Christy v. Spring Valley Water Works

McKee, J. — Appeal from a judgment for defendant, and an order denying a motion for a new trial in an action of ejectment tried by the court without a jury.

The motion was heard and decided upon a statement of the case proposed, amended, settled, and certified as required by subdivision 3 of section 659, Code of Civil Procedure. The grounds of the motion were: 1. Insufficiency of the evidence to justify the decision; 2. The decision is against law; 3. Errors of law; and the statement contained specifications of the particulars in which the evidence was alleged to be insufficient, and of the particular errors of law upon which the moving party intended to rely.

Neither at the settlement of the statement nor at the submission of the motion was any objection made to any irregularity in the proceeding on the motion. The motion was contested and submitted for decision without object[74]ing or reserving any right to object that the notice of the motion was not made or given according to law. Such being the case, the attorney of the corporation defendant waived any supposable irregularity in the notice of the motion of which he now in this court for the first time seeks to avail himself.

The case, as disclosed by the statement, is an action of ejectment to recover possession of four parcels of land situate in the city and county of San Francisco, and described as parts of outside land, blocks Nos. 774, 775, 858, and 867. At the commencement of the action the Spring Valley Water Works was in possession of the lands claiming to be seised in fee thereof, and that the plaintiff’s right of action was barred by the statute of limitations.

The plaintiff’s right of action is founded upon mesne conveyances of the property from one Kobert S. Kandall, to whom the property had been finally adjudged in severalty on the 23d of December, 1875, in an action between himself and the Spring Valley Water Works and others for the partition between them, as tenants in common, of a tract of land described as “ that certain tract of land situated in the city and county of San Francisco and state of California, known as and being the southeast quarter of section 13, township 2 South, range 6 west, according to the United States survey of the state of California, and being more specifically and particularly described, as the same is delineated and shown on the map of the outside lands of the city and county of San Francisco, made under and by virtue of the provisions of order No. 800, as follows, to wit: All those certain blocks of land lying westerly of the San Miguel rancho, and numbered respectively 853, 854, 855, 856, 857, 868, 869, 870, 871, 872, 945, 946, 947, 948, 949; also so much of each of the following numbered blocks of land as lies within the fences inclosing said tract of land, erected by William Winter, John Kern, and others about the year 1861, to wit: Blocks Nos. 775, 776, 777, 778, 779, 780,