Candeias v. Superior Court

BUCK, P. J.,

pro tem.

Mandamus

to compel respondent, as judge of the superior court of the county of Merced, to order a stay of execution upon a judgment of dispossession rendered against petitioner in an uplawful detainer suit now on appeal to this court.

From the petition and return it appears that petitioner was the tenant of one Pfitzer of an eighty-acre dairy farm under a five-year lease, expiring in December of 1922. At the time of the lease there were about forty-five acres of the land planted to alfalfa, and by the terms of the lease petitioner agreed to “keep all stock off of the alfalfa land when the same is wet; to keep the hogs in a special field, and not to allow the same to run in any other field or fields; and in the event that any of the alfalfa is tramped out or damaged by stock, said party of the second part (petitioner) agrees to reseed the same at his own cost and expense.” The petitioner had on the premises about eighty dairy cows and the necessary implements and appliances for conducting a dairy business.

On April 21st of this year an action in unlawful detainer was commenced by the lessor against the petitioner wherein it was claimed that the petitioner had failed and refused to keep his stock off the said alfalfa land when it was wet, but- had suffered it to run upon the land seeded to alfalfa while the same was wet, and that by reason of its being wet, cattle pasturing thereon bogged into the same, tracked it up, and injured and destroyed to a great extent the alfalfa growing thereon. Upon a trial of the cause and the hearing of testimony the court found in accordance with the foregoing allegation, and further found that by reason of the pasturing of said land “that plaintiffs have been damaged in the sum of one hundred dollars, and that defendant has violated the covenants of his lease,” and rendered judgment restoring to plaintiffs the possession of the property, and evicting defendant therefrom, and for a cancellation of the lease. That thereafter petitioner filed his notice of appeal

[582]

and made application to the judge of the court, respondent herein, to fix the amount of the bond on appeal, pursuant to section 945 of the Code of Civil Procedure, and for an order directing a stay of execution upon the filing of the bond, pursuant to section 1176 of the Code of Civil Procedure. A hearing was had upon this application and there was testimony to the effect that petitioner, since the trial of the action, had, by unfarmerlike methods, failed properly to irrigate and properly direct the irrigation water over the land seeded to alfalfa; had caused great injury to the land seeded to alfalfa, and to the crops growing thereon; that his work in the way of plowing and reseeding had been of no advantage to himself or the owner; that a portion reseeded in 1920 to alfalfa by the petitioner had failed to produce a fair stand of alfalfa; that the injury done by him to the premises was progressive in its nature, and that the further occupancy of the premises by 'him would be detrimental to the interests of the owners of the land; that a portion of the premises upon which there was a fair stand of alfalfa at the time petitioner entered into possession had been plowed up since the trial of the action, and that this work was of no benefit to the property ; that the methods pursued by petitioner in the cultivation of the premises and the irrigation of the crop, the drainage of the irrigated land, and the care of the premises generally, were unfarmerlike; that upon the trial of said action testimony was adduced by the plaintiffs satisfying the court’s mind that the pasturing of cattle upon said premises while wet was willful; that the field where the principal damage was done had deteriorated from a field which, when petitioner went into possession, produced from five to six tons of alfalfa hay per year, produced not more than one-half a ton to one ton a year, and that principally foxtail; that the evidence on the part of the plaintiff was also, in substance, that petitioner had plowed up certain portions of the land, and plaintiffs had furnished seed twice for the reseeding thereof; that the work so done proved of no value, and no stand was obtained; that upon the third demand being made by petitioner upon plaintiffs, plaintiffs refused to furnish further seed because of petitioner’s unfarmerlike methods and failure to get results.