Rohrer v. Babcock

GRAY, C.

—This action was brought to obtain a judgment decreeing the estate of John B. Rohrer, deceased, to be the owner of certain hay, and plaintiff to be entitled to the possession thereof. Plaintiff also prayed for and obtained a temporary injunction restraining all interference with said hay pending judgment herein. An appeal was heretofore taken from an order refusing to dissolve said injunction, and said order was affirmed.

(Rohrer v. Babcock,

114 Cal. 124.) Thereafter the ease was tried before the court without a jury, the plaintiff had judgment, and the defendant appeals from the same and from an order denying a new trial.

The hay in controversy was grown, cut, and stacked by defendant on the lands of said estate under a cropping contract theretofore entered into between plaintiff and defendant. The contract provided as to the hay in controversy that the second party to said contract (the appellant here) “will stack in the stackyard on the lower place, the one-half of the second quality hay grown -each year on the said hereby leased premises. . . . . It being, however, mutually agreed that in the event of said first

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party desiring to have her said one-half of said second quality of hay stacked in the stackyard on the upper place .... said second party shall .... haul said one-half .... to said upper stackyards.....The division of hay, to he stacked hereunder, shall be made in the manner hereinafter mutually agreed upon hy the said parties hereto.....That all the property to he delivered hy said second party hereunder to said first party is to he delivered, and division had each year, to the end that there may he a complete settlement each year covered by this lease.”

The contract also provided for the delivery of a share of the other crops grown on the premises to the party of the first part (the respondent herein), and that said first party should place the fences in repair, and furnish material to keep them in repair and to construct any new fences that might he decided upon. The respondent was also to have the right part of the year to the pasturage of a portion of the premises, she to patten dollars a year therefor. Under this contract, in the cropping season of 1895, the appellant stacked one-half the hay referred to in the above stipulations of the contract in the lower stackyard on said premises, and the other half thereof was stacked in another stackyard (presumably the upper one). Some time after the hay had been so stacked, the appellant requested J. B. Bohrer, the son of respondent, to assist in dividing the hay, telling him, according to Bohrer’s testimony, to look the hay over and take his choice between the two yards of hay. Bohrer made measurements and selected the hay in one of the yards as his mother’s share, and informed appellant of such selection. It does not appear from the evidence which yard he selected, hut, looking at the pleadings, I think it sufficiently appears that he selected the hay in the lower stackyard. About ten minutes after this, as appellant was getting ready to leave the place, he pointed out two stacks in the yard selected hy Bohrer and forbid him to touch them, claiming that there was money due him for pasturage under the terms of the lease, and that he proposed to hold those two stacks until he was paid. Thereafter appellant commenced to haul away and feed out these two stacks of hay, whereupon this suit was begun, as we understand it, to determine the ownership and right of pos