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Was this deed intended as a mortgage? We menced, he was the owner and entitled to think that the defendants in this case are ab- the possession of said land. This is followed solutely estopped by reason of the judgment by an averment that on the date mentioned in that case from asserting in this that the the defendant entered upon and ousted and said instrument was a deed conveying all ejected plaintiff to his damage in the sum of their interest in said land, and therefore and $1,000. The prayer demands restitution of further because that judgment was made an the premises with damages in the sum statissue in this case the judgment roll was prop- ed. The defendant filed an answer denying erly admitted.

each of the allegations of the complaint and Irrespective of the former judgment the pleading a judgment rendered in an action testimony of the plaintiff in this case shows between plaintiff and defendant's predecesthat he never intended to purchase said land sor in interest, involving the title and posand the deed and bond simply constituted his session of the land here in controversy, which security for the money he had loaned the judgment was affirmed by the Supreme Shusters. The lower court found the deed Court. See De Molera v. Martin, 120 Cal. of Barnes to plaintiff was intended by defend- 544, 52 Pac. 825. In connection with this ants to secure to plaintiff the payment of said special defense it was alleged that in the sum of $8,440, and that plaintiff did not and complaint in the former action one of the never did intend to purchase said land and calls in the description of the land read, that the statute of limitations has not run "south 82 degrees west, 3.35 chains to staagainst the cause of action set forth in plain- tion," and by reason of a clerical misprision tiff's complaint, and that said action is not and mistake this call read, "south 82 degrees barred. These and all the findings are war- west 5.35 chains to a station," as inserted in ranted by the evidence in the case. As con- the judgment pleaded. Immediately followclusions of law the court found that said deed ing this, in a portion of the pleading designatis a mortgage and a lien upon the lands de- ed a cross-complaint, the defendant pleaded scribed therein and in plaintiff's complaint. the facts touching the former action between The judgment was that the deed was a mort- plaintiff and defendant's grantor, and insertgage, and to foreclose the same. The findings ed a copy of the judgment in said former support the judgment.

action. The above-mentioned mistake in one The judgment and order denying a new of the courses and distances as inserted in trial are affirmed.

the judgment was then set forth, and this

was followed by three paragraphs specificWe concur: CHIPMAN, P. J.; MCLAUGH- ally fixing the starting point in the descripLIN, J.

tion of the tract of land involved in the former judgment, and more particularly describ

ing one of the boundaries of the tract with (4 Cal. App. 298)

reference to the old channel of the Salinas MARTIN V. MOLERA. (Civ. 259.)

river and the cabin of Buckskin Joe, which (Court of Appeal, Third District. California.

was destroyed by fire after the commenceSept. 20, 1906.)

ment of said action. The cross-complaint EJECTMENT - PLEADING CROSS-COMPLAINT

further contained specific allegations to the -RIGIIT TO FILE. Under Code Civ. Proc. § 442, providing

effect that the lands described in the comthat whenever defendant seeks affirmative relief plaint herein are a part of the lands involved against any party, affecting the property to in the former action and that the present which the action relates, he may, in addition to his answer, file a cross-complaint, defend

action is contrary to equity and good conant in ejectment was entitled to file a cross

science, and is intended to harass, vex, and complaint pleading a judgment rendered in a annoy defendant by compelling him to relitiprior action between plaintiff and defendant's

gate the same questions which were tried and predecessor in interest, involving the title and possession of the land in controversy, and

determined in the action of De Molera v. alleging that the action was contrary to equity Martin, and that cross-complainant has no and intended to annoy defendant by compelling plain, speedy, or adequate remedy at law. him to relitigate the questions deterinined by such judgment.

The plaintiff demurred to the cross-com

plaint on the ground that it did not state Appeal from Superior Court, Monterey

facts constituting a cause of action. County; M. T. Dooling, Judge.

demurrer was overruled and plaintiff anAction of ejectinent by James Martin

swered, but later withdrew his answer and against E. J. Molera. From a judgment

elected to stand on the demurrer to the crossoverruling plaintiff's demurrer to defendant's

complaint. His default was thereupon en(ross-complaint, plaintiff appeals. Affirmed.

tered and the court proceeded to hear eviD. M. Delmas and J. J. Wyatt, for appel- dence touching the averments of the crosslant. Chas. W. Slack, for respondent.

complaint, all of which were found to be

true as pleaded. Judgment was thereupon MCLAUGHLIN, J. It is alleged in the entered in favor of defendant, and from such complaint herein that on a specified date | judgment this appeal is prosecuted. the plaintiff was the owner, seized in fee and Appellant contends that the court erred in in the possession of a designated tract of overruling his demurrer to the cross-comland, and, at the time the action was com- plaint, and this contention presents the only

sertion of right. It is not necessary to cunsider 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 uffirmative relief. Having concluded that it does, the judgment must be a flirmed, and it is so ordered.

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

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, SO 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 112, 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 eliti gate 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 as

87 P.-70

i 4 Cal. App. 347) SUMNER. v. NEVIN. (Civ. 238.) (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 ACCOUNTING BY SERVANT.

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, tliat the broker was entitled to an accounting as to the amount of commissions received. 4. SAME--NATURE OF RELATION.

Civ. Code, $ 229.), 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. Hold that, where defendant agreeri 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. Vote.--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. 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, whiclı 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 inand 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 RIP'ARIAN PROPRIETOR nor any damages on account of the nonper

NONISET. 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 state the number of any of such lots or

all the water of the stream for irrigation, the

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 1986, Civii

for the court to make a finding on the allega

tion in the answer that it was necessary for Code, makes it the duty of an employé, on de

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 to,

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-STOPPEL. opinion, therefore, that the court erred in Such judgment did not constitute a comsustaining the demurrer to the complaint. plete determination of the rights of either The judgment is reversed, and cause re

party and could not, therefore, be pleaded as

an estosnel. 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. Jolin(Court of Appeal. Third District, California.

ston, for appellant. W. F. Henning, for reSept. 27. 1906.)

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 judgident therein in favor of interest had ever diverted the waters of the the plaintiffs. The defendant appeals from stream for irrigation purposes. 2. SAJE-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 until 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 Creek 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 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 creek 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 plaintiffs 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 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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