Cramer v. Kester

SEARLS, C. This is an action by Joseph Cramer against F. U. Kester, road overseer of- Cholame road district, in the county of Monterey, to restrain the latter from destroying and removing a fence surrounding premises of the plaintiff. Plaintiff had judgment, from which, and from an order denying a new trial, defendant appeals.

Plaintiff, in his complaint, avers that he is the owner of, in the possession of, and entitled to the possession of the west half of the northwest quarter, section 8, township 24 south, range 13 east, Mount Diablo meridian, situate in the county of Monterey, state of California; that said land is inclosed by a substantial fence, and is valuable for raising crops of vegetables, cereals, and hay; that on November 2, 1891, the board of supervisors of Monterey county, claiming that there was a highway over said tract of land, passed an order directing the road overseer to open, and to keep open, for public travel, such public highway so claimed; that defendant is road overseer, has threatened, and will, unless restrained, tear down the fence, and open, and keep open, said alleged highway. The complaint then negatives the fact that a highway has ever been laid out or erected as a road or highway by order of the board of supervisors of said county, or that it has ever become such by use or dedication, or otherwise. The answer admits the ownership of plaintiff to all the land described in his complaint, except a strip which is defined by courses and distances, being a strip of about forty feet wide across said land, as to which defendant, on information and belief, denies plaintiff is the owner, or entitled to the possession of, and, upon like information and belief, avers it to be a public highway, to which the county of Monterey, a municipal corporation, is entitled to the possession and control of as such. The answer further avers, upon information and belief, that plaintiff will not lose any vested right, and that the said public highway was established upon the land, and that plaintiff and his predecessors acquired the same subject to the said easement, and not otherwise. There are other allegations in the complaint and answer, but they are not important to any question made on appeal. At the trial defendant called the plaintiff as a witness on behalf of the defense, and put to him the following questions: (1) “Does this piece of land described in your complaint belong to you, or your wife?”

[605](2) “Did you ever execute and deliver a deed or other document purporting to convey the land described in your complaint to your wife, after you purchased it from Davis?” Counsel for plaintiff objected to the evidence as incompetent, and not the best evidence. The objections were sustained, exceptions noted, and the rulings are assigned as error. There seem two answers to the contention of appellant: