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Was this deed intended as a mortgage? We think that the defendants in this case are absolutely estopped by reason of the judgment in that case from asserting in this that the said instrument was a deed conveying all their interest in said land, and therefore and further because that judgment was made an issue in this case the judgment roll was properly admitted.

Irrespective of the former judgment the testimony of the plaintiff in this case shows that he never intended to purchase said land and the deed and bond simply constituted his security for the money he had loaned the Shusters. The lower court found the deed of Barnes to plaintiff was intended by defendants to secure to plaintiff the payment of said sum of $8,440, and that plaintiff did not and never did intend to purchase said land and that the statute of limitations has not run against the cause of action set forth in plaintiff's complaint, and that said action is not barred. These and all the findings are warranted by the evidence in the case. As conclusions of law the court found that said deed is a mortgage and a lien upon the lands described therein and in plaintiff's complaint. The judgment was that the deed was a mortgage, and to foreclose the same. The findings support the judgment.

The judgment and order denying a new trial are affirmed.

We concur: CHIPMAN, P. J.; MCLAUGHLIN, J.

menced, he was the owner and entitled to the possession of said land. This is followed by an averment that on the date mentioned the defendant entered upon and ousted and ejected plaintiff to his damage in the sum of $1,000, The prayer demands restitution of the premises with damages in the sumn stated. The defendant filed an answer denying each of the allegations of the complaint and pleading a judgment rendered in an action between plaintiff and defendant's predecessor in interest, involving the title and possession of the land here in controversy, which judgment was affirmed by the Supreme Court. See De Molera v. Martin, 120 Cal. 544, 52 Pac. 825. In connection with this special defense it was alleged that in the complaint in the former action one of the calls in the description of the land read, "south 82 degrees west, 3.35 chains to station," and by reason of a clerical misprision and mistake this call read, "south 82 degrees west 5.35 chains to a station," as inserted in the judgment pleaded. Immediately following this, in a portion of the pleading designated a cross-complaint, the defendant pleaded the facts touching the former action between plaintiff and defendant's grantor, and inserted a copy of the judgment in said former action. The above-mentioned mistake in one of the courses and distances as inserted in the judgment was then set forth, and this was followed by three paragraphs specifically fixing the starting point in the description of the tract of land involved in the former judgment, and more particularly describing one of the boundaries of the tract with reference to the old channel of the Salinas river and the cabin of Buckskin Joe, which was destroyed by fire after the commencement of said action. The cross-complaint further contained specific allegations to the effect that the lands described in the complaint herein are a part of the lands involved in the former action and that the present action is contrary to equity and good conscience, and is intended to harass, vex, and annoy defendant by compelling him to relitigate the same questions which were tried and determined in the action of De Molera v. Martin, and that cross-complainant has no plain, speedy, or adequate remedy at law. The plaintiff demurred to the cross-complaint on the ground that it did not state facts constituting a cause of action. The demurrer was overruled and plaintiff answered, but later withdrew his answer and elected to stand on the demurrer to the crosscomplaint. His default was thereupon entered and the court proceeded to hear evidence touching the averments of the crosscomplaint, all of which were found to be true as pleaded. Judgment was thereupon entered in favor of defendant, and from such judgment this appeal is prosecuted.

Appellant contends that the court erred in overruling his demurrer to the cross-complaint, and this contention presents the only

(4 Cal. App. 298)

MARTIN V. MOLERA. (Civ. 259.) (Court of Appeal, Third District. California.

Sept. 20, 1906.) DJECTMENT - PLEADING CROSS-COMPLAINT -RIGIIT TO FILE.

Under Code Civ. Proc. $ 442, providing that whenever defendant seeks affirmative relief against any party, affecting the property to which the action relates, he may, in addition to his answer, file a cross-complaint, defendant in ejectment was entitled to file a crosscomplaint pleading a judgment rendered in a prior action between plaintiff and defendant's predecessor in interest, involving the title and possession of the land in controversy, and alleging that the action was contrary to equity and intended to annoy defendant by compelling him to relitigate the questions deterinined by such judgment.

Appeal from Superior Court, Monterey County; M. T. Dooling, Judge.

Action of ejectinent by James Martin against E. J. Molera. From a judgment overruling plaintiff's demurrer to defendant's (ross-complaint, plaintiff appeals. Affirmed.

D. M. Delmas and J. J. Wyatt, for appellant. Chas. W. Slack, for respondent.

MCLAUGULIN, J. It is alleged in the complaint herein that on a specified date the plaintiff was the owner, seized in fee and in the possession of a designated tract of land, and, at the time the action was com

point urged in the brief filed in his behalf. It sertion of right. It is not necessary to conis urged that in cases like the one at bar a sider the propriety of thus litigating some cross-complaint is always unnecessary and questions arising out of facts stated in the improper, and Doyle v. Franklin, 40 Cal. 106, amended cross-complaint. The single quesis cited as supporting this view. Waiving tion presented for determination here is the fact that the court expressly declined to whether the cross-complaint states facts sufpass on this particular point in that case, an ficient to entitle the defendant to any ufexamination and analysis of this and cases firmative relief. Having concluded that it of like tenor, shows that our highest court does, the judgment must be aflirmed, and it has simply decided that, where the relief de is so ordered. manded in the cross-complaint can be had upon the denials and averments of the an We concur: CHIPMAX, P. J.; BUCKswer, a cross-complaint is unnecessary. Nel LES, J. son v. O'Brien, 139 Cal. 629, 73 Pac. 469; Miller v. Luco, SO Cal, 261, 22 Pac. 195;

14 Cal. App. 347) Wilson v. Madison, 55 Cal. 8. This, however, Is far from saying that a cross-complaint

SUMNER V. NEVIN. (Civ. 258.) may not, under some circumstances, be both (Court of Appeal, Second District, California, proper and necessary. The rule in eject

Oct. 16, 1906.) ment is identical with the rule in actions to 1. ASSIGNMENTS CONTRACT FOR PERSONAL quiet title, and the reason underlying one

SERVICES. supports the other; hence authorities apply

Where a servant of a real estate broker

made a contract with another person, whereby ing to the latter class of actions apply with

the servant, on his own behalf, became the equal force to actions in ejectment. In Win agent for the sale of such person's land, the ter v. McMillan, 87 Cal. 264, 25 Pac. 407, 22 contract was founded on personal qualities: Am. St. Rep. 243, the Supreme Court, in

and hence, in a suit by the master, an assign

ment of the contract could not be directed, or passing upon the question before us here,

the same decreed to be held in trust. said: "Appellants contend that the demurrer [Ed. Note.-For cases in point, see Cent. Dig, to the cross-complaint ought to have been vol. 4, Assignments, $ 30.] sustained; that a cross-complaint is im 2. MASTER AND SERVANT ACCOUNTING BY proper in actions of this kind. In support

SERVANT. of this contention, they cite Wilson v. Madi

Whatever the servant received on account

of his services in selling the land during the son, 55 Cal. 8. All that case decides is that,

term of his contract with the master belonged where the relief demanded by defendant can to the latter. be had upon the denials and averments of [Ed. Yote.--For cases in point, see Cent. Dig. his answer, a cross-complaint is unnecessary.

vol. 34. Master and Servant, $ 68, 70.] But there may be cases in which full relief 3. SAME. cannot be given the defendant upon answer,

Civ, Code, $ 1956, makes it the duty of an

employé on demand, to render to his employer and, as in ejectment, a cross-complaint in just accounts of all his transactions in the such cases is recognized as a proper plead course of his business as often as may be ing so that the whole controversy may be

reasonable. A real estate broker made a desettled in one action." This doctrine has

mand upon his servant for an accounting, which

was refused, and subsequently the contract received express or implied sanction in a of employment was terminated. During the emnumber of cases where the point was in ployment the servant had received, on his own volved. Angus v. Craven, 132 Cal. 698, 64

behalf, commissions for effecting a sale of real

estate. IIeld, in an action by the broker against Pac. 1091; Islais & S. W. Co. V. Allen, 132

the servant, that the broker was entitled to an Cal. 438, 64 Pac. 713; Am. & Eng. Ency. Pl. accounting as to the amount of commissions & Pr., vol. 17, pp. 354, 356.

received. Under section 12, Code Civ. Proc., when

4. SAME--VATURE OF RELATION.

Civ. Code, $ 229.), defines an agent as ever the defendant seeks affirmative relief af

one who represents another in dealings with fecting the property to which the action re third persons.

Section 2009 defines a servant lates, he may, in addition to his answer, as one employed to render personal services to file a cross-complaint. That the affirma

his employer and who remains entirely under

the control and direction of the latter. Held tive relief demanded by the defendant re

that, where defendant agree to devote his lated to the property to which this action entire time and attention to the interests and relates cannot be gainsaid. That such relief business of plaintiff, a real estate broker, deinvolved more than title and right of posses

fendant's compensation to be a specified per

centage of cominissions, the relation between sion seems equally clear. The plaintiff was the partes was that of master and servant bound by the former decree if the property and not that of principal and agent. in controversy here formed part of the land [Ed. Vote.--For cases in point, see Cent. Dig. embraced in the prior litigation. The defen<- vol. 334, Vaster and Servant, $s 1–3; vol. 40),

Principal and Agent, $$ 3-12.] ant was entitled to relief against harassing. annoying, and vexatious attempts to reli Appeal from Superior Court, Los Angeles gate questions already adjudicated and set County; D. K. Trask, Judge, tled, and, if so, we can conceive of no better Action by C. A. Sumner against W. G. time or place to seek such relief than in an Nevin. From a judgment in favor of deaction practically identical with the case al fendant, plaintiff appeals. Reversed, and reready determined against the plaintiff's as manded for further proceedings.

87 P.-70

Works, Lee & Works, for appellant. T. plaintiff proceeds is that he was entitled to J. Norton and E. W. Camp, for respondent. the services of the defendant until 15 days

after notice of the termination of the employALLEN, J. Judgment for defendant entered ment, to wit, until August 26, 1902; and that upon an order sustaining a demurrer, with the contract entered into by defendant beout leave to amend, from which plaintiff ap

fore such date last mentioned, while in the peals.

name of Nevin, was the property of plaintiff. It appears from the amended complaint While plaintiff in his complaint speaks of that plaintiff, in November, 1901, held an

the various dates of the termination of the exclusive agency for the sale of certain contract and of the service of notice as real property in the city of Los Angeles; being in the year 1904, the written notice that, while such agency was in force, plain itself is set out in the complaint, whicli tiff and defendant entered into a contract, bears the date of 1902, and, taking the whole by the terms of which plaintiff employed complaint together, it is clearly indicated defendant in said business of real estate that a typographical error has occurred, and in such other capacity as he might elect, and that the transaction spoken of was in and the second party agreed to devote his tended to have been alleged in the year 1902. entire time and attention to the interests and The contract of employment between plainbusiness of said first party upon such busi tiff and defendant was a personal one, and by ness as said first party may direct, receiving its terms the relation of master and servant as compensation therefor 10 per cent. com arose, under the definition of section 2009, mission on all policies of insurance placed Civil Code, rather than that of principal by him with said first party, and one-half and agent, as defined by section 2295, Civil of the net commissions received on all loans, Code. While, under the admitted allegarentals, real estate deals, and other trans tions of the complaint, defendant violated actions brought to plaintiff by defendant. his duty towards his employer in accepting It was agreed that such contract of employ other employment inconsistent with the dument might be terminated by either party ties which he owed to plaintiff, yet the perupon 15 days' notice in writing, and that sonal character of the contract which he all deals pending at the time of the termina entered into with the owners of the tract tion of said contract were to be closed and would prevent plaintiff from having any asthe proceeds divided under the contract. signment thereof or benefit therefrom other After the execution of this contract of em than such benefit as inured to him while deployment, the agency of the plaintiff in fendant was actually in his employ. This relation to said tract first mentioned ter contract entered into between Nevin and the minated, and plaintiff directed defendant tract owners being special and founded upon to enter into negotiations with the owners personal qualities, was unassignable without for an extension of such exclusive agency the consent of all parties thereto. Taylor in plaintiff's behalf. It is a verred that de v. Black Diamond Coal Co., 86 Cal. 590, 25 fendant, instead of procuring an extension Pac. 51. The same, therefore, not being asin behalf of plaintiff, took from the owners signable in its character, a court could not in his own name a contract of agency, by

direct the assignment or decree the same to the terms of which defendant personally ob be held in trust. Were it to do so, it would tained the exclusive agency at a commis be to say that a court might decree relief to sion less than that originally agreed to be which the party was not entitled in virtue paid to plaintiff; that on August 10, 1902, de of the contract and under the law; that eqfendant notified plaintiff of the termination uity instead of following the law should of his contract of employment, and at the disregard the same. The obligation, howsame time notified him that he had taken ever, of defendant under his contract with the exclusive agency of the tract in his own plaintiff was to devote his entire time and name, and thereafter proceeded to the sale attention to the interests and business of of lots in said tract, some of which were by plaintiff while this employment existed. It him sold after July, 1902, and before Sep follows, therefore, that whatever defendant tember 1st, the amount of which sales ag received during the life of this contract with gregated $3,300, and, under the contract of plaintiff on account of his services in similar defendant with the owners of the tract, lines of employment, whether under this conwould have entitled him, at a commission tract with the tract owners or otherwise, of 712 per cent., to the sum of $247.50, belonged to his employer. This would be gross commission. There is no specific state true, also, of any property acquired, which, ment as to any other lots sold prior to the in virtue of his employment, ought to have termination of employment. The plaintiff been taken for his employer, yet as to the demanded judgment that the contract of latter, it can only apply to such property agency between the owners of the tract and received by the employé assignable or transdefendant be decreed the property of the ferable in its character. plaintiff, and that he have an accounting of There is no question of damages involved the amount of commissions received by de in the action, in that it is nowhere averred fendant, and a judgment for one-half the net in the complaint that defendant could have amount thereof. The theory upon which the procured a contract in behalf of plaintiff

similar to the one taken in his own name, 3. SAME – UPPER RIPARIAN PROPRIETOR nor any damages on account of the nonper

NOXI'SET. formance of the duty required by plaintiff

Mere nonuser of waters flowing in a stream

by an upper riparian proprietor and the fact of defendant. It is admitted, however, in

that he permitted the waters to pass down to the complaint that, while the employment the lands of the lower owner cannot make the between plaintiff and defendant was in

latter's use of the water adverse or strengthen

the lower proprietor's claim of appropriation force, defendant received, as agent of these

or prescription. tract owners, certain commissions, a part

[Ed. Note.--For cases in point, see Cent. Dig. of which are specifically set forth as aggre vol. 48, Waters and Water Courses, § 150.] gating the sum of $247.50, with an additional

4. SAME-TRIAL-FINDING-FAILURE TO FIND. averment that during that time he sold other Where, in a suit to restrain an upper lots and blocks, but plaintiff is unable to

riparian proprietor from diverting substantially

all the water of the stream for irrigation, the state the number of any of such lots or

complaint alleged no priority of user of the blocks, or of any of them, or the price for

waters for domestic purposes by plaintiff over which the same or any thereof, were sold, or the rights of the defendant, it was not necessary the dates of the sales. Section 1980, Civii

for the court to make a finding on the allegaCode, makes it the duty of an employé, on de

tion in the answer that it was necessary for

Jefendant to use the waters for irrigation and mand, to render to his employer just accounts if it was not used to a reasonable extent deof all his transactions in the course of his fendant would sustain irreparable injury. business, and as often as may be reasonable, 5. SAME-DIVERSION-IRRIGATION-RIGHTS OF

RIPARIAN PROPRIETORS. without demand, give prompt notice to his

Where upper and lower riparian proprietors employer of everything he receives for his

had an equal right to take water from a account. There is an admitted allegation creek and it was admitted that at times there that a demand has been made upon defendant was an abundance of water to supply the wants

of both and at other times only enough for for such accounting, which has been refused.

the use of the lower proprietor, the latter We think the complaint states facts sufficient was entitled to restrain the upper proprietor to entitle plaintiff to an accounting of the from diverting all the waters of the creek amount of commissions actually received

for the irrigation of his riparian land.

6. SAME-JUDGMENT-UNCERTAINTY. during the term of the employment, with a

In a suit by lower riparian proprietors statement of the outlay incident the eto,

to restrain the upper proprietor from diverting that the net amount thereof might be deter all the waters of a creek, a judgment enjoining mined, and one-half of such amount awarded defendant from diverting such waters for the to plaintiff. That the right to an accounting

purpose of irrigation at such times or in such

quantity or amount or in such a manner as is to be determined from the situation of the will prevent the waters of the creek from flowparties with reference to the accounts, and ing to and upon plaintiffs' riparian land in a not because of any particular relation which

sufficient quantity to supply plaintiffs with

fresh water for their natural wants and their one bears to the other, appears to be the

domestic purposes, etc., was fatally defective doctrine of Coward v. Clanton, 122 Cal. 451, for uncertainty as to the amount of water 55 Pac. 147. The subject of accounting is

defendant was required to permit to flow down

the creek for plaintiffs' benefit. one cognizable in equity, over which the su

7. SAME JUDGMENT DETERMINATION OF perior court has jurisdiction. We are of

RIGHTS-ESTOPPEL. opinion, therefore, that the court erred in Such judgment did not constitute a comsustaining the demurrer to the complaint. plete determination of

plete determination of the rights of either The judgment is reversed, and cause re

party and could not, therefore, be pleaded as

an estornel. manded for further proceedings.

Appeal from Superior Court, Napa County ; I concur: GRAY, P. J.

H. C. Gesford, Judge.

Suit by T. G. Rogers and others against I concur in the judgment: SMITII, J.

H. Overacker, Jr. From a judgment in favor of plaintiff, and from an order denying de

fendant's motion for a new trial, he appeals. (4 Cal. App. 333)

Reversed and remanded. ROGERS et al. v. OVERACKER. (Civ. 263.) Mullaney, Grant & Cushing and F. E. John(Court of Appeal. Third District, California.

ston, for appellant. W. F. Henning, for reSept. 27. 1900.)

spondents. 1. WATERS AND WATER COURSES-DIVERSION

OF WATER-IRRIGATION-PRIOR USE-EvI. BUCKLES, J. This is a suit in equity to DENCE.

enjoin the defendant from diverting certain Evidence that defendant diverted water

waters from Conn creek in Napa county. from a stream into a ditch which he testified had a 20 year old growth of brush in it was

After a trial had, the court made findings not evidence that defendant's predecessors in and entered judgment therein in favor of interest had ever diverted the waters of the. the plaintiffs. The defendant appeals from stream for irrigation purposes. 2. SAME-RIPARIAN PROPRIETORS-RIGHT TO

the judgment, and from an order denying his Use.

motion for a new trial. A lower riparian proprietor cannot acquire The complaint alleges that Conn creek a right to water flowing in a stream either by has its source in Howell Mountain in said prior appropriation, prescription, or adverse user as against an upper riparian proprietor whose

Napa county, and runs thence in a natural rights antedated such appropriation and user. defined channel in a southerly direction un

til it enters Napa creek near the town and by reason of the failure of plaintiffs of Yountville and flows along over the to allege the amount of stock which they lands of both plaintiffs and defendant a claim the right to water from said creek, the distance of about four miles, and that the defendant is unable to determine the actual lands of defendant are nearer the source of amount of water claimed by them. Alleges said Conn creek and higher up on the said that the tract of land planted to alfalfa which (reek than any of the lands of plaintiff ; he diverts the water to irrigate is land bethat the lands of plaintiffs and defendant longing to defendant and riparian to said have always been used by themselves and creek and naturally drained into said creek their predecessors in interest for stock rais and that it is necessary to use a reasonable ing, grazing, and farming, and the waters amount of said water to keep the alfalfa of said creek have always been used by them growing on his

his said land so irrigated. for domestic use other than irrigation, until There is no averment in either complaint or about two years ago, and then only the de answer of the amount of water required by fendant has at times diverted and claims the either plaintiffs or defendant, nor of the right to divert all of the water of said approximate amount of water flowing in creck so as to flow the same entirely upon said creek. It does appear, however, that his own lands solely for the purpose of ir. from about July 15, 1902, and 1903, to rigation, which diversion is by means of the time when the cool weather comes the dams erected in said creek and flumes and water has ceased to flow upon the surface of ditches leading the water out and upon his the channel of said creek at some places besaid land, and has thus deprived the plain low the lands of defendant. tiffs of the use of said water and that The court finds, as matter of fact, that all there is now no water running in the chan the lands described are riparian to said creek; nel of said creek on or by their lands; that all these lands have always been used that they need said water for their stock for stock raising, grazing, and farming and and pasturage: that they will suffer ir the waters of said Conn creek have been used reparable loss unless defendant be enjoined by plaintiffs for domestic purposes and waterfrom using said water for irrigation; that ing stock to a greater or less extent, and defendant has no right, by purchase, pre the waters of said creek have never been used scription, or otherwise, to said water other to any appreciable extent for irrigation unthan as a riparian owner, and no right to til within the years 1902 and 1903; that deprive plaintiffs of the natural flow of the plaintiffs are dependent upon the water of water of said creek in the natural chan said (reek during the dry season of the nel thereof.

year for watering their live stock; that in The answer alleges that

that defendants, July, 1902, defendant diverted a considergrantors, and predecessors in interest have able portion of the water of said creek out from time to time for many years diverted of the channel to and upon his lands through the waters of said creek for purposes of ir a flume six by eight inches, for purposes of rigation at a greater or less extent than irrigation; did this again in 1903; that the same have been used by him, and that for 20 or 30 years before the diversion of he used the ditches made and used by his said water by defendant the waters of said grantors. Denies that defendant at any time creek had flowed upon the said lands of diverted or claimed the right to divert all plaintiffs so that, during the dry season of the waters of said creek, and has never at the year, there was abundance of fresh water any time diverted more than one-half of in said creek for their domestic purposes and said waters, and that for irrigation, and watering their stock; and that, by reason that he never deprived the plaintiffs of the of diverting said waters by defendant for use of said waters. That when diverted he irrigation purposes in the dry season of uses said waters for irrigation and for do 1902–03, the plaintiffs were deprived of mestic purposes. Denies that plaintiffs are necessary water for domestic use and water(lependent upon the waters flowing in the ing their stock. As conclusions of law the channel of said creek for watering their stock court found as follows to wit: "The right and other domestic uses. Denies that he is of plaintiffs to a sufficient flow of water of now diverting, or ever has diverted, the Conn creek, in the county of Napa, state of whole of said water, and alleges that he California in the natural channel thereof to does and has diverted only a reasonable and upon the riparian lands of plaintiff's portion thereof, and alleges that there is * * * all seasons of the year sufficient to water enough flowing in the channel of said supply plaintiffs with fresh water for their creek to supply

to supply all the riparian owners natural wants and usual domestic purposes, along the said creek with ample water for including the watering of live stock kept or domestic use and their stock and to irrigate maintained by plaintiffs upon their said more lands than have ever been irrigated by riparian lands, are primary and paramount the defendant. Alleges that, by reason of rights to the right of defendant to divert the failure of the complaint to show that or use any of the waters of said Conn the waters claimed by plaintiffs are to be creek for the purposes of irrigation. Plainused on the lands riparian to said creek tiffs are entitled to judgment enjoining de

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