Moulton v. Parks

McKinstry, J. In his complaint plaintiff alleges “that he is ignorant of the true names of the defendants above designated as John Doe and Richard Roe, and therefore has thus designated them, and prays that when their true names are discovered the pleadings and proceedings herein may be amended by inserting such names in the place and stead of the names herein used to designate such defendants.”

The “ defendants ” filed an answer.

The record does not show that the true names of the defendants designated in the complaint as John Doe and Richard Roe have been discovered, nor have the pleadings and proceedings herein been amended by substituting any names for the fictitious names. Did the complaint not show that the names John Doe and Richard Roe were fictitious names, we might hold perhaps that the persons, whomsoever they were, who appeared and answered as John Doe and Richard Roe were .bound by the judgment—they having failed to plead the misnomer or to respond in their real names to the allegations made against them. But as the record reads we construe the answer to be the answer of those of the defendants sued by their proper names, to wit: W. H. Parks, Eli Davis, W. H. Perdue, A. B. Van Arsdale, G. W. Santee, George Ohyler, and James T. Leary, and the injunction as operative only against such persons, their servants, etc.

[168]The complaint was filed January 13, 1875.

. It avers that the plaintiff now is, and for more than two years last past has been, the owner and in possession of a tract of land containing one hundred and fifty-eight acres, situated in the county of Colusa, which tract is specifically described; that the land has been held and possessed by plaintiff for farming, grazing, and fruit-growing purposes, and is of the value of five thousand dollars for such purposes; that plaintiff has and for more than a year past has had on said land a dwelling-house, usually occupied by- plaintiff’s tenants and employees, about one half mile of fence, a well, corrals, and an orchard of fruit-bearing trees of the value of eight hundred dollars.

The foregoing allegations of the complaint are denied by the answer, but the court below found them to be true, and the evidence is not before us.

The complaint further avers' that plaintiff’s land is situated between Butte Creek and the Sacramento Biver, above where Butte Slough puts out of said river; that said slough puts out of said river below plaintiff’s land, less than a mile therefrom, and running in a southeasterly direction to the mouth of Butte Creek, flows thence in a southerly direction to and into said river, at a point more than twenty miles south of and below plaintiff’s land; that Butte Creek rises and has its source more than forty miles northeast of plaintiff’s land, and flows in a southwesterly direction and into Butte Slóugh at a point on said slough about two and one half miles southeast from plaintiff’s land; that Butte Creek and Butte Slough, from their point of confluence with each other, and the said Butte Creek from a point at least twenty miles northeast of plaintiff’s land, to such confluence, flow through a basin of low land, which basin is bounded on the west by a strip of high land from one to three miles in width, extending along the east bank of the Sacramento Biver from a point on said river about thirty miles above and north of where said Butte Slough puts out of said river to a point where said slough enters said river, and on the east by the high lands adjacent to the Butte Mountains, and the high lands along the west bank of the Feather Biver —which said basin . has an average width of about two miles; that during the winter and spring months in each and every year large quantities