BEATTY, C. J., dissenting.
I dissent. The principal question decided by the court relates to the construction of the proviso in section 5 of article VI of the constitution, requiring certain actions to be commenced in the county where the real property to be affected is situate. This is a question which, in my opinion, could not be raised by either party to the present or to the former appeal herein, each of said appeals being from an order refusing to change the place of trial of the action. The appellant could not very consistently ask the court to reverse an order upon the ground that the superior court had no jurisdiction to consider its own motion, and the respondent was not likely to ask an affirmance of the order upon a ground which would involve a dismissal of its action. The court could, however,—as on this second appeal the Department did,—consider the point when suggested, and, disregarding the alleged errors of the superior court in ruling upon the motion, direct a dismissal of the action if it appeared upon an inspection of the pleadings that the court in which it was commenced had no jurisdiction to entertain it.
[139]
The further consideration which I have given to the case since the rehearing was ordered has convinced me that the conclusion reached by the Department was correct, though it has at the same time confirmed me in the opinion that upon one important point the decision was erroneous. It was said at the close of the Department opinion that the question of jurisdiction, although involved in the present appeal, could not have arisen upon the former appeal
(Miller & Lux
v.
Kern County Land Co.,
134 Cal. 586), the meaning of the court and the effect of the decision being, that the complaint in this case, when filed, did not disclose a want of jurisdiction in the superior court of San Francisco, although it tendered an issue of title to realty in Kern, but that the want, of jurisdiction did appear upon the' filing of an answer denying title, from which it was concluded that it then became the duty of the superior court to dismiss the action. This view appeared to me to be untenable, and such is now the final decision of the court in Bank. It is held that if a complaint when filed does not show that the title alleged by the plaintiff is disputed by the defendant, the filing of an answer denying the asserted title does not bring the case within the proviso above quoted, which by its terms merely prohibits the
commencement
of certain actions in certain counties. So far as the effect of a denial in the answer is concerned, I do not dissent from the proposition. If the complaint shows that the action is
commenced
in a proper county, I do not think anything alleged in the answer could justify the conclusion that the action was not properly commenced. But I differ with the court as to the nature of the action disclosed by the complaint. I think that within the principle of the decision in the two cases cited by Justice Angellotti
(Fritts
v.
Camp,
94 Cal. 393, and
Pacific Yacht Club
v.
Sausalito Bay Water Co.,
98 Cal. 487) the complaint herein showed on its face that the action was one to quiet title. It is true that in those cases the opinions went expressly cn the ground that the complaints showed a disputed title, and in the latter it was said
obiter
that a complaint lacking this feature would not be within the proviso. Yet it was held at the same time that, in order to bring a case within the proviso, it was not necessary that the object of the action should be a decree quieting title to realty, but only that it should appear
[140]
from the complaint that the effect of a judgment for plaintiff would he to quiet his title, although no such judgment was asked and none such could be rendered. If this principle was established by those decisions,—as it clearly seems to have been,—it follows that whenever ope of the material allegations of the complaint is title to realty, when, in other words, a judgment for plaintiff could not be supported without an affirmative finding or an admission of the title alleged, the action must be held to be an action to quiet title within the meaning of the constitution. For the admission or finding of title will necessarily raise as complete an estoppel against the defendant as could possibly have resulted from any judgment for plaintiff in
Fritts
v.
Camp,
or
Pacific Yacht Club
v.
Sausalito Bay Water Co.
The possibility in such case that the defendant may not deny the allegation of title can make no difference, for in an action expressly designed to quiet title the defendant may disclaim, and yet no one would contend that the possibility, or even the fact, of such disclaimer would empower the superior court of San Francisco to proceed in an action commenced there for the purpose of quieting title to realty situated in Kern. I think the action was improperly commenced in San Francisco, and should be dismissed. To hold otherwise is to concede the power of any person desiring to quiet title to real property against the adverse claims of a corporation to set at naught the mandate of the constitution by the simple device of suing in form for damages or for an injunction and suppressing the fact that the title which he must establish in order to recover is disputed by the defendant. I do not think the constitution is of so little efficacy as this conclusion would imply.
But conceding, as I must, under the decision of the court, that the action was properly commenced in San Francisco, I think that when it appeared by the answer that the question to be litigated was an adverse claim of title to realty situated in Kern County, that circumstance should have been allowed controlling weight in determining the right to a change of the place of trial, in the absence of a very strcrag showing that the convenience of witnesses and the interests of justice would be promoted by a trial in San Francisco. Títere was no such
[141]
showing. "On the contrary,—as was to be expected in view of the issues to be tried,—there was a. decided preponderance of evidence to the effect that, for the convenience of witnesses and the saving of expense, the case should be tried in Kern.
It is a peculiar feature of this ease that, prior to the commencement of this action in San Francisco, the plaintiff had commenced another action in Kern County to quiet its title to the same easement which is here alleged as the basis of its claim for damages. The pendency of that action in Kern County was made one of the grounds of the application for a change of the place of trial. To meet this ground of the motion plaintiff offered to stipulate that the action so properly commenced in Kern County might be transferred to San Francisco for trial. I cannot agree with the court as to the effect of this offer. So far from being a concession to the defendant, it was merely a proposition that it should surrender an undoubted constitutional right in order to insure its deprivation of a statutory right.
Upon the whole case I cannot think it was a proper exercise of discretion to overrule defendant’s motion.
Rehearing denied.