Hungarian Hill Gravel Mining Co. v. Moses

California Supreme Court Jul 1, 1881 No. No. 7,586Published

Before: Myrick

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Holding. The court affirmed the judgment regarding the merits of the property dispute but remanded the case with instructions to strike the portion of the decree granting affirmative relief, as the defendants' answer lacked a cross-complaint or prayer for such relief.

Issues

Whether the bill of exceptions was filed in a timely manner.
Whether the insufficiency of evidence and defects in findings can be reviewed via a bill of exceptions rather than a motion for a new trial.
Whether the trial court erred in granting affirmative relief to the defendants when the answer contained no cross-complaint or prayer for such relief.

Disposition. remanded

Quotations verified verbatim against the opinion

“The answer of the defendants contained none of the elements of a cross-complaint, as distinguished from a defense to plaintiff’s action, and contained no prayer for affirmative relief. That part of the decree awarding affirmative relief should be stricken out.”

“The cause is remanded to the Court below, with instructions to strike out of the decree the affirmative relief, being the clause above marked with quotations, and in all other respects the judgment is affirmed.”

Synopsis

Water Right—-Mortgage—Improvements of Mortgaged Premises— Appurtenances.—G., being the owner'of certain mining claims known as the “Kelly & Co. Claims,” and of certain ditches and water rights appurtenant, mortgaged the same to the defendants. At the date of the mortgage, G. owned a ditch known as the “Kelly Ditch,” by which the waters of Gansner Creek were conducted to his land, but he afterwards constructed a new ditch on a higher level, and also a reservoir on his claim, to be used in connection therewith, and abandoned the old ditch and suffered it to fall out of repair. Atfterwards he conveyed to the plaintiff his claims—with an adjoining one that he had purchased—together with the new ditch and all water rights appurtenant; the deed providing that the conveyance was made subject to the mortgage of G. to the defendants. The defendants subsequently purchased the mortgaged premises at the foreclosure sale in an action brought against G. and the plaintiff to foreclose the mortgage. In an action by the plaintiff to quiet its title to the new ditch and reservoir, and the water rights used and connected with the same.

Held: The construction of the new ditch and reservoir was for the purpose of employing to better advantage the use of the water rights covered by the mortgage, and they passed by the foreclosure sale to the defendant.

Action to Quiet Title—Answer—Pleading—Judgment.—In an action to quiet title, where the answer consists of denials of the plaintiff’s allegations, and contains none of the elements of a cross-complaint, as distinguished from a defense to the plaintiff’s action, and contains no prayer for affirmative relief, it is error for the decree to award affirmative relief.

Myrick, J.: 1. This case comes to us on appeal from the judgment rendered in favor of defendants against the plaintiff. A bill of exceptions appears in the transcript. The case was tried by the Court, and the findings were filed and judgment entered August 17th, 1880; the plaintiff served and filed a notice of appeal August 25th, 1880, and filed an undertaking on appeal August 27th, 1880. No order was made extending the time for preparing a draft of bill of exceptions. On the 14th of September, 1880, plaintiff’s proposed bill of exceptions was served on defendant’s attorney; November 10th, 1880, defendant’s attorney admitted service of an amended bill of exceptions; November 12th, 1880, the Judge, settled [175]and certified the bill, and on the loth of December the cleric certified the transcript. When the proposed bill and the amended bill were served, no objection was made that they were not, respectively, in time.

Objection is made by the respondents, that the bill was not in time, and should be disregarded, and the case considered only on the judgment roll.

2. The bill of exceptions is a statement of the evidence in the case, and contains but one note of exception, and that is to the admitting in evidence of a certificate of sale and the Sheriff’s deed. No error appears in the ruling of the Court admitting them in evidence. At the foot of the bill of exceptions are eighteen assignments of error, all relating to the findings—some specifying certain findings as not supported by the evidence, others specifying findings as contrary to the evidence, others stating that the findings embrace matters not in issue, and others that some of the issues are not covered by the findings.

Objection is made, that all the matters above referred to, except the exception noted, are matters to be considered only • on motion for new trial, and appeal from the ruling thereon, and should be thus brought here by statement, and not by bill of exceptions; that insufficiency of the evidence to sustain the decision, and other defects in the findings, not especially excepted to at the time, can not be the subject of a bill of exceptions, under §§ 646 and 657, Code of Civil Procedure.

8. We have examined the case as presented by the pleadings and findings and by the bill of exceptions, and see no error other than that hereinafter noted. The evidence is consistent with the theory that plaintiff, in constructing the Gurnee Mill Creek Ditch and the reservoirs connected therewith, and in using the same for conveying water, did not acquire any water rights other than those embraced in the mortgage, by the foreclosure of which the defendants acquired their title; that the construction of said ditch was for the purpose of employing to better advantage the use of the water rights covered by the mortgage; and the findings are based upon that theory. Either that theory is correct, or the transaction was an attempt to divert the waters from the ditch covered by the mortgage and leave the ditch without

Hungarian Hill Gravel Mining Co. v. Moses

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