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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.

(4 Cal. App. 298)

MARTIN v. MOLERA. (Civ. 259.) (Court of Appeal,. Third District. California. Sept. 20, 1906.)

EJECTMENT - PLEADING CROSS-COMPLAINT -RIGHT 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 determined by such judgment.

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

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

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

MCLAUGHLIN, 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

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 sum 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

point urged in the brief filed in his behalf. It is urged that in cases like the one at bar a cross-complaint is always unnecessary and improper. and Doyle v. Franklin, 40 Cal. 106, is cited as supporting this view. Waiving the fact that the court expressly declined to pass on this particular point in that case, an examination and analysis of this and cases of like tenor, shows that our highest court has simply decided that, where the relief demanded in the cross-complaint can be had upon the denials and averments of the answer, a cross-complaint is unnecessary. Nelson v. O'Brien, 139 Cal. 629, 73 Pac. 469; Miller v. Luco, 80 Cal. 261, 22 Pac. 195; Wilson v. Madison, 55 Cal. S. This, however, is far from saying that a cross-complaint may not, under some circumstances, be both proper and necessary. The rule in ejectment is identical with the rule in actions to quiet title, and the reason underlying one supports the other; hence authorities applying to the latter class of actions apply with equal force to actions in ejectment. In Winter v. McMillan, 87 Cal. 264, 25 Pac. 407, 22 Am. St. Rep. 243, the Supreme Court, in passing upon the question before us here, said: "Appellants contend that the demurrer to the cross-complaint ought to have been sustained; that a cross-complaint is improper in actions of this kind. In support of this contention, they cite Wilson v. Madison, 55 Cal. 8. All that case decides is that, where the relief demanded by defendant can be had upon the denials and averments of his answer, a cross-complaint is unnecessary. But there may be cases in which full relief cannot be given the defendant upon answer, and, as in ejectment, a cross-complaint in such cases is recognized as a proper pleading so that the whole controversy may be settled in one action." This doctrine has received express or implied sanction in a number of cases where the point was involved. Angus v. Craven, 132 Cal. 698, 64 Pac. 1091; Islais & S. W. Co. v. Allen, 132 Cal. 438, 64 Pac. 713; Am. & Eng. Ency. Pl. & Pr., vol. 17, pp. 354, 356.

Under section 442, Code Civ. Proc., whenever the defendant seeks affirmative relief affecting the property to which the action relates, he may, in addition to his answer, file a cross-complaint. That the affirmative relief demanded by the defendant related to the property to which this action relates cannot be gainsaid. That such relief involved more than title and right of possession seems equally clear. The plaintiff was bound by the former decree if the property in controversy here formed part of the land embraced in the prior litigation. The defendant was entitled to relief against harassing. annoying, and vexatious attempts to relitigate questions already adjudicated and settled, and, if so, we can conceive of no better time or place to seek such relief than in an action practically identical with the case already determined against the plaintiff's as87 P.-70

sertion of right. It is not necessary to consider the propriety of thus litigating some questions arising out of facts stated in the amended cross-complaint. The single question presented for determination here is whether the cross-complaint states facts sufficient to entitle the defendant to any affirmative relief. Having concluded that it does, the judgment must be affirmed, and it is so ordered.

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

¡4 Cal. App. 347)

SUMNER v. NEVIN. (Civ. 258.) (Court of Appeal, Second District, California. Oct. 16, 1906.)

1. ASSIGNMENTS CONTRACT FOR PERSONAL SERVICES.

Where a servant of a real estate broker made a contract with another person, whereby the servant, on his own behalf, became the agent for the sale of such person's land, the contract was founded on personal qualities: and hence, in a suit by the master, an assignment of the contract could not be directed, or the same decreed to be held in trust.

[Ed. Note. For cases in point, see Cent. Dig. vol. 4, Assignments, § 30.]

2. MASTER AND SERVANT SERVANT.

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Whatever the servant received on account of his services in selling the land during the term of his contract with the master belonged to the latter.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 68, 70.] 3. SAME.

Civ. Code, § 1986, makes it the duty of an employé on demand, to render to his employer just accounts of all his transactions in the course of his business as often as may be reasonable. A real estate broker made a demand upon his servant for an accounting, which was refused, and subscquently the contract of employment was terminated. During the employment the servant had received, on his own behalf, commissions for effecting a sale of real estate. Held, in an action by the broker against the servant, that the broker was entitled to an accounting as to the amount of commissions. received.

4. SAME--NATURE OF RELATION.

Civ. Code, § 2295, defines an agent as one who represents another in dealings with third persons. Section 2009 defines a servant as one employed to render personal services to his employer and who remains entirely under the control and direction of the latter. Held that, where defendant agreed to devote his entire time and attention to the interests and business of plaintiff, a real estate broker, defendant's compensation to be a specified percentage of commissions. the relation between the partes was that of master and servant and not that of principal and agent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant. §§ 1-3; vol. 40, Principal and Agent, $§ 3-12.]

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by C. A. Sumner against W. G. Nevin. From a judgment in favor of defendant, plaintiff appeals. Reversed, and remanded for further proceedings.

Works, Lee & Works, for appellant. T. J. Norton and E. W. Camp, for respondent.

ALLEN, J. Judgment for defendant entered upon an order sustaining a demurrer, without leave to amend, from which plaintiff appeals.

It appears from the amended complaint that plaintiff, in November, 1901, held an exclusive agency for the sale of certain real property in the city of Los Angeles; that, while such agency was in force, plaintiff and defendant entered into a contract, by the terms of which plaintiff employed defendant in said business of real estate and in such other capacity as he might elect, and the second party agreed to devote his entire time and attention to the interests and business of said first party upon such business as said first party may direct, receiving as compensation therefor 10 per cent. commission on all policies of insurance placed by him with said first party, and one-half of the net commissions received on all loans, rentals, real estate deals, and other transactions brought to plaintiff by defendant. It was agreed that such contract of employment might be terminated by either party upon 15 days' notice in writing, and that all deals pending at the time of the termination of said contract were to be closed and the proceeds divided under the contract. After the execution of this contract of employment, the agency of the plaintiff in relation to said tract first mentioned terminated. and plaintiff directed defendant to enter into negotiations with the owners for an extension of such exclusive agency in plaintiff's behalf. It is averred that defendant, instead of procuring an extension in behalf of plaintiff, took from the owners in his own name a contract of agency, by the terms of which defendant personally obtained the exclusive agency at a commission less than that originally agreed to be paid to plaintiff; that on August 10, 1902, defendant notified plaintiff of the termination of his contract of employment, and at the same time notified him that he had taken the exclusive agency of the tract in his own name, and thereafter proceeded to the sale of lots in said tract, some of which were by him sold after July, 1902, and before September 1st. the amount of which sales aggregated $3,300, and, under the contract of defendant with the owners of the tract, would have entitled him, at a commission of 71⁄2 per cent., to the sum of $247.50, gross commission. There is no specific statement as to any other lots sold prior to the termination of employment. The plaintiff demanded judgment that the contract of agency between the owners of the tract and defendant be decreed the property of the plaintiff, and that he have an accounting of the amount of commissions received by defendant, and a judgment for one-half the net amount thereof. The theory upon which the

plaintiff proceeds is that he was entitled to the services of the defendant until 15 days after notice of the termination of the employment, to wit, until August 26, 1902; and that the contract entered into by defendant before such date last mentioned, while in the name of Nevin, was the property of plaintiff.

While plaintiff in his complaint speaks of the various dates of the termination of the contract and of the service of notice as being in the year 1904, the written notice itself is set out in the complaint, which bears the date of 1902, and, taking the whole complaint together, it is clearly indicated that a typographical error has occurred, and that the transaction spoken of was intended to have been alleged in the year 1902. The contract of employment between plaintiff and defendant was a personal one, and by its terms the relation of master and servant arose, under the definition of section 2009. Civil Code, rather than that of principal and agent, as defined by section 2295, Civil Code. While, under the admitted allegations of the complaint, defendant violated his duty towards his employer in accepting other employment inconsistent with the duties which he owed to plaintiff, yet the personal character of the contract which he entered into with the owners of the tract would prevent plaintiff from having any assignment thereof or benefit therefrom other than such benefit as inured to him while defendant was actually in his employ. This contract entered into between Nevin and the tract owners being special and founded upon personal qualities, was unassignable without the consent of all parties thereto. Taylor v. Black Diamond Coal Co., 86 Cal. 590, 25 Pac. 51. The same, therefore, not being assignable in its character, a court could not direct the assignment or decree the same to be held in trust. Were it to do so, it would be to say that a court might decree relief to which the party was not entitled in virtue of the contract and under the law; that equity instead of following the law should disregard the same. The obligation, however, of defendant under his contract with plaintiff was to devote his entire time and attention to the interests and business of plaintiff while this employment existed. It follows, therefore, that whatever defendant received during the life of this contract with plaintiff on account of his services in similar lines of employment, whether under this contract with the tract owners or otherwise, belonged to his employer. This would be true, also, of any property acquired, which, in virtue of his employment, ought to have been taken for his employer, yet as to the latter, it can only apply to such property received by the employé assignable or transferable in its character.

There is no question of damages involved in the action, in that it is nowhere averred in the complaint that defendant could have procured a contract in behalf of plaintiff

similar to the one taken in his own name, nor any damages on account of the nonperformance of the duty required by plaintiff of defendant. It is admitted, however, in the complaint that, while the employment between plaintiff and defendant was in force, defendant received, as agent of these tract owners, certain commissions, a part of which are specifically set forth as aggregating the sum of $247.50, with an additional averment that during that time he sold other lots and blocks, but plaintiff is unable to state the number of any of such lots or blocks, or of any of them, or the price for which the same or any thereof, were sold, or the dates of the sales. Section 1986, Civil Code, makes it the duty of an employé, on demand, to render to his employer just accounts of all his transactions in the course of his business, and as often as may be reasonable, without demand, give prompt notice to his employer of everything he receives for his account. There is an admitted allegation that a demand has been made upon defendant for such accounting, which has been refused. We think the complaint states facts sufficient to entitle plaintiff to an accounting of the amount of commissions actually received during the term of the employment, with a statement of the outlay incident thereto, that the net amount thereof might be determined, and one-half of such amount awarded to plaintiff. That the right to an accounting is to be determined from the situation of the parties with reference to the accounts, and not because of any particular relation which one bears to the other, appears to be the doctrine of Coward v. Clanton, 122 Cal. 451, 55 Pac. 147. The subject of accounting is one cognizable in equity, over which the superior court has jurisdiction. We are of opinion, therefore, that the court erred in sustaining the demurrer to the complaint. The judgment is reversed, and cause remanded for further proceedings.

I concur: GRAY, P. J.

I concur in the judgment: SMITII, J.

(4 Cal. App. 333)

(Civ. 263.)

ROGERS et al. v. OVERACKER. (Court of Appeal. Third District, California. Sept. 27. 1906.)

1. WATERS AND WATER COURSES-DIVERSION OF WATER--IRRIGATION-PRIOR USE-EVI. DENCE.

Evidence that defendant diverted water from a stream into a ditch which he testified had a 20 year old growth of brush in it was not evidence that defendant's predecessors in interest had ever diverted the waters of the. stream for irrigation purposes.

2. SAME RIPARIAN PROPRIETORS RIGHT TO USE.

A lower riparian proprietor cannot acquire a right to water flowing in a stream either by prior appropriation, prescription, or adverse user as against an upper riparian proprietor whose rights antedated such appropriation and user.

3. SAME UPPER RIPARIAN PROPRIETOR NONUSER.

Mere nonuser of waters flowing in a stream by an upper riparian proprietor and the fact that he permitted the waters to pass down to the lands of the lower owner cannot make the latter's use of the water adverse or strengthen the lower proprietor's claim of appropriation or prescription.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 150.] 4. SAME TRIAL-FINDING-FAILURE TO FIND. Where, in a suit to restrain an upper riparian proprietor from diverting substantially all the water of the stream for irrigation, the complaint alleged no priority of user of the waters for domestic purposes by plaintiff over the rights of the defendant, it was not necessary for the court to make a finding on the allegation in the answer that it was necessary for defendant to use the waters for irrigation and if it was not used to a reasonable extent defendant would sustain irreparable injury. 5. SAME-DIVERSION-IRRIGATION-RIGHTS OF RIPARIAN PROPRIETORS.

Where upper and lower riparian proprietors had an equal right to take water from a creek and it was admitted that at times there was an abundance of water to supply the wants of both and at other times only enough for the use of the lower proprietor, the latter was entitled to restrain the upper proprietor from diverting all the waters of the creek for the irrigation of his riparian land. 6. SAME JUDGMENT UNCERTAINTY.

In a suit by lower riparian proprietors to restrain the upper proprietor from diverting all the waters of a creek, a judgment enjoining defendant from diverting such waters for the purpose of irrigation at such times or in such quantity or amount or in such a manner as will prevent the waters of the creek from flowing to and upon plaintiffs' riparian land in a sufficient quantity to supply plaintiffs with fresh water for their natural wants and their domestic purposes, etc., was fatally defective for uncertainty as to the amount of water defendant was required to permit to flow down the creek for plaintiffs' benefit.

7. SAME JUDGMENT - DETERMINATION OF RIGHTS ESTOPPEL.

Such judgment did not constitute a complete determination of the rights of either party and could not, therefore, be pleaded as an estoppel.

Appeal from Superior Court, Napa County; H. C. Gesford, Judge.

Suit by T. G. Rogers and others against H. Overacker, Jr. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed and remanded.

Mullaney, Grant & Cushing and F. E. Johnston, for appellant. W. F. Henning, for respondents.

BUCKLES, J. This is a suit in equity to enjoin the defendant from diverting certain waters from Conn creek in Napa county. After a trial had, the court made findings and entered judgment therein in favor of the plaintiffs. The defendant appeals from the judgment, and from an order denying his motion for a new trial.

The complaint alleges that Conn creek has its source in Howell Mountain in said Napa county, and runs thence in a natural defined channel in a southerly direction un

til it enters Napa creek near the town of Yountville and flows along over the lands of both plaintiffs and defendant a distance of about four miles, and that the lands of defendant are nearer the source of said Conn creek and higher up on the said creek than any of the lands of plaintiff ; that the lands of plaintiffs and defendant have always been used by themselves and their predecessors in interest for stock raising, grazing, and farming, and the waters of said creek have always been used by them for domestic use other than irrigation, until about two years ago, and then only the defendant has at times diverted and claims the right to divert all of the water of said creek so as to flow the same entirely upon his own lands solely for the purpose of irrigation, which diversion is by means of dams erected in said creek and flumes and ditches leading the water out and upon his said land, and has thus deprived the plaintiffs of the use of said water and that there is now no water running in the channel of said creek on or by their lands; that they need said water for their stock and pasturage: that they will suffer irreparable loss unless defendant be enjoined from using said water for irrigation; that defendant has no right, by purchase, prescription, or otherwise, to said water other than as a riparian owner, and no right to deprive plaintiffs of the natural flow of the water of said creek in the natural channel thereof.

The answer alleges that defendants, grantors, and predecessors in interest have from time to time for many years diverted the waters of said creek for purposes of irrigation at a greater or less extent than the same have been used by him, and that he used the ditches made and used by his grantors. Denies that defendant at any time diverted or claimed the right to divert all the waters of said creek, and has never at any time diverted more than one-half of said waters, and that for irrigation, and that he never deprived the plaintiffs of the use of said waters. That when diverted he uses said waters for irrigation and for domestic purposes. Denies that plaintiffs are dependent upon the waters flowing in the channel of said creek for watering their stock and other domestic uses. Denies that he is now diverting, or ever has diverted, the whole of said water, and alleges that he does and has diverted only a reasonable portion thereof, and alleges that there is water enough flowing in the channel of said creek to supply all the riparian owners along the said creek with ample water for domestic use and their stock and to irrigate more lands than have ever been irrigated by the defendant. Alleges that, by reason of the failure of the complaint to show that the waters claimed by plaintiffs are to be used on the lands riparian to said creek

and by reason of the failure of plaintiffs to allege the amount of stock which they claim the right to water from said creek, the defendant is unable to determine the actual amount of water claimed by them. Alleges that the tract of land planted to alfalfa which he diverts the water to irrigate is land belonging to defendant and riparian to said creek and naturally drained into said creek and that it is necessary to use a reasonable amount of said water to keep the alfalfa growing on his his said land so irrigated. There is no averment in either complaint or answer of the amount of water required by either plaintiffs or defendant, nor of the approximate amount of water flowing in said creek. It does appear, however, that from about July 15, 1902, and 1903, to the time when the cool weather comes the water has ceased to flow upon the surface of the channel of said creek at some places below the lands of defendant.

The court finds, as matter of fact, that all the lands described are riparian to said creek; that all these lands have always been used for stock raising, grazing, and farming and the waters of said Conn creek have been used by plaintiffs for domestic purposes and watering stock to a greater or less extent, and the waters of said creek have never been used to any appreciable extent for irrigation until within the years 1902 and 1903; that plaintiffs are dependent upon the water of said creek during the dry season of the year for watering their live stock; that in July, 1902, defendant diverted a considerable portion of the water of said creek out of the channel to and upon his lands through a flume six by eight inches, for purposes of irrigation; did this again in 1903; that for 20 or 30 years before the diversion of said water by defendant the waters of said creek had flowed upon the said lands of plaintiffs so that, during the dry season of the year, there was abundance of fresh water in said creek for their domestic purposes and watering their stock; and that, by reason of diverting said waters by defendant for irrigation purposes in the dry season of 1902-03, the plaintiffs were deprived of necessary water for domestic use and watering their stock. As conclusions of law the court found as follows to wit: "The right of plaintiffs to a sufficient flow of water of Conn creek, in the county of Napa, state of California in the natural channel thereof to and upon the riparian lands of plaintiffs

all seasons of the year sufficient to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of live stock kept or maintained by plaintiffs upon their said riparian lands, are primary and paramount rights to the right of defendant to divert or use any of the waters of said Conn creek for the purposes of irrigation. Plaintiffs are entitled to judgment enjoining de

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