In Weyl v. Sonoma Valley Railroad Co., 69 Cal. 202, 10 Pac. 510, the respondent made objection to the notice of appeal for the reason that the notice did not give the correct date of the entry of the judgment and order denying a new trial from which the appeal was sought to be prosecuted.Summary of this case from Paul v. Cragnaz
Appeal from a judgment of the Superior Court of Sonoma County, and from an order refusing a new trial.
E. S. Lippett, for Appellants.
George A. Johnston, for Respondent.
JUDGES: Foote, C. Belcher, C. C., and Searls, C., concurred.
[10 P. 511] The transcript in this cause being very defective was made intelligible by stipulation between counsel on both sides, and by a certificate of the clerk of the court below filed in this court under rule 12.
The respondent makes the point that the appeal is not well taken, and should not be considered, for the reason that the notice of appeal does not give the correct date of the entry of the judgment and order denying a new trial, from which the appeal is sought to be prosecuted.
The object of such a notice is to impart the requisite information to the opposite party of his opponent's intention to appeal, and what specific judgment or order is appealed from, and if the notice is sufficiently explicit in these particulars it should be declared sufficient.
The notice of appeal under consideration correctly states the title of the cause, and only fails of being sufficient in all other respects, as is admitted by the respondent, because it incorrectly gives the date at which the judgment and order appealed from were entered; it also appears by the record that there has been but one judgment or order of the kind appealed from entered in the cause.
From this it would appear that the said notice ought not to be declared void, but the mistake of dates merely should be regarded in this case as a clerical misprision.
The exception that the decision in this case is not supported by the evidence, we cannot review on the appeal from the final judgment, because the former was not taken within sixty days from the rendition of the latter. ( Code Civ. Proc., sec. 939.)
The motion for a new trial was made upon the minutes of the court, and the [10 P. 512] ground taken therein, that the findings and decision in the cause were not justified by the evidence, is not tenable, and the motion was properly denied, as the notice of motion did not contain any specifications of particulars wherein the evidence was alleged not to sustain said findings and decision. ( Code Civ. Proc., sec. 659, subd. 4; Eddelbuttel v. Durrell , 55 Cal. 277.)
Appellants claim further, that the court should have dismissed the action as to Mr. Donahue, that a demurrer filed to the complaint should have been sustained, and that the findings do not support the judgment.
The action was ejectment, to recover from the defendants, the Sonoma Valley Railroad Company and Peter Donahue, the possession of the north half of Spain Street, extending for 350 feet in front of and adjoining lot 27 and part of lot 28 in the town of Sonoma, in Sonoma County, California, subject only to the easement of the public to use it as a street.
It is claimed that in the complaint it did not properly appear how Mr. Donahue was jointly or severally interested with the railroad company, defendant, in the acts complained of. That the complaint did not state facts sufficient to constitute a cause of action, and that it was uncertain in not making it to appear whether the plaintiff sued the defendants for obstructing a highway or for damage to private property by reason of such obstruction.
It is not doubtful for what purpose the suit was brought; it was to recover in ejectment the premises sued for, and damages for its unlawful withholding by the defendants.
Mr. Donahue was properly joined as a party defendant as to all the acts complained of by the plaintiff, and there is nothing in the transcript which discloses any error on the part of the court in not dismissing the action as to him.
The complaint alleged ownership in fee by the plaintiff to the premises in controversy, and that while he was so seised and possessed he was ejected and ousted therefrom by the defendants, who have from that date, the 31st of January, 1882, withheld the possession thereof from him. Restitution of the premises and damages for its detention are prayed for.
But the appellants contend that, inasmuch as the plaintiff has alleged title and right of possession to the premises, subject to the easement of the public to the use thereof as a street, that he has mistaken his remedy. That as against the defendants, a steam railroad corporation and Peter Donahue, operating their road over the street, such an action will not lie, although perhaps one for damages might be maintained, as the injury was especial in its nature.
And it is further urged by the defendants that, as the public had the right to use the street in common with the plaintiff, that although the fee of it might be in him, the exclusive right of possession thereto had never been nor could be.
There is no dispute about the fact that the plaintiff's lots were bounded by Spain Street in the former pueblo, and are now bounded thereby in the present town of Sonoma.
By section 831, Civil Code, [10 P. 513] the owner of land bounded by a road or street is presumed to own to the center of the way, unless the contrary be shown. And if it is described in a deed as so bounded, it will be considered as extending to the center of the street or road, unless a contrary intention is shown. ( Civ. Code, sec. 1112; Code Civ. Proc., sec. 2077, subd. 4-6; Moody v. Palmer , 50 Cal. 31; Kittle v. Pfeiffer , 22 Cal. 484; Webber v. California and Oregon R. R. Co ., 51 Cal. 425.)
And in Coburn v. Ames , 52 Cal. 385, it was held that the owner of the fee in land, subject to the easement over the same for a public highway, may maintain ejectment for it as against an intruder.
But the appellants allege that section 465, Civil Code, subdivision 5, gives them the absolute right to use the street for the purpose of running their steam railroad over it; that section 470, Civil Code, only restricts such user in a case where it has not been granted by the city authorities over some street in its corporate limits, and that the town of Sonoma was not incorporated at the time the street was taken possession of by them, as shown by the complaint.
The state constitution provides, however, that private property cannot be taken or damaged for any public use, save upon compensation first made, etc. And no right of way over a street is allowed for the use of any other than a municipal corporation, save upon compensation ascertained by a jury, etc. (Const. Cal., sec. 14.) The procedure to accomplish which must be in accordance with section 1248, Code Civ. Proc. We cannot agree to the rightfulness of defendant's contention that a different rule should prevail with respect to the ownership of a street up to its center, or thread, on which one's lot abuts, where sales of Sonoma pueblo lands have been made by the commissioners authorized so to do, from sales of lands made by other persons. (Stats. 1867-8, p. 578.) The demurrer was, we think, properly overruled.
And the findings which, among other things, declare the plaintiff to be the owner of the fee and entitled to the possession of the lots on Spain Street in the town of Sonoma, and of the said street in front of said lots to its center, and that defendants took possession of said street unlawfully, and without any grant or permission from the board of supervisors of Sonoma County, and ejected and ousted plaintiff therefrom on January 31, 1882, and have so continued to do, support the judgment.
The judgment and order denying defendants a new trial should be affirmed.
The Court. -- For the reasons given in the foregoing opinion the judgment and order are affirmed.