Murr v. Cohn

STURTEVANT, J.

The plaintiffs commenced an action against the defendant to quiet title to certain personal property. The defendant answered and a trial was had in the trial court before the court sitting without a jury. The trial court made findings in favor of the plaintiffs and the defendant has appealed.

The defendant owned lots 18 and 19 in Block “K” of the city of Oxnard. He leased the lots to the plaintiffs for a period of five years. At that time the lots were wholly vacant. When the plaintiffs entered into possession they placed on the property “one field portable gasoline station, one gasoline air pump, and one gas tank.” The station was put in place by laying pieces of 2x4, making a rectangular frame and resting it on the surface of the ground. Thereafter concrete was poured into that frame, covering the space of ground inclosed with concrete four inches deep. The station was set on top, the outside walls of steel rested on the 2x4 and were nailed thereto. The pump was placed on a concrete pier, which was also constructed on top of the surface of the ground. The tank was sunk into the ground about seven feet deep. After the plaintiffs had been in possession they negotiated a sale of the three items mentioned to T. E. Davis. Later the defendant asserted that the several items had become a part of the realty and he had become the owner thereof.

On this appeal the defendant makes six several attacks on the findings, claiming that they are not sustained by the evidence. The first two attacks are addressed to two findings that are entirely without the issues made by the

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pleadings. The third and fifth attacks are addressed to the findings in response to the allegations of the complaint which are to the effect that the plaintiff is the owner of the property and the defendant asserts a claim that is without right. The fourth and sixth attacks are addressed to the allegations of the defendant’s answer, in which he pleaded affirmatively title in himself. As the answer contained denials, it was unnecessary for the defendant to put in the affirmative allegations and findings thereon are immaterial. If the third and fourth attacks are not well founded the judgment should be affirmed. As the rights and liabilities of both parties rest on the relation - of landlord and tenant, it is equally clear that if the plaintiffs were the owners then the defendant was not the owner and therefore it becomes necessary to consider only the third attack, which is the contention that the fifth finding is not sustained by the evidence. That finding is the one which finds that the plaintiffs were the owners of the property.