Burke v. Table Mountain Water Co. & Laforge

California Supreme Court Jan 15, 1859Published

Before: Baldwin

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Holding. The court affirmed a judgment in an ejectment action, holding that the defendant company's failure to deny possession in its answer constituted a conclusive admission, and that the co-defendant was properly discharged upon a finding that he was not in possession.

Issues

Whether the defendant company's failure to deny the allegation of possession in the complaint constitutes a conclusive admission.
Whether the trial court properly admitted secondary evidence of a document after notice to produce was served.
Whether the findings of fact regarding a defendant's lack of possession are binding as res judicata against that defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“What the complaint called the defendant to answer, was not only the character of the possession, but the fact of possession by it, and a failure to deny this averment is an admission of it.”

“The sufficiency of notice to produce a paper shown to be in the possession of a party is a question of discretion”

“The only point adjudged is the fact that Laforge is not in possession, and that result was reached by testimony proper for that purpose.”

Synopsis

Appeal from the Fifth District, County of Calaveras.

This was an action of ejectment to recover the possession of a certain ditch for the conveyance of water for mining purposes.

The complaint sets out the title of plaintiffs, and avers “ that the defendants, the Table Mountain Water Company and A. B. Laforge, well knowing the premises, and well knowing the plaintiffs were the owners of such property, and entitled to the possession and use thereof as aforesaid, have unlawfully, wrongfully, and in violation of the rights of the plaintiffs herein, at all times since the said fifteenth day of March, A. D. 1858, had the possession thereof, and ever since said day wrongfully and unlawfully detained possession of the same from these plaintiffs; and that said defendants do now wrongfully and unlawfully detain the possession,” etc.

This allegation is attempted to be traversed in the answer of the Table Mountain Water Company by the following :

“ The said defendants, the Table Mountain Water Company, for answer to the plaintiffs’ complaint denies that the said Company has unlawfully, wrongfully, and in violation of plaintiffs’ rights, had the possession of the certain ditch, canal or flume described in said plaintiffs’ complaint, and denies that they unlawfully and wrongfully detain the possession of the same.”

The cause was tried in the Court below without a jury, and by the findings of the Court it appears that on the twelfth day of February, 1857, a judgment of foreclosure of mortgage of the premises, in favor of E. A. Rowe v. The Table Mountain Water Company, was duly rendered in the District Court of Calaveras county, and that subsequent the property was sold under the decree; that at such sale, Bowman and plaintiff Hughes became the purchasers, and a deed was duly made by the Sheriff conveying to them the premises; that subsequently Bowman sold and conveyed his interest to the plaintiff Burke.

On the thirty-first of October, 1856, the Table Mountain Water Company leased the premises to the defendant Laforge for the term of five years, and under this lease he entered into possession. On the sixteenth of March, 1858, and before the commencement of this suit, Laforge, by a written contract with the Company, surrendered to them the possession of the ditch. This action was commenced on the twelfth of April, 1858, and the Court finds that plaintiffs were then the owners, and entitled to the possession of the ditch.

On the day of trial, plaintiffs served upon the defendants notice to produce on trial “ the written agreement canceling the lease alleged to have been made between A. B. Laforge and the Table Mountain Water Company—said agreement having been made by A. B. Laforge and the Table Mountain Water Company—or paroi evidence will be given of its contents.” The lease was signed by the individual members of the company, and the agreement surrendering possession is alleged was made to them. The defendants did not produce the agreement, and paroi evidence was admitted on trial of its contents. Plaintiffs had judgment against the Table Mountain Water Company only, no judgment being taken against Laforge. All of the defendants appealed to this Court.

Baldwin, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.

[407]This action of ejectment was brought to recover a'certaip>ditch. One Laforge was a defendant, but no judgment was recovered against him. The complaint charges that the defendant—the Table Mountain Water Company—was in possession. The answer of the company does not deny this averment in any such manner as to put it in issue. The answer denies that this defendant has “ unlawfully, wrongfully, and in violation of plaintiffs’ rights, had the possession,” etc. But this might be perfectly true, and yet the defendant be in the possession. What the complaint called the defendant to answer, was not only the character of the possession, but the fact of possession by it, and a failure to deny this averment is an admission of it. This admission is conclusive evidence of the fact admitted. It is, therefore, immaterial, so far as the company are concerned, whether the Court erred or not in its admission or rejection of evidence in respect to an admitted fact— though we are not satisfied, as will be seen hereafter, that any substantial error was committed, to the injury of the defendants. Laforge was discharged from the suit. The Court found he was not in possession, hence he could not be sued in this action, and was properly discharged ; if he was in possession, the Table Mountain Water Company, having confessed their possession, and not having set up Laforge’s title, or shown any connection with it, judgment was properly rendered against it. But it is argued that error has been committed to the prejudice of Laforge; that though the judgment was for him, yet the predicate of that judgment was the finding that he was not in possession, and had surrendered all his right to the Table Mountain Water Company, or the members of it, and the control of the property; and that this finding was improperly made in this—that paroi evidence was admitted of a certain paper purporting to be an agreement of cancellation of a lease from the company to Laforge. Notice was served on the defendants’ attorneys, on the day of the trial, to produce this paper. It was shown that this paper was that day in the possession of one of the attorneys of defendant. The sufficiency of notice to produce a paper shown to be in the possession of a party is a question of discretion ; and if it were impossible to procure it between the time of giving notice and the trial, that fact should be made to appear. In this instance, it does appear that the paper was present, or in the hands or [408]

Burke v. Table Mountain Water Co. & Laforge

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