands, not bordering on the stream.
2. The court permitted plaintiff to prove title to several tracts of land not set forth in his complaint.
3. The defendant pleaded five years' adverse diversion and appropriation; and its evidence tended to support the plea. The court did not find on this issue.
It is unnecessary to pass on the question of riparian rights, for the reason that, as the case must go back for a new trial, upon such new trial it may be found that there is no continuous stream through plaintiff's lands. The evidence offered on behalf of plaintiff is conflicting on this point. Judgment and order reversed, and cause remanded for a new trial.
We concur: Ross, J.; MORRISON, C. J.; McKINSTRY, J.
McKEE, J., (concurring.) Because the court erred in admitting evidence of damages sustained by the plaintiff upon non-riparian lands, and in awarding him damages for the same, I concur in the judgment.
(67 Cal. 643)
Filed November 17, 1885. GUARDIAN AND WARD--PETITION FOR GUARDIANSHIP-JURISDICTION OF SUPERIOR
The superior court of one county in which a petition for letters of guardianship over the person of a minor is presented and filed, and citation issued and served on the parties interested, has jurisdiction to hear and determine whether the minor is a resident of that county, and whether the petitioner is a proper person to be appointed guardian; and its jurisdiction in that regard is not ousted by the fact that subsequent to the service of the citation the parties served obtained the issuance of letters of guardianship to himself in the superior court of another county. Department 2. Petition for certiorari. Charles P. Goff and Robt. Ferral, for petitioner. A. H. Loughborough, for respondent.
MYRICK, J. Application for a writ of prohibition to the superior court of the city and county of San Francisco, department 9. On the nineteenth of June, 1885, one Teresa McGee presented her petition to the said superior court of the city and county of San Francisco, in which she averred that some six years ago Mrs. Danneker, a widow, the mother of the said Laura, placed the child under her care as superioress of St. Joseph's Orphan Asylum in said city and county; that afterwards the mother died, leaving no estate except $170, which had been expended in the maintenance of said Laura and two other of her minor children; that after the death of the mother the petitioner placed the said Laura under the care of a Mrs. Trendle, who agreed to support and raise her under her personal care; that afterwards Mrs. Trendle, without the knowledge of petitioner, gave the custody of the child to Jacob Michelson, who had ever since had the custody of her, and that she was then at a boarding-school in Alameda county, kept by Mrs. Kegler; that said child was then nine years of age, a full orphan, and had no property and no guardian; that said Michelson and Mrs. Trendle and the said child were residents of said city and county, though the child was temporarily at a school in Alameda county; and the petitioner prayed that letters of guardianship be issued to her.
The superior court made an order that citation issue, returnable June 30th, and that it be served on the said minor and on Jacob Michelson, Mrs. Trendle, and Mrs. Kegler. The citation was duly served. After the service of the citation, and on the twenty-third of June, (the return-day of the citation being June 30th,) the said Michelson presented a petition to one of the judges of the superior court of Alameda county, in which he averred that said minor was a resident of Alameda county, under the care of Mrs. Kegler, and had no guardian, and prayed for letters of guardianship. The petition was signed by said Michelson and C. P. Goff as his attorney. In this petition no mention was made of the proceedings in the superior court of the city and county of San Francisco, and the judge in Alameda county, not being informed thereof, made an order for service of citation on Mrs. Kegler and Mrs. Trendle. On the return-day, to-wit, June 29th, after hearing evidence offered by Michelson, the court found that the minor resided in Alameda county, and granted the prayer of the petition of Michelson for letters. On the return-day of the citation in the superior court of the city and county of San Francisco, to-wit, June 30th, the said Michelson, by his attorney, filed objections to the petition of the said Teresa McGee, and the hearing was postponed until July 14th, on which day the said Michelson, by his said attorney, presented a certified copy of the proceedings in the superior court of Alameda county, and moved that the petition of said Teresa McGee be dismissed, on the ground that the court had no jurisdiction, letters having been already granted to him by the superior court of Alameda county. Further hearing was continued to July 23d, and before that day an alternative writ of prohibition herein was granted, and an order to show cause made.
There is no doubt that at the time the said Teresa McGee presented her petition to the superior court of the city and county of San Francisco, and citation was served on Michelson and the others, that court had jurisdiction to hear and determine whether the minor was a resident of that city and county, and required a guardian, and whether the said Teresa was a proper person to be appointed. The question, then, is presented, could Michelson (instead of presenting the issue of residence and the other subjects involved to the superior court of the city and county of San Francisco) step over to Alameda county, obtain letters there, and thus oust the former court of jurisdiction to proceed? We think not. It is proper to presume that the superior court of Alameda county will, when its attention is brought to the fact that a petition was first filed in the city and county of San Francisco, revoke its order of appointment and recall its letters, to the end that there may be no conflict of jurisdiction. It is apparent there cannot be two guardianships in two different courts at the same time. Letters will be issued, if necessary, by the court of the county where it may be legally determined the child resides. Further than this it is not necessary to go at the present time, except to suggest if Mr. Michelson and his attorney, C. P. Goff, did, as is stated in some of the papers herein, resort to the court in Alameda county for letters instead of meeting the question in the court in San Francisco, as a trick, it was a hazardous proceeding; for, as to Mr. Michelson, by section 1209 of the Code of Civil Procedure, it is declared to be a contempt to practice “deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding;” and as to Mr. Goff, by section 282 of the Code of Civil Procedure, he was forbidden to seek to mislead a judge by artifice.
We do not intend to prejudge the proceedings taken by either one; we desire merely to call attention to the risk that may have been run. When Mr. Michelson filed his petition in Alameda county, he had already been served with citation to appear before the superior court of the city and county of San Francisco, which court then had, as to him, jurisdiction to hear and determine.
The application for the writ is denied, and the order heretofore made is vacated.