Dowling v. Spring Valley Water Co.

MELVIN, J.

J. J. Dowling filed a hill in equity by which he sought to have the court set aside in part a decree quieting the title of the Spring Valley Water Company to certain land in San Francisco pursuant to a proceeding under the statute commonly known as the “MeEnerney Act.” A general demurrer to the second amended complaint was sustained and judgment was entered for defendants. From said judgment plaintiff appeals.

Among the allegations made by appellant in the second amended complaint are in substance the following ones: That from December 30, 1910, to July 14, 1911, and up to the time of a certain execution sale, one Alla J. Tyler was the owner in fee of the property in dispute; that by reason of certain street work performed by plaintiff as a contractor, after due authorization, he acquired a lien on said property amounting to $6.08; that on January 21, 1907, plaintiff began a suit against Alla J. Tyler to foreclose said lien, resulting in a judgment in his favor for $33.38 made a lien on the property; that execution issued; that plaintiff became the purchaser of the property at the sheriff’s sale; that since October 9, 1911, the date of said sale, plaintiff has owned the land in fee and has been in peaceable possession thereof; that on December 30, 1910, the Spring Valley Water Company commenced its action under the “MeEnerney Act” to quiet its title to certain land embracing the lot to which plaintiff here asserts title; that this complaint was verified and alleged the peaceable possession by the Spring Valley Water Company and the ownership by that company of the land described in its pleading; and that a

lis pendens

was filed ac

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cording to law. There were lengthy quotations in the second amended complaint herein from the affidavit accompanying the complaint in the “McEnerney” suit, which we need not reproduce here. It is sufficient to say that apparently this affidavit fulfilled the requirements of the statute. There is also an averment that pursuant to order of court summons was published, but that neither by the affidavit nor in the publication of summons did it appear that Alla J. Tyler claimed any interest in the property. Plaintiff also stated that he had no notice or knowledge of the pendency of the water company’s action, and upon information and belief he alleged similar lack of knowledge on the part of Alla J. Tyler, and also upon information and belief that if she had possessed knowledge or notice thereof she would have appeared and established her ownership of the property. There were allegations that at the trial of the water company’s suit an officer of that corporation swore that it was the owner of all of the property, title to which was involved in the action, and that said testimony was false because there were then of record in the city and county recorder’s office instruments showing Alla J. Tyler to be the owner in fee of all the property claimed by plaintiff as her successor in interest. Certain allegations contained in the affidavit, complaint, and the testimony in the water company’s suit were upon information and belief specified as false and known to be untrue by that corporation. The Union Trust. Company of San Francisco was made a party because of a lien of a general mortgage to said defendant by the water company. There were also averments that the assessment-rolls from 1905 to the date of the action were not destroyed; that those records showed the assessment of this land to Alla J. Tyler for 1905, 1906, 1907, and 1908, and that for 1909, 1910, and 1911 it was assessed to “Alla J. Taylor.” There was a further assertion that Spring Valley Water Company had paid no taxes on this parcel of land from 1905 to 1911, inclusive. The prayer of plaintiff was to have the decree in the action to quiet title set aside, or if that could not be done that the Spring Valley Water Company be adjudged a trustee for plaintiff and be compelled to convey to him, freed of the mortgage of the Union Trust Company, the land to which he asserts title.