Robinson v. Bledsoe

JAMES, J.

Action to have title to certain land, which was secured by purchase from the state, declared to be held in trust for the benefit of plaintiffs as tenants in common with defendant. Plaintiffs had judgment. Defendant’s motion for a new trial was denied, and be appealed from that order and from the judgment.

By the testimony shown in the To ill of exceptions it appears that in the county of Kern, near the border line of San Bernardino County, there is an extensive stretch of arid land which is commonly called the “Mojave River country.” This land has been used by various eatüe owners for from twenty to forty years, and perhaps longer,, as a grazing ground. It has been so used generally with no permission from the owner, except that which is inferable from the fact that no objection has been raised against such use. This ground has no water except by the rain that falls during the winter months. At places, however, which are usually situated many miles apart, water in small quantities comes to the surface of the ground in the form of springs, and at these places the cattle which graze

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over the common range drink. About the watering places once or twice each year rodeos have been held. At these times the different cattle owners were given notice of the holding of the rodeo and they attended for the purpose of separating their cattle from the common herd. The calves were then branded and any unidentified or unclaimed animals, called “mavericks,” were turned over to the cattle man who had the rodeo in charge, as his perquisites. Customarily some of the cattle raisers would erect inclosures and frame structures at these watering places and in that case they, by consent of their fellows, were deemed to be in authority at the round-ups. In general, between the times when the round-ups were held, none of the cattle men resided at the watering places, but lived elsewhere, and no ownership in the land over which the cattle grazed appears to have been asserted by the owners of the herds.

For many years prior to 1893 one Durnal had grazed his cattle over that desert range. He made his headquarters at Flowing Wells, which was the name of a watering place and not a town. At this place, scattered over about two acres of ground, were eight or nine springs of water. In order to make the water better available for supplying the cattle, a square wooden pipe of about four by four inches in dimensions was made by nailing four boards together. One length of this pipe was thrust down into the spring and by that means the water was raised above the surface of the ground and conducted into a trough. Durnal built a rough lumber barn with a shake roof, also a small cabin, about a mile from the wells, and at another point several miles distant he had a stock corral, a second cabin, and a pump. His place of residence was at Tehachapi. In the year mentioned, one Downey, on behalf of himself, W. E. Boren, plaintiff W. H. Robinson, and the defendant Bledsoe, purchased from Durnal for the sum of one hundred and fifty dollars all of the improvements which he had placed at Flowing Wells, and also similar property at other points. Each of the persons mentioned were cattle raisers who resided along the Mojave River many miles away. From thence on the four men used Flowing Wells for rodeo purposes. They shared together the use of the improvements, but they had no joint interest in cattle, as each man severally owned and managed his herd. They