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Under these circumstances, the land of plaintiff is.justly liable for only a portion of the original debt. The amount of the debt, and the proportion for which plaintiff's land is justly liable are questions that could have been determined in an action brought by plaintiff against defendant to have those matters determined, and possession awarded him upon paying the amount adjudged. Whether this can now be done in this action we do not decide.

The judgment is reversed, and the cause remanded for such proceedings as are not inconsistent with the views herein expressed. Plaintiff shall not recover his costs of appeal. Defendant shall recover his costs of appeal.

We concur: SHAW, J.; SLOSS, J.

On Rehearing. PER CURIAM. Rehearing denied.

lan (Kan.) 74 Pac. 610, 64 L. R. A. 320; Backus v. Burke (Minn.) 65 N. W. 159. Under the rule as declared in these cases, it is immaterial whether possession is taken with or without the consent, express or implied, of the mortgagor. In Backus v. Burke, supra, the Supreme Court of Minnesota repudiated the doctrine enunciated in the earlier case of Roger v. Benton, 39 Minn. 39, 38 N. W. 765, 12 Am. St. Rep. 613, relied on by plaintiff, to the effect that consent of the mortgagor, express or implied, is essential. In Bryan v. Kales, supra, the Supreme Court of the United States declares the rule enunciated above to be the rule prevailing generally in the United States. In Stouffer v. Harlan, supra, is to be found an extended discussion of the question and the decisions there. on. It is there declared that the requirement of the rule that the mortgagee's possession must be obtained by lawful means does not mean that it must be obtained under a formal right capable of enforcement by legal process, but simply that it must not be obtained through any unlawful or wrongful act, upon which the mortgagee would be estopped to found a right. While decisions may be found upholding a contrary doctrine, we are of the opinion that the rule enunciated by the authorities cited is in full accord with equitable principles, and the necessary result of the views of this court as expressed in Brandt v. Thompson, supra, Booth v. Huskins, supra, and Spect y. Spect, supra. The justice of such a rule is shown by the facts of this case, where the possession peaceably and in good faith acquired under color of the foreclosure proceedings has been peaceably and in good faith maintained thereunder for nearly five years, and, the debt being barred, now constitutes the only real security for the debt for which the mortgage was given. The mortgagee ought not to be deprived of the security thus obtained and held, without payment of the amount thereby secured, and equitable principles prevent the accomplishment of such a result at the suit of the mortgagor or his successor.

Plaintiff claims that his contention that plaintiff may recover possession without paying the mortgage debt is fully supported by the decision of this court in Davenport v. Turpin, 43 Cal. 597, and this may be adinitted. But we are satisfied that, in so far as that case supports such a contention, it is so opposed to the principles enunciated in the later California cases already cited that it cannot now be accepted as authority. The other California cases cited upon the question as to what constitutes a mortgagee in possession we do not consider in point here. As we understand the record, the land of plaintiff constituted only a portion of the mortgaged premises, and defendant purchased at the foreclosure sale and entered into possession of all of the mortgaged premises.

BEATTY, C. J. I dissent from the order denying a rehearing. By the present decision the case of Davenport v. Turpin, 43 Cal. 597, is overruled, upon the assumption that it has been heretofore overruled, or set aside, by the decisions in Brandt v. Thompson, 91 Cal. 458, 27 Pac. 763, Spect v. Spect, 88 Cal. 437, 26 Pac. 203. 13 L. R. A. 137, 22 Am. St. Rep. 314, and other cases. It cannot be contended that Davenport v. Turpin has ever been expressly overruled or brought into question, and it has not been set aside by implication from the other decisions cited from our own reports for the reason that all those cases are clearly distinguishable on the facts. In those cases the mortgagees went into possession lawfully under the mortgagor while he was entitled to transfer the possession. In this case the defendant took possession of plaintiff's lot unlawfully after his mortgagor had transferred his right of possession to the plaintiff. He was not in any just sense a mortgagee in possession. Of the decisions cited from other jurisdictions it may be said that, with the single exception of Townshend v. Thomson, 139 N. Y. 152, 34 N. E. 891, they may all be distinguished by the fact that the mortgagee was rightfully in possession by consent of the mortgagor while he retained the title, or where the mortgagee had gone into possession under defective foreclosure proceedings, and where the controversy was wholly between mortgagor and mortgagee. Of course, in such cases the equity of the mortgagee against his mortgagor is more substantial than it is against a grantee of the mortgagor, whose right of possession by virtue of his grant has been violated by the unlawful entry of the mortgagee.

The decision in the New York case does support the present decision, but it cannot be held to justify a reversal of one of our own decisions which has stood so long as a rule of property.

(149 Cal. 511) GLASSELL et al. v. IANSEN .et al. (Sac.

1,370.) (Supreme Court of California. July 31, 1906.) APPEAL-REVERSAL-SCOPE OF ISSUES.

Plaintiff claimed the land in controversy as an accretion to his land, which was bounded by a river, and defendant claimed that the land first appeared as an island in the river and grew by accretions until the channel between the island and plaintiff's land was nearly filled up. The court found for defendant, and on appeal it was held that the evidence justified the finding. but that the court erred in not awarding plaintiff a strip of land included in the complaint and not a part of the island. The judgment was merely "Judgment and order reversed.” II eld, that on the next trial plaintiff was entitled to prove his original claim.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 4713.]

In Bank. Appeal from Superior Court, Solano County; A. J. Buckles, Judge.

Action by Ilugh Glassell and others against Ross IIansen and others. From a judgment in favor of defendant Ilansen, and from an order denying a new trial, plaintiffs appeal. Reversed.

George A. Lamont, Frank R. Devlin, and MeNutt & IIannon, for appellants. A. C. Freeman, for respondents.

MCFARLAND, J. At the time of the commencement of this action the plaintiffs were, and for a great many years prior thereto they and their predecessors in interest had been, the owners in fee of a tract of land in Solano county known generally as the “Toland Ranch,” and having as its eastern boundary what at the time of the inception of their title, and for many years after, was the western bank of the Sacramento river. After plaintiffs had become the owners of the Toland ranch the Sacramento river in front of said ranch commenced to fill up with alluvial deposits which increased in size from year to year until at the time of the bringing of this present action (May 23, 1899), the "made” land in what was formerly a part of the river, and in front of said ranch, amounted to about 140 acres. This present action was brought to recover this made land; the averments of the complaint being that plaintiffs were seised in fee and entitled to the possession thereof, and that defendants had entered thereon and ousted plaintiffs therefrom. The complaint was not verified, and the defendant Ross Hansen filed an answer in which he "denies each and every allegation in the plaintiffs' complaint contained"; and he afterwards filed a supplemental answer, in which he averred that the land in contest was swamp and overflowed land belonging to the state, and that the state in 1885 conveyed said land by a patent to one Kate Nelson, from whom the title by mesne conveyances vested in said defendant. The other defendants disclaim. The court, on

the trial out of which this present appeal arises, gave judgment for defendant Hansen. Plaintiffs made a motion for a new trial, which was denied, and from the order denying the motion for a new trial plaintiffs now appeal.

There had been a prior trial of the case, and an appeal from a judgment in favor of defendants and from an order denying plaintiffs' motion for a new trial. See Glassell v. Hansen, 135 Cal. 547, 67 Pac. 964. At the first trial plaintiffs claimed title upon the theory that the said made land in the river was the result of accretions to plaintiffs' said land lying on the west bank of the river, and, therefore, by a well-established principle, belonging to them as owners of the land to which the made land was thus annexed. Defendants' position was that the origin of this new land was an island which first appeared near the center of the river ; that for a time this island divided the river into two nearly equal streams-one flowing to the east and the other to the west of the island, each large enough for the passage of steamboats; that gradually the island, which was called "Decker Island," grew by accretions to its western side until the western stream of the river became nearly filled up, although there still remains between the island and the mainland a depression or slough which plainly divides the one from the other, and that the accretions were all to the island, and not to the Toland ranch on the mainland; and that therefore the new land was, under section 1016 of the Civil Code, the property of the state, and did not become part of plaintiffs' mainland by accretion. At the first trial the court found in accordance with defendants' contention and rendered judgment accordingly. Plaintiffs appealed from that judgment, and also from an order denying their motion for a new trial. This court disposed of the appeals by holding that the trial court was right in finding that the land in contest, outside of the calls of the original patent of the Toland ranch, was an island, and did not belong to plaintiffs by accretion, but that the court erred in not giving plaintiffs judgment for a strip of land described in the complaint which was not part of the island; and for this latter reason the judgment and order denying a new trial were reversed.

When the case came on to be heard at the second trial, out of which this present appeal arises, the plaintiffs offered to introduce evidence tending to support their original claim that said made land consisted of accretions to the said mainland; but the court refused to allow them to introduce such evidence upon the ground that the judgment of this court on the first appeal bad finally determined that the new or made land in the river was an island, and not formed by accretions to the mainland owned by plain

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tiffs. This ruling was clearly erroneous. On knew the land in controversy since 1869, that appeal this court merely held, as matter and knew the Sacramento river since that of law, that if the land was an island with time, and knew there had been some filling its accretions, and was not made by acire in of the river since he resided there, and tions from the mainland, then it did not be that he had opportunities of observing how lony to plaintiffs, and that on the said first the river had filled in. Q. By Mr. Lamont trial the evidence justified the finding of the (attorney for plaintiffs): Now I wish you lower court that the land was an island. would explain to the court how that has But the court reversed the judgment and or taken place there with regard to this land der denying a new trial upon another ground, in controversy. Mr. Freeman (attorney for namely, that there appeared to be a small defendant): I object, now, that it appears strip of land included in the complaint and that the testimony is to be respecting land in belonging to plaintiffs which was not part of the Sacramento river, to which plaintiffs the island, that the court had not found that have shown no title or claim of title. The the defendant was not in possession of that

testimony of the witness should be excluded strip, and that therefore the judgment and

until there is some evidence. Mr. Lamont: order must be reversed. In reversing the

Of course, we will follow that. Mr. Freeman: (ase this court might have directed what is

It seems to me that it ought to precede it, sues should again be tried, and what should

although it is in the discretion of the court be deemed finally settled by the first trial. at last. The Court: What is the purpose However, it did not do so, and the judgment

of this testimony? Mr. Lamont: The purwas merely in the general terms "the judg pose is to show that this is accretions from ment and order are reversed.” This clearly

the mainland. We will follow that by the left the whole case to be tried anew, as if it patent and deraignment of title, of course, had not been tried before. Falkner v. Hen

from the government down to the plaintiffs dy, 107 Cal. 54, 40 Pac. 21, 386, and cases in this action. The Court: As I understand there cited. Of course, the law of the case it, you propose by this witness to show that was settled to be that islands formed in the

this piece of land in controversy-all of itbeds of rivers belong to the state and not to is accretions to the land to which it is now the owners of land fronting on the river joined. Mr. Lamont: Yes, or, at least, a porbank; but the question whether or not the tion of it. The Court: In other words, the land in contest in the case at bar was an purpose is to show that this piece of land island or was formed by accretions from the in controversy, which has been called an ismainland was as fully at issue at the second land by the Supreme Court, is, in fact, not an trial as at the first.

island, but is accretions to the land of your The learned counsel for respondents con client. Mr. Lamont: That is our idea." tends that the court did not limit the evi There were further offers and discussions dence as above stated; but this contention similar to the preceding, and the court suscannot be maintained. At the beginning of

tained objections to the testimony. The forethe statement on motion for a new trial the going shows, we think, very clearly that the following appears: "After a discussion be court excluded evidence as above stated, tween the court and counsel as to the issues

and the effect of the ruling was not changed to be tried, the court held that, under the

because afterwards plaintiffs were allowed decision of the Supreme Court in this case

to introduce evidence tending to show that (135 Cal. 547, 67 Pac. 964), the issues as to

“if the land grows both ways from the land the island are settled, and that no testimony

side and from the island side" a certain part is to be introduced on that subject. The

of the land in contest was comprised of Court (after reading the said decision of the

accretions from the land side. Plaintiffs

should have been allowed to show, if they Supreme Court): Proceed with your testi

could, that all the land in the river in front mony. I see no reason for opening that

of their land was formed by accretions from again. There will not be any testimony on

their land. Plaintiffs sought, also, to show the island part at all. That I think is suf

title to the land in contest by prescription, ficiently settled by this decision. Mr. Mc

claiming to have been in the actual and adNutt (appearing for plaintiff): We want to

verse possession thereof for more than five reserve the question, of course. I suppose

years before the commencement of the action. the regular way would be to introduce the

There was a good deal of evidence introduced witness and offer proof. The Court: Sup

by both parties on this issue of plaintiffs' pose you offer a witness and make state

title by prescription. We do not deem it ment of what you propose to prove hy this

necessary to notice such evidence in detail. witness; then you could get your objection

It is sufficient to say that plaintiffs failed to the ruling of the court. Thereupon, E. C. to show such title by actual possession, by Dozier was called as a witness for the plain- pasturing of stock, or by any other means ; tiffs. (Explanation, and the map used on a and, as this issue was fully and fairly tried, former trial is brought in and affixed to the we do not think that it would be right or blackboard.) The witness testified that he

just to compel defendant to try it over again.

A new trial will, therefore, be ordered only as to the question: Was the made land in contest formed by an island and its accretions, or by accretions from the mainland?

The order denying plaintiffs' motion for a new trial is reversed, and the cause is remanded for a new trial on the sole issue whether the made land in the Sacramento river opposite plaintiffs' tract of land called the “Toland Ranch” was formed by accretions from the mainland belonging to plaintiffs, or whether said made land appeared as an island and grew from accretions to such island.

We concur: HENSHAW, J.; LORIGAN, J.

11 Cal. App. 41) MURRAY v. LLEWELLYN IRON WORKS

CO. (Court of Appeal, Second District, California.

June 27, 1906.) 1. NEGLIGENCE-FIRES-ORIGIN-CIRCUMSTANTIAL EVIDENCE.

In an action for damages from fire alleged to have resulted from the negligence of defendant's servants, the fact that the evidence as to the origin of the fire was circumstantial did not l'ender it inadmissible. 2. TRIAL -- INSTRUCTIONS – WEIGIIT OF EVIDENCE.

An instruction that the jury should consider the facts in evidence in determining whethor or not the fire referred to in the complaint was due to a specified cause was not objectionable as a charge on the weight of the evidence. 3. WITNESSES-CREDIBILITY-EMPLOYMENT BY PARTY.

An instruction that the jury should receive the testimony of the defendant's employés the same as the testimony of any other witness, and determine the credibility of such employés by the same principles and tests as would be applied to any other witness, was erroneous and properly denied.

[Ed. Note.--For cases in point, see vol. 50, Cent. Dig. Witnesses, $ 1187.]

Appeal from Superior Court, Los Angeles County; B. N. Smith, Judge.

Action by C. F. Murray against the Llewellyn Iron Works Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones & Weller and Davis, Rush & Willis, for appellant. Russ Avery and Anderson & Anderson, for respondent.

caused by the negligence of the defendant's servants, who at that time were engaged in working on the Huntington Building. There was no direct proof of the origin of the fire, which occurred in the early hours of the 6th of October; but it appears from the evidence that the work on which the defendant's employés were engaged required the use of riyets heated to a white heat, which were habitually thrown from the heater to the riveter and caught for the latter in a bucket. It sometimes happened, however, that the riy. ets were not caught, but, while the men were working on the south side of the building, would sometimes fall over the line onto the land of the plaintiff, or the land of his neighbor adjoining on the rear. It was in proof that this happened twice on the morning of the 5th, between the hours of 10 and 12 o'clock, the rivet falling, on one occasion, on the lot adjoining just to the rear of plaintiff's lot, and the other across the fence on his lot; and on each occasion a fire was started, which was extinguished by the defendant's employés. Evidence of similar occurrences upon other occasions before and after the fire was also given. The plaintiff's theory is that the origin of the fire in question was similar to that of the fires that had thus occurred, and much evidence was introduced to exclude the probability of its having originated otherwise.

Vumerous points are urged by the defend. ant, but we think they are all untenable. The evidence as to the origin of the fire was, indeed, circumstantial only; but it was not on that account inadmissible (Code Civ. Proc. $ 1832), and we think it was sufficient to sustain the verdict. The instruction complained of does not instruct the jury as to the weight of evidence, but simply that they were to consider the facts in evidence "in determining whether or not the fire referred to in the complaint * * *

was due to the same cause." Nor did the court refuse to instruct the jury that “defendant's employés were entitled to due credit as witnesses.” The request of the defendant was that the jury should be instructed "to receive the testimony of such witness * * * the same as that of the testimony of any other witness, and to determine the credibility of such employé by the same principles and tests by which they would determine the credibility of any other witness," which would have been manifestly erroneous.

There are some other objections on the part of appellant, but we deem it unnecessary to consider them. On the whole, we find no error in the record.

The judgment and order appealed from are affirmed.

SMITH, J. Appeal from a judgment for the plaintiff and an order denying the defendant's motion for a new trial. The plaintiff is the owner of a building and lot fronting on Los Angeles street, adjoining the Huntington Building, which extends from Los Angeles street to Main street and abuts on the north on Sixth street; and he brought this suit for damages to his building and other property on his lot from fire, alleged to have been

We concur: GRAY, P. J.: ALLEN. J.

(4 Cal. App. 76)

SOUTHERN PAC. R. CO. v. BOVARD. (Court of Appeal, Second District, California.

July 9, 1906.) PUBLIC LANDS-RAILROAD GRANTS- INDEMNITY LANDS-SELECTION.

The determination by the United States Supreme Court that the grant to the Southern Pacific Railroad Company by Act Cong. March 3, 1871, 16 Stat. 573, c. 122, did not include land within the limits of the grant made by Act Cong. July 27, 1866, 14 Stat. 292, c. 278, to the Atlantic & Pacific Company, refers only to lands within the 20-mile limit of the Southern Pacific Railroad Line falling within the like limits of the Atlantic & Pacific, and does not apply to indemnity lands to which the title accrues only on selection, and which may be selected from any public lands of the United States within the indemnity limits.

Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

Action by the Southern Pacific Railroad Company against M. M. Bovard. From a judgment for plaintiff, defendant appeals. Affirmed.

M. C. Hester, for appellant. William Singer, Jr., and Guy Shoup, for appellee.

tion was approved by the register and receiver of the United States land office at Los Angeles on October 3, 1887; but it appears from the stipulation that the selection was set aside by order of the Secretary of the In. terior and the Commissioner of the General Land Office on April 15, 1898, and the lands included in the selection, including the land in controversy, restored to the public domain.

It is found by the court that it has not been determined, by the decisions of the Supreme Court of the United States or otherwise, that plaintiff is not entitled to a patent; and whether upon the facts stipulated this finding can be sustained is the only question involved. The contrary is claimed by the appellant upon the authority of U. S. v. S. P. R. R. Co., 146 U. S. 570, 13 Sup. Ct. 152, 36 L. Ed. 1091, Id., 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104, and Southern Pac. R. R. Co. v. Painter, 113 Cal. 251, 45 Pac. 320; where it is held, in effect, that the grant to the Southern Pacific Railroad Company by the act of March 3, 1871, did not include land within the limits of the grant made by the act of 1866 to the Atlantic & Pacific Company. But these decisions refer only to lands within the 20-mile limit of the Southern Pacific Railroad falling within the like limits of the Atlantic and Pacific.. They have no application to indemnity lands, to which the title accrues only upon selection, and which may be selected from any public lands of the United States within the indemnity limits. U. S. V. S. P, R. R. Co., 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104; S. P. R. R. Co. v. U. S., 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307; Ryan v. Railroad Co., 99 U. S. 382, 25 L. Ed. 305; Southern Pac. Co. v. Lipman (Cal. Sup.) 83 Pac. 445.

We are of the opinion that the judgment must be affirmed, and it is so ordered,

We concur: GRAY, P. J.; ALLEN, J.

SMITH, J. The suit was brought to foreclose the rights of the defendant under a contract for the sale of the land in question, made by the plaintiff to the defendant March 9, 1887. Judgment was entered in favor of the plaintiff, requiring the defendant to pay the plaintiff the sums due on the contract, amounting to $2,681.19, with interest, etc., within 30 days of the date of the decree, or otherwise to be foreclosed of his rights under the contract. The defendant appeals from the judgment.

By the terms of the agreement the plaintiff agreed to sell and the defendant to buy the land described in the contract for the sum of $1,536.70, payable with interest, as follows: $307.34 and one year's interest in advance on the remainder, $86.06, on the execution of the contract; and the balance, with interest at 7 per cent., March 9, 1892. It was

further provided that a deed should be exe...cuted upon receipt of a patent, and, in case

it should appear that plaintiff was not entitled to a patent, all moneys paid should be returned without interest. The defense is, in effect, that it has been finally determined by the decisions of the Supreme Court of the United States that plaintiff is not entitled to a patent; and in a cross-complaint the defendant seeks to recover the amount paid under the contract. The land in question "is within the place limits of the grant made to the Atlantic & Pacific Railroad Company by act of Congress approved July 27, 1866 (14 Stat. 292, c. 278), and is also within the indemnity limits of the grant made to the Southern Pacific Railroad Company by act of Congress approved March 3, 1871 (16 Stat. 573, c. 122), and was selected by said Southern Pacific Railroad Company in due form under the act of March 3, 1871." This selec

(4 Cal. App. 94) WYCKOFF V. SOUTHERN PAC. CO. (Court of Appeal, Second District, California.

July 10, 1906.) TRIAL-INSTRUCTIONS AS TO MATTER OF FACT.

Under Const. art. 6, § 19, providing that judges shall not charge with respect to matters of fact, but may state the testimony and declare the law, it is error to charge that the fact, if found, that the engine colliding with a team at a crossing was running 35 miles an hour does not establish negligence.

[Ed. Note.--For cases in point, see vol. 46, Cent. Dig. Trial, $$ 442-445.]

Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Action by Will E. Wyckoff against the Southern Pacific Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

J. W. McKinley, for appellant. Charles H, Mattingly, for respondent.

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