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ficient. But, as there was an absolute fail- 2. EVIDENCE — CONVERSATIONS IN THE ABure on the part of the railroad company to

SENCE OF A PARTY.

Proof of information conveyed by one decarry out the provisions of its contract in a

fendant to another in the absence of plaintiff, material respect, it was held not entitled to relating to the subject-matter of a letter, writrecover. We have carefully examined the en- ten by the defendant to whom the information tire record, including the instructions given,

was given, after the receipt of the information,

and claimed by plaintiff to be an admission, is and those refused, and from such examina

competent, as tending to show the meaning and tion are unable to conclude that any prej- intent of the words employed in the letter. ridicial error has been committed. The ap- [Ed. Note.For cases in point, see vol. 20, pellants have had a fair trial. The verdict Cent. Dig. Evidence, $$ 1063-1067.] is sustained by the evidence. No prejudicial Appeal from Superior Court, Los Angeles error was committed in admitting or reject

County; D. K. Trask, Judge. ing evidence, nor in denying appellants' mo

Action by Frank B. Dennie against William tion for a nonsuit, nor in overruling their mo

A. Clark and another. Judgment for defendtion for a new trial.

ants. Plaintiff appeals. Affirmed. The judgment is affirmed.

Tanner, Taft & Odell, for appellant. Will A. MOUNT, C. J., and HADLEY and ROOT, Strong and Works, Lee & Works, for respondJJ., concur.

ents.

RUDKIN, J. (dissenting). It seems to me

ALLEN, J. Action to recover the price and that the contract in suit clearly calls for the

value of certain goods alleged to have been construction of a continuous line of road from

sold by plaintiff to the defendants under a at or near Wallula Junction tổ Walla Walla

written contract of sale and purchase. Trial by way of the head of Eureka Flat, and that such contract is not complied with by the

to a jury. Verdict and judgment for defend

ants. Plaintiff moved for a new trial, which construction of a road from at or near Wall

was denied, and appeals from the judgment ula Junction to Walla Walla, through Eureka

and order. Flat, with a branch or spur running to the

P’laintiff by his complaint arerred that the head of the Flat. In other words, I think the

defendants, in writing, ordered from the main line should extend to the head of the

plaintiff certain goods and merchandise to be Flat, and not a branch or spur from the main shipped to Los Angeles, in which they agreed line. I therefore dissent.

to pay the price and value thereof, less a dis

count of 20 per cent. and freight, one-third i 40 Wash. 138)

in three months, one-third in four months, KREBBS v. OREGON R. & NAVIGATION and one-third in six months from date CO. et al.

of shipment; that, pursuant to such order, (Supreme Court of Washington. Sept. 6, 1905.) plaintiff shipped the goods, and defendants Dissenting opinion.

received the same and paid the freight; that For majority opinion, see 82 Pac. 130. no part of the price and value had been paid

to plaintiff by defendants. Defendants deDUNBAR, J. I dissent. The ladder was nied that they ever purchased the goods unevidently placed on the side of the car for der a written contract, or otherwise; denied the use of the brakeman, and the plaintiff, that they ever executed a contract in writing in the hurried discharge of his duties, ought for the purchase of such goods; and by way not be held to too nice a discrimination in the of separate defense alleged that the only contime when, or circumstances under which, he tract or agreement ever entered into between should use a particular appliance. The complaintiff and defendants was for the consignpany was guilty of gross negligence in main-ment by plaintiff to defendants of certain taining the bridge in a condition dangerous goods, to be by defendants sold on commisto its employé, and ought to respond in dam- | sion; that defendants were to advance the ages for the injuries sustained.

freight for plaintiff and to account to plainThe judgment should be affirmed.

tiff for the amount of goods actually sold, less

a commission of 20 per cent. thereon for hand(3 Cal. App. 760)

ling; that the plaintiff was, by agent, to effect DENNIE V. CLARK et al.

the sales, defray any expense, and report such

sales to the defendants, who should fill orders (Court of Appeal, Second District, California. Tune 22, 1906. Rehearing Denied July

for goods thus sold, and become responsible for 20, 1906. Denied by Supreme Court the price and value of orders filled; that the August 20, 1906.)

only contract or agreement in writing ever 1. CONTRACTS-ACTIONS-PROOF OF ALTERA- entered into was that plaintiff should prepare TION—PLEADING.

upon a printed form a list of goods to be Under the denial in the answer of execution of the contract sued on, defendants may

shipped under such agreement, and upon preprove that the contract contained material al- sentation by plaintiff of what purported to terations made after it was signed.

be such list defendants signed the same as [Ed. Note.For cases in point, see vol. 11, evidence of willingness to receive such goods Cent. Dig. Contracts, 88_1724_1726; vol. 2, Cent. Dig. Alteration of Instruments, s 227, upon arrival at Los Angeles, and for no other

purpose; and by way of counterclaim the

228.]

defendants set up the contract, as in the sepa- Nor was any of the evidence offered by derate defense averred, and averred that they fendants received for the purpose of chanadvanced certain freight upon such goods ging or varying a written contract, the execuand received the same in their warehouse, tion of which was established, but was propand plaintiff failed and refused to negotiate erly received to show that the contract actusales thereof, or to receive said goods from ally agreed upon to be signed was different them, and they have been required to provide from the one offered in evidence by plaintiff, storeroom for them to their damage, for and as tending to show the alterations therewhich they ask judgment.

in and their materiality, and particularly to Upon the trial plaintiff offered in evidence show that the instrument offered in evidence a written contract, in effect as claimed by by plaintiff was not an agreement ever enplaintiff in the complaint. Defendants were tered into or contemplated by the parties, permitted to introduce evidence that the writ- and in support of the special defense. ten instrument so offered in evidence by The evidence as to conversations between plaintiff was never signed in the form pre- the defendants in the absence of plaintiff, or sented; that many material alterations had his agent, was admissible for the purpose of been made therein; that it had been in plain- explaining certain written statements claimed tiff's possession continuously after signing, by plaintiff to be admissions against his in

, and that defendants had never had possession terests. The information conveyed to one of thereof. Further, that the only contract ever the defendants by the other relating to the made was as set out in the special defense subject-matter of such subsequent letter was and counterclaim, and that the written agree- competent as tending to show the meaning ment evidenced no contract ever entered into and intent of the words employed and the unbetween plaintiff and the defendants. There derstanding of the writer of the letter as to was much conflict in the testimony, and the status of all parties. many matters offered by plaintiff in the na- We perceive no error in refusing charges ture of admissions after the goods had been 2 and 3 proffered by plaintiff. As to charge shipped, and testimony as to the acts of de- 2, it was inapplicable under the evidence, fendants connected with the paying of freight, while charge 3 is open to the criticism of atand their control, not consistent with their tempting to charge as to the weight and efclaim as to the character of the instrument fect of the testimony before the jury. We actually signed. It was the duty of the jury, find no error in the many other specifications however, to pass upon all of these questions not herein specially noticed. of fact, and to determine the nature of the The judgment and order are affirmed. actual agreement; to determine whether the written agreement had been executed or not;

We concur: GRAY, P. J.; SMITH, J. and its finding, in effect, was that the agreement was as claimed by defendants, and that

(149 Cal. 505) the written contract relied upon by plaintiff

LEWIS v. OGRAM. (L. A. 1.647.) was never executed, and nothing appears in (Supreme Court of California. July 30, 1906. the record which would justify us in disturb

Rehearing Denied Aug. 27, 1906.) ing its verdict.

None of the matters by way BOUNDARIES ESTABLISIIMENTS AGREEof admission, or acts performed by defend- MENT BETWEEN OWNERS. ants in connection with the receipt of the

Where the government surveyor “flagged”

the line between adjoining homesteads, and begoods and their custody over the same,

fore the final survey the homesteaders executed amounted to an estoppel. There was no an agreement reciting a "controversy as to the change of relation upon the faith thereof, and line" and that it was agreed that a fence erected

should be the line and that one would not file no prejudice resulted to plaintiff by reason

on a certain part of his claim, and the fence of any reliance upon any acts or statement was not within 10 chains of the flagged line, the of defendant made or occurring after the agreement, being evidently intended to operate delivery of the goods. Whatever force these

on title, was not within the rule as to the settle

ment of boundaries, the parties knowing that admissions had was in connection with the

the true line was elsewhere, and hence was not main fact of the execution of the instrument. binding. The evidence as to changes in the instrument [Ed. Note.--For cases in point, see vol. 8, after the same was signed was admissible

Cent. Dig. Boundaries, § 216.] under the issue raised by the denial of execu- In Bank. Appeal from Superior Court, tion. The effect of this was not to introduce San Bernardino County; J. W. Taggart, new matter, but to prove that the cause of Judge. action as alleged did not exist and had never Action by Syra E. Lewis against Johnson existed. Landis v. Morrissey, 69 Cal. 86, 10 Ogram. Judgment for defendant. Plaintiff Pac. 258. That the making and delivery of appeals. Affirmed. the contract set out in the complaint was not

Wm. G. Griffith, for appellant. B. F. the act of defendants. IIall v. Auburn Turn

Thomas, for respondent. pike Co., 27 Cal. 257, 87 Am. Dec. 75. There was no admission that a cause of action once SHAW, J.

, Lewis sued Ogram to recover existed and a plea in avoidance, which would damages for trespass on land alleged to be be a special defense, as in Michalitschke v. in his possession, described as the X. 14 of Wells Fargo & Co., 118 Cal. 688, 50 Pac. 817. the X. W. 14 of the N. W. 14 of section 23, township 5, range 28. Ogram filed a cross- said parties further agree that the fence complaint in the usual form to quiet his al- now subsisting and dividing their respective leged title against the claims of plaintiff. claims of said parcel of land shall be and Issue was joined upon the averments of the remain the division line of their said claims complaint and cross-complaint, respectively, irrespective as to what may be the true line and after a trial the court gave judgment that would divide said parcel of land in two for the defendant. Plaintiff appeals.

equal parts lying north and south of such The S. W. 14 of section 14 lies north of true division line. In witness whereof we and adjoins the X. W. 14 of section 23. The have hereunto set our hands this 6th day official United States survey of the boundary of November, 1899." line between the sections was not completed In February, 1900, the official survey was until February, 1900. In April, 1897, Lewis completed, showing that the 20 acres in diswas residing upon the S. W. 14 of section 14, pute constituted the N. 12 of the X. W. 14 and Ogram was residing upon the X. W. 14 of the X. W. 14 of section 23, that it was of section 23, each claiming the right, under not included in the homestead claim of Lewis, the United States land laws, to file a home- and that the line "flagged" through in Austead claim upon his particular tract when gust, 1898, was substantially correct. On open for entry. The location of the division April 5, 1900, Ogram filed his claim for a line between the two tracts was at that time homestead upon the N. W. 14 of section 23, uncertain, but both parties supposed it to be including this 20 acres. In July, 1902, Lewis about 10 chains south of the true line as instituted in the United States land office afterwards surveyed and established. Lewis a contest of the said entry of Ogram with was occupying all that part of the actual respect to the 20 acres, setting forth as his X. W. 14 of section 23, lying between this ground for contest the same facts relied on supposed line and the true line, embracing by him in this action. A hearing of the consubstantially the X. 16 of said 40-acre tract, test was refused by the register and receiver, claiming and believing, until August, 1898, no appeal was taken from the ruling, and, that it was a part of the S. W. 14 of section on September 22, 1902, a patent was duly 14, and that it was covered by his entry. issued by the United States granting the In August, 1898, the government surveyor, at land to the defendant Ogram. Ogram's request and with the knowledge of The rule upon which Lewis, the plaintiff, Lewis, "flagged" a line through between the relies is thus stated in the decisions of this two sections, on or near the true line, and court: "Where coterminous proprietors of set a post at the common section corner thus land, in good faith agree upon, fix, and eslocated at the west end line. The court tablish a boundary line between their refinds that Lewis, thereafter, until this action spective tracts of land, in which they acwas begun, continued in peaceful and ex- quiesce, and under which they occupy, for clusive possession of the 20 acres of section a period equal to that fixed by the statute 23 in controversy, “but with full knowledge of limitations, the line as thus established that the said portion of section 23 was not is binding upon them.” Cooper v. Vierra, covered by his filing.” The finding also states 59 Cal. 283; White y. Spreckels, 75 Cal. 616, that the “exact location of the dividing line 17 Pac. 715; Helm y. Wilson, 76 Cal. 183. between said homestead of the plaintiff and 18 Pac. 604; Dierssen v. Nelson, 138 Cal. the N. W. 14 of the N. W. 14 of section 23" 398, 71 Pac. 456. In other cases it is said was not known by either Lewis or Ogram that the occupancy in pursuance of the agreeuntil the official survey in February, 1900. In ment need not continue for the period of the January, 1893, Lewis and Ogram orally agreed statute of limitations. This is obviously so to establish a division line between their where other conditions creating an estoppel respective claims, and for that purpose meas- exist. Cavanaugh v. Jackson, 91 Cal. 553, ured 10 chains south from the aforesaid line 27 Pac. 931; Helm v. Wilson, supra. This "flagged” by the surveyor and, at that dis- qualification, however, is not important in tance therefrom, built a fence at joint ex- this case. Such an agreement, necessarily, is pense, as and for a division fence between not valid for any other purpose than that of their claims. On November 16, 1899, they settling an uncertainty in regard to the comexecuted the following agreement:

mon boundary. If adjoining owners agree “Whereas there is a controversy between on a division line, knowing that it is not said parties hereto as to the boundary lines the true line, and with the purpose of thereby of their respective government claims in- transferring from one of them to the other cluding in part the northwest quarter of the a body of land which they know his true northwest quarter of section 23, township 5 line does not embrace, the agreement will north, range 28 west S. B. M., and whereas not be enforced. Such a transaction would they are desirous of settling said controversy. not constitute an adjustment of uncertainNow therefore said parties do mutually agree ties or doubts as to the line, but would as follow's, viz.: That the said Ogram will be an attempt to convey or release land from not include in his filing any part of the north one to the other. Land cannot be conveyed half of said parcel of land, and Lewis hereby | by the device of moving fences or changing agrees that he will not include any part of the marks or monuments which define its the south half of said parcel of land. The limits. If an agreement having for its real

object the transfer of the land, but relating by its terms solely to the boundary line and made with knowledge that the true line is elsewhere than at the place fixed, is oral, it would be void, being an attempt to transfer land without writing. If it is in writing it would be ineffectual to pass title, for it would lack the apt words of conveyance that are necessary to accomplish a transfer of real property.

The authorities are to the effect that these agreements, when deemed valid, are of such a nature that they do not operate upon the title at all. It is said that

. "one party does not purport or attempt to sell or convey to the other any land” (Sneed v. Osborn, 25 Cal. 630); that such agreement is "not a contract for the sale or conveyance of lands, and has no ingredients of such a contract" (Boyd v. Graves, 4 Wheat. [U. S.] 413, 4 L. Ed. 628); that "adjoining owners who adjust their partition line by parol, do not create or convey any estate whatever between themselves; no such thought or intention influences their conduct; after their boundary line is fixed by consent they hold up to it by virtue of their title leeds and not by virtue of a parol transfer" (Ilager v. Detweiler, 35 Pa. 409); and that "agreements of this character * * * are not considered as extending the title. They Tio not operate as a conveyance so as to pass the title from one to the other, but proceed upon the theory that the true line of separation is in dispute, and to some extent unknown, and in such cases the agreement serves to fix the line to which the title extends.” White v. Spreckels, supra.

The facts found clearly show that the agreement in question, although in terms purporting only to fix the division line, could have had no other object or purpose than to operate upon the title or right of possession of the parties to the land which they knew was not within the limits of Lewis' claiin. There was, it is true, some uncertainty as to the "exact location" of the section line at the time the agreement was made, but it arose solely from the fact that the flagged line, although made by the government surveyor, had not then become official or final and was still subject to correction and change. The findings, properly construed, are not in conflict on this subject, as claimed by the appellant. There was no doubt or uncertainty over the fact that the so-called division line agreed upon was not the true line, nor anywhere within 10 chains of the true line, nor over the fact that the true line did not include in Lewis' claim any part of the 20 acres lying between the agreed line and the flagged line, the same 20 acres which Lewis now seeks to have transferred to him by virtue of the agreement. The agreement itself indicates this, for it does not recite that there was any uncertainty about the location of the line, but merely that there was a "controversy" about it, which, of course, may have arisen from some other cause. The findings place the absence

of such doubt beyond question. Lewis knew that his claim extended only to the south line of section 14, and that it did not cover any of the 20 acres in question, which the agreed line would give him. He, therefore, must have known that the true line was not 10 chains south of the flagged line, but was either coincident with the flagged line, or somewhere to the north of it. The object and purpose of the agreement, therefore, could not bave been to resolve or settle any existing doubts as to the exact location of the section line. This explains the finding that no consideration passed. If the agreement was made to settle a doubt about the division line, and in good faith to substitute an arbitrary line as the boundary, no other consideration than the mutual concessions of the parties would be necessary. The court below must, therefore, have believed that there was no such purpose and no such concession, and that, for the real object it was intended to accomplish, no consideration was given or received. The line agreed on, in view of the known facts, had no relation to the true line, and could not have been intended to represent the true line. There must have been some ulterior object. It may have been made for the purpose of allowing Lewis an opportunity to change his possession and, when the land was open for entry, file his claim to include this 20 acres, as he would have had the right to do. But he did not see fit to do this, and when the time within which he could have done so expired, Ogram, or any other qualified person, was at liberty to enter it.

Whatever the real purt se may have been, the agreement can have no present effect on the title. It does not, by its terms, purport to convey or transfer any land, or operate upon the title in any manner, and consequently does not effect an estoppel by covenant or agreement. And, being without consideration, it could not, in any event, operate to create such an estoppel. It had no relation whatever to the true line, nor to any doubt concerning the location of the boundary, and hence it does not come within the rule which makes an agreed line binding between the parties, not as a contract to convey, but as an attempt in good faith to make certain that which before was in doubt. We are, therefore, of the opinion that the court below was correct in its decision.

The judgment is affirmed.

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

(149 Cal. 500) JENISON V. REDFIELD et al. (L. A.

1,685.) (Supreme Court of California. July 30, 1906.

Rehearing Denied Aug. 29, 1906.) 1. WATERS AND WATER COURSES-IRRIGATION DISTRICTS-RIGHT TO USE WATER OUTSIDE OP DISTRICT.

Under St. 1887, n. 29, c. 34, and St. 1897, p. 254, c. 189, providing for the organization

of irrigation districts, and authorizing a land- is no pretense that he was ever denied water owner to assign his water rights, the object

for use upon such of his land as was within of which legislation is to enable owners of lands susceptible of irrigation from a common

the district, and unless he was entitled to source and by the same system of works, to have the water to the extent of his share for form a district composed of such lands, which the sole purpose of carrying the same beyond when formed is a public corporation, a land

the limits of the district and irrigating lands owner, even though part of his rights are as an assignee, has no right to water for use beyond

outside thereof, the defendants in no respect the limits of the district.

failed or refused to apportion and distribute 2. SAME.

to him any water to which he was entitled. The fact that a landowner for five years

All the damage alleged, viz., $900, was damhad useil water beyond the limits of the district under a claim of a right to do so, and with age arising by reason of the failure to have the knowledge of the district, gave him no right the water on land lying outside of the disto continue such unwarranted use.

trict. The trial court found that the defendIn Bank. Appeal from Superior Court, ant had not failed or refused to deliver any Los Angeles County; M. T. Allen, Judge. water to which he was entitled, and refused

Action by J. E. Jenison against Henry to admit evidence as to damage to plaintiff's Redfield and others. Judgment for defend- land lying outside of the district by reason ants, and new trial denied. Plaintiff appeals. of lack of water, and these rulings present Affirmed.

for determination the question already stated. Kendrick & Knott, for appellant. J. H.

It is apparent that to sustain the claim Ardis and Stephens & Stephens, for respond

of plaintiff, it must be held that the effect

of our statutes relative to irrigation disents.

tricts, is to make each owner of land within ANGELLOTTI, J. This is an action for

a district the absolute owner of the propordamages alleged to have been suffered by

tionate share of the water of the district to

which his land entitles him, to do with as plaintiff, a landowner of Walnut Irrigation district, by reason of the failure and refusal

he sees fit, even to the extent of diverting of defendants, directors of said district, to

all thereof from the irrigation of lands withdistribute and apportion to him his proportion

in the district. It seems very clear that such of the water of said district. Defendants

a conclusion would be opposed to the whole had judgment, and plaintiff appeals from

plan or scheme of the legislation for irrigasuch judgment, and also from an order deny

tion districts, converting a district organized, ing his motion for a new trial.

acquiring and holding water solely for a Walnut Irrigation district is a public certain specified purpose, viz., the procuring corporation organized under what is known and furnishing of water for the improvement as the "Wright act” (St. 1887, p. 29, c. 34),

by irrigation of the lands included therein, and the acts supplementary thereto. See into a mere agency for the distribution of act of 1897, St. 1897, p. 254, c. 189. Plain

its water to individuals for use by them tiff is the owner of 38 acres of land within

outside the district for any purpose whatthe boundaries of said district, assessed on

Under plaintiff's theory, the use to the last assessment of the property of the

which the water is to be appropriated, is district at $1,100, and is also an assignee of entirely immaterial, and the irrigation disthe right to the water of one J. H. Burke, trict is, in effect, although constituted and who owns 30 acres in said districtassessed arowedly acquiring its water for an entirely at $3,000. The total assessed value of the different purpose, nothing more or less than property of the district was $94,450. Under an ordinary water company, the original the provision of the statute that “all waters absolute owners of the property of which distributed for irrigation purposes shall be are the landowners, each owning such proapportioned ratably to each landowner upon portion thereof as the value of his land enthe basis of the ratio which the last assess titles him to, and at liberty to deal with it ment of such owner for district purposes

as he sees fit, without regard to the improvewithin said district bears to the whole sum

ment of the land of the district. He may assessed upon the district, provided, that any retain it, and use the water for any purpose landowner may assign the right to the whole and in any place, or he may transfer it to or any portion of the waters so apportioned any other person for any kind of use, and to him” (section 18 of act of 1897, St. 1897, thereupon such transferee succeeds to his p. 259, c. 189), plaintiff, as owner and as- rights and becomes entitled to the water. signee of Burke, was entitled to 7100/94 450 Such a construction of the provisions of the of the waters of the district distributed for irrigation act entirely ignores the object of irrigation purposes. It appears that plain- its enactment. The whole object of the legistift owned considerable land, outside of said lation authorizing the organization of irdistrict, upon which he had planted alfalfa rigation districts is to enable owners of lands and walnuts, and the real question presented susceptible of irrigation from a common by this case is as to whether he was entitled source and by the same system of works, to to receive from defendants any portion of form a district composed of such lands, which his share of water for use upon said land district when formed is a public corporation without the boundaries of the district. There for the sole purpose of obtaining and dis

ever.

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