Avery v. Superior Court

Morrison, C. J.: This is an application for a writ of mandamus to compel the Court below to proceed with the trial of the case of Avery v. The Blade Diamond Coal Mining Company. It appears from the petition and answer, that on the 10th day of August, 1871, an action was brought by Avery against the Black Diamond Coal Mining Company, for the recovery of a certain tract of land, situate in the County of Contra Costa, described as the north half of section 8, township 1 north, range 1 east, Mount Diablo meridian; and such proceedings were had, that plaintiff obtained a judgment in said action on the 1st day of April, 1873. From that judgment an appeal was taken to the Supreme Court, and on the 16th day of January, 1877, the judgment of the Court below was affirmed. On the 11th day of July, 1877, plaintiff commenced an action to recover damages which he had sustained by reason of the withholding of the possession of the premises by the defendant, and the taking from said land of coal, and for waste committed thereupon. In that action issue was joined, and plaintiff proceeded to take testimony de bene esse. On the 10th day of June, 1878, the District Court granted an order requiring plaintiff to show cause why all further proceedings in the action to recover mesne profits should not be stayed until the further order of the Court, or until a certain cause then pending in the Circuit Court of the United States for the Ninth Circuit, District of California, wherein the United States is plaintiff and Francis Avery and one John Mullan are defendants, is tried and decided. (The foregoing is a suit to annul the patent under which Avery derives- title, and upon which his recovery was [249]had in the case brought by him against the Black Diamond Coal Mining Company, referred to above.) On the 16th day of September, 1878, the Court below ordered that all further proceedings in the action brought by Avery against the Black Diamond Coal Mining Company be stayed, until the cause pending in the Circuit Court of the United States be tried and determined, or until the further order of the Court. The said cause has stood upon the calendar of the Court from term to term, and the plaintiff has answered ready when the same has been called, but the Court has refused to try the case, or to allow the plaintiff to proceed therein.

It is claimed, in the suit brought in the Circuit Court of the United States, that the patent under which Avery derives title, and upon which he recovered in the action brought by him against the Black Diamond Coal Mining Company, is void. But we cannot perceive how an adjudication to that effect can affect Avery’s right to a recovery in his action for mesne profits. The title to the land was put in issue in the pleadings, and the judgment in the action of ejectment established Avery’s title to the land, and the right to recover the rent is a legal consequence of the judgment establishing his title. ( Caperton v. Schmidt, 26 Cal. 476; Doyle v. Franklin, 40 id. 106; Byers v. Neal, 43 id. 210.)