Buckelew v. Estell (1855) · DecisionDepot

Buckelew v. Estell

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1855Published

Before: Heydenfeldt

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Holding. The court properly refused to dissolve an injunction because the defendants failed to answer, and the complainant is entitled to protection against irreparable damage to his property pending a determination of the boundary dispute.

Issues

Whether an injunction should be dissolved when only some defendants have answered.
Whether a trespasser may challenge the performance of conditions in a land grant.
Whether an injunction is appropriate to prevent tree cutting pending a boundary determination.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The Court very properly refused to dissolve the injunction.”

“the question as to the performance of conditions in the grant can only be made by the' grantor, and not by a mere naked trespasser.”

“The question as to boundary is the only one which is to be determined”

Synopsis

Questions as to the performance of the conditions contained in a grant, can only-be made by the grantor;\and not by a mere naked trespasser.

Heydenfeldt, J., delivered the opinion of the Court. Bryan, J., concurred.

The Court very properly refused to dissolve the injunction. There are several defendants, and only two have answered. The answer admits the grant through which the complainant claims ; the question as to the performance of conditions in the grant can only be made by the' grantor, and not by a mere naked trespasser. The question as to boundary is the only one which is to be determined, and until then, it is proper that complainant should be protected against the serious damage of having his trees cut down, especially as his bond will fully protect the defendants for any delay, if it should turn out that they have the right.

Order affirmed.

Buckelew v. Estell

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