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[1] In the first place, the findings of the fendant was held by the government of the court are not such as to establish facts in United States up to the year 1903, when a support of the claim that the right of way patent was issued by which such title was existed in Agoure's favor as of necessity. | divested. Since the year 1903, the evidence The only suggestion in that direction is the showed that this roadway had been plowed statement in the findings that the roadway over and grain had grown up at times in "is necessary to the reasonable enjoyment the tracks. There was testimony for the deand use of plaintiff's said lands." It is well fendant, which was uncontradicted, that hay. established that a right of way by necessity stacks had been placed across the roadway can only be claimed and held where it fur- subsequent to the year 1903. The period innishes the only way by which access may be cluded within that which will give title by had to the property of the claimant.

adverse possession cannot commence to run "The right of way from necessity must be in at any time as against the ownership of the fact what the term naturally imports, and can

United States or of the state. O'Connor y. not exist except in cases of strict necessity. It will not exist where a man can get to his prop

Fogle, 63 Cal. 11. So, under the facts diserty through his own land. That the way over closed by the record, no claim by adverse his own land is too steep or too narrow, or that user could have been raised prior to the year other and like difficulties exist, does not alter the case, and it is only where there is no way

1903, nor until five years had elapsed after through his own land that a grantee can claim issuance of patent to the defendant's land. a right over that of his grantor. It must also During this latter period, we think the evi. appear that the grantee has no other way." Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879.

deuce clearly shows that the use which

Agoure made of the right of way was not The relation of grantor and grantee did

continuous and uninterrupted; it was more not exist as between Agoure and this defend

in the nature of a user by permission. ant, but even though such had been their

[5] The country there was largely open and relation, the facts found by the court do not

uncultivated. It was hilly land, as above establish the most material thing, to wit,

stated, and persons generally having occasion that the plaintiff could not obtain access to

to travel in that region adopted whatever his property except by use of the right of way

route might appear to be the shortest, which claimed. Turning to the evidence, we find

they were allowed to do as a matter of acthat the facts shown do not establish any

commodation by the landowners. The de such condition. It appears that for many

fendant could hardly have been placed upon years prior to the year 1903, Agoure and other persons had driven across the land

notice, under the circumstances, that Agoure! now owned by the defendant in order to reach

expected, because of the permission accorded a certain tract composed of 15,000 acres held

him, to base a claim to easement rights in by 'Agoure. All of this land was in a hilly

the roadway, for his general conduct was not region and it was more convenient for such as to indicate his determination so to Agoure to cross the land of defendant and do. If he had intended to insist upon such the former occupants thereof than it was to a claim, his acts, as they are generally de travel in a different direction. There was scribed by the testimony, and considering the direct testimony of a hill route leading out practice adopted by travelers in that sparsely from Agoure's land to the county road, which, settled country, do not sufficiently so indihowever, it was stated was so rough as to cate. On this point, see Clarke v. Clarke, make it difficult to transport any load there- / 133 Cal. 670, 66 Pac. 10. across. But it was nowhere shown that by

The judgment and order are reversed. the expenditure of some money and laborperhaps a considerable amount of both-this

We concur: CONREY, P. J.; SHAW, J. hill route could not have been converted into a roadway of practicable grade and width. So it is very clear that no ground existed upon which Agoure or the plaintiff could COMMINS V. GUARANTY OIL CO. assert legal necessity for the right of way

(Civ. 1762.) as claimed.

(District Court of Appeal, Second District, Cal. [2,3] It appears that the plaintiff relied |

ifornia. Dec. 8, 1915. Rehearing Denied further, and the trial judge evidently sus by Supreme Court Feb. 5, 1916.) tained his claim in that regard, upon the | 1. APPEAL AND ERROR 123_"FINAL JUDGfact that he had made use of the road for! MENT''-ESSENTIALS. a long period of years. The court found that A judgment of nonsuit for plaintiff's failthe right of way had been used for a period ure to prove a sufficient case, when entered in

the court's minutes, need not be followed by a of more than five years prior to the com

judgment of dismissal to make it a "final judgmencement of the action. Easement rights ment," within Code Civ. Proc. § 939, providing may be so acquired, but where they are as- for appeals, for such a judgment of nonsuit in serted the party claiming them must prove

itself constitutes a dismissal of the action, under

Code Civ. Proc. $ 581, subd, 5, providing for an uninterrupted use of the right of way.

terrupted use of the right of way. I dismissal of actions or entry of nonsuits and [4] Title to the land now owned by the de- ! directing that a dismissal when entered upon the 123.

court's minutes upon plaintiff's failure to prove In the case of Kimple v. Conway, 69 Cal. a sufficient case is effective for all purposes. I | 71, 10 Pac. 189, it was held that no appeal _[Ed. Note.-For other cases, see Appeal and

was allowed from an order granting a moError, Cent. Dig. 88 875-881; Dec. Dig. Om

tion for a nonsuit, nor from a judgment of For other definitions, see Words and Phrases,

nonsuit. In that case, however, it was not First and Second Series, Final Judgment.] finally aflirmed that a judgment of nonsuit 2. LANDLORD AND TENANT 130-COVENANT might not, by being entered in the judgment OF QUIET PosseSSION-BREACH.

book, become a final judgment from which Where a lessee relies upon an agreement in

an appeal might be taken. However, at the the lease that the lessor will protect him against any claims arising as to the ownership of the

time that decision was rendered section 581 premises which the lessor holds under a contract did not contain the provision which was inof purchase, and no misrepresentations are serted in 1897 making an entry upon the shown to have been made by the lessor as to the nature of his title the commencement of a suit | minutes of the court of the orders or jude. by the owner of the paramount title to quiet its ments sufficient for all purposes. It would title as against the contract of purchase because seem under the present state of the law that of default in payment of installments does not constitute an eviction of the lessee, that operates

none of the orders or judgments provided as a breach of the covenant of quiet possession. to be made by section 581, Code of Civil Pro

[Ed. Note.--For other cases, see Landlord and cedure, need be entered in the judgment book Tenant, Cent. Dig. 88 470-481; Dec. Dig. Om at all or appear in any record except that 130.)

containing the minutes of the court. This 3. MINES AND MINERALS m56 – LEASE

conclusion is sustained by the decisions of FORM-DESIGNATION BY PARTIES. An agreement between the holder of land

Matthai v. Kennedy, 148 Cal. 699, 84 Pac. under a contract of purchase and a second par-37, and Pacific Paving Co. v. Vizelich. 141 ty, providing that the second party shall take Cal. 4, 74 Pac. 352. We do not believe that possession of the land and develop oil thereon, la formal judgment of dismissal must follow rendering to the other a portion of the product in payment of its use, is a lease, irrespective of

Ulease, irrespective of the order or judgment of nonsuit, for the its form or the designation given it by the judgment of nonsuit in itself constitutes a parties.

dismissal of the action. It seems clearly (Ed. Note.--For other cases, see Mines and

to have been so considered in defining it in Minerals, Cent. Dig. $ 166; Dec. Dig. Om56.)

section 581, Code of Civil Procedure, which

refers particularly to dismissals or the disAppeal from Superior Court, Los Angeles continuing of actions. County; Charles Wellborn, Judge.

[2] The motion for a judgment of nonsuit Action by Thomas Commins, trustee of the was properly granted, in our opinion, because Canadian Crude Oil Company, Limited, bank- the plaintiff's evidence did not establish his rupt, against the Guaranty Oil Company, right to the relief sought. Thomas Commins, for damages for breach of contract. From a l the plaintiff apnears as

the plaintiff, appears as the trustee of the judgment of nonsuit, plaintiff appeals. Af-Canadian Crude on Company bankrupt. firmed.

and hereinafter, for brevity's sake, we will Collier & Clark, of Los Angeles, for appel- refer to that corporation as the plaintiff. lant. Weaver, McCracken & McKee, of Los The evidence introduced on behalf of the Angeles, for respondent.

plaintiff showed that the defendant, in April,

1911, entered into an agreement with the JAMES, J. The plaintiff in this action, at plaintiff whereby the defendant let to the the conclusion of the testimony introduced in plaintiff, for a period of 20 years, 20 acres support of his main case, was nonsuited. of land in Kern county, Cal. Conditions of An appeal was taken from the order granting the agreement of lease provided that the the motion of nonsuit, the record of which plaintiff should develop oil on the land and order or judgment appeared only in the min- render unto the defendant a certain proporutes of the court.

tion of the gross amount of the product in [1] It is first claimed by the respondent that payment for such use. The plaintiff took the order granting the motion for a nonsuit, possession of the land, proceeded with the not being followed by a formal judgment of work of developing oil thereon, and condismissal, was not a final judgment in the tinued in that possession until November 1, sense that that term is used in section 939, 1911, when it abandoned the property. The Code of Civil Procedure, providing for ap abandonment was made because of an allegpeals. Section 581, Code of Civil Procedure, ed eviction suffered at the hands of the ownprovides that:

er of paramount title. This suit was brought "An action may be dismissed, or a judgment to recover as damages all of the money exof nonsuit entered, in the following cases: pended upon the property (amounting to * * * 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails

le more than $35,000), together with other sums to prove a sufficient case for the jury. * * * claimed to have been laid out incidental to The dismissals mentioned in, subdivisions the making of the contract engagement. The

and 5 of this section must be made byl evidence showed that about the middle of orders of the court entered upon the minutes thereof, and are effective for all purposes when

the year 1910 the defendant had contracted so entered. * * *!

I with the Lucky Boy Oil Company to purchase

a large tract of land from the latter, of for it was shown that, notwithstanding the which the 20 acres so leased to plaintiff were suit to quiet title of the Lucky Boy Oil Coma part; that the contract of purchase provid- pany was brought in June, 1911, the plained for installment payments to be made; tiff remained in possession and continued to that, prior to the making of the lease to operate the property until November of the plaintiff, defendant was in default under its same year. One of its managing officers, contract of purchase; and that in June fol- when asked whether it was not a fact that lowing the making of the plaintiff's lease, work was stopped because of the lack of the Lucky Boy Oil Company brought a suit funds, responded in the affirmative. There to quiet its title as against the contract of are authorities holding that, even conceding purchase held by the defendant. What be- an eviction of the tenant might have followed came of this suit to quiet title cannot be told the bringing of the action to quiet title by the from the record.

owner of the paramount title, the right to It is suggested in respondent's brief that take advantage of such eviction might be it was dismissed, but the testimony of the waived by the tenant remaining in possesattorney for the Lucky Boy Oil Company was sion. However, our conclusions do not into the effect that at the time of this trial volve any application of the holding made by the action was still pending and untried. such decisions. It is the contention of the plaintiff that the [3] Respondent has all along contended evidence was sufficient to show that it enter that the agreement, which we have called a ed upon the property under a covenant of lease, did not amount to such; but we think quiet possession, and that when the action that it should properly be so termed. Any to quiet title was commenced, and it was matter of mere form or designation which made to appear that the Lucky Boy Oil the parties may give to a document will not Company possessed the paramount title and change its legal effect. In order that plainright to possession, an eviction was work-tiff might make a case sufficient against a ed which entitled plaintiff to its damages. motion for judgment of nonsuit, we think Very important to a consideration of this that it should have shown a breach of the question is a certain term of the lease made express term of the contract which bound the by the defendant to the plaintiff. It was defendant to protect it in possession. It therein provided as follows:

| voluntarily gave up possession, abandoned "The first party [the defendant) agrees to pro- the property, and did that, too, without there tect the second party against the claims of any being any judgment declaring the rights party or parties, should any contests ever arise

of the Lucky Boy Oil Company or foreclosas to the ownership of the saine."

ing the interest of the defendant. By this term in the agreement it may be The view we have taken of the main quesassumed that the parties considered the mat- tion makes it unnecessary to consider or dister of possible claims or contests arising to cuss the objections urged as to the admisdisturb the possession of the lessee. No-sion and rejection of testimony. where in the complaint is it stated or inti

The judgment is aflirmed. mated that any fraud was practiced upon the plaintiff by the defendant, and the evidence We concur: CONREY, P. J.; SHAW, J. does not show that any false representations were made as to the quality of defendant's title to the land. The situation was, as ex. pressed by the evidence, that the plaintiff

LESLIE v. MCNEIL et ux. was willing to accept the lease made to it! (Supreme Court of Oregon. Feb. 8, 1916.) by the defendant, resting for its security ATTACHMENT Om 209AFFIDAVIT FOR PUBLI. upon that term of the agreement which madel OATION-SUFFICIENCY. the lessor bound to protect the lessee in pos

An affidavit for publication of summons in

a suit in which an attachment is levied on land session against the claims of other persons. must allege that the defendant has property Clearly it would seem to follow by every fair within the state; and, it failing to contain such inference that the plaintiff was not relving an averment, the court does not acquire juris

diction, and any judgment based thereon is void. upon any implied covenants, but rather upon

[Ed. Note.-For other cases, see Attachment, the specific and express terms of the agree- Cent, Dig. $8 675-687, 690, 691; Dec. Dig. Om ment held by it. Under such a condition of 209.) the contract and the evidence, was the plaintiff justified in vacating the property after

Department 2. Appeal from Circuit Court, suit was brought to quiet title and assert

Coos County; John S. Coke, Judge. the claim that it was evicted thereby? We

Action by G. W. Leslie against J. D. Methink not. It is not shown but that the de

Neil and wife. Defendants' objections to the fendant at the time of this trial still possess

confirmation of a sale of attached land were ed at least an equitable interest in the land,

sustained, and plaintiff appeals. Affirmed. and it was not shown that it would not or | Plaintiff began an action for the recovery could not in some way protect the possession of money by filing a complaint and placing of its tenant. This possession had not been in the hands of the sheriff a summons to be the subject of direct attack or interference, I forwarded to the sheriff of Harney county,

a mortgage.

where defendants then resided, and a writ, held that the affidavit for publication of sumof attachment was issued and a levy made mons must allege that the defendant has thereunder by the sheriff of Coos county up- property within the state, and it failing to on certain real property. The summons was contain such an averment the court does not subsequently served upon the defendants per acquire any jurisdiction, and any judgment sonally in Harney county, and they appeared based thereon is void. Colburn v. Barrett, specially by a motion to quash the service of 21 Or. 27, 26 Pac. 1008. summons which motion was allowed. There- It follows that the judgment must be afafter an alias summons was issued and plac-firmed; and it is so ordered. ed in the hands of the sheriff of Coos county for service, and by him returned "Not MOORE, C. J., and BEAN and HARRIS, found." This was followed by the filing of JJ., concur. an affidavit for publication of the summons, since in the meanwhile the defendants had removed to Texas. The affidavit contains,

JOHNSON V. MCKENZIE. among others, the following allegation: (Supreme Court of Oregon. Feb. 8, 1916.)

"That at the time said summons and also said 1. MORTGAGES 32—TRANSACTIONS CONSTIaltas summons was in the hands of the sheriff TUTING-DEED. for Coos county, Oregon, for service, there was Where a loan broker who secured a loan to at each of said times a writ of attachment is- enable plaintiff to erect a building on a lot took sued in this cause and in the hands of said sher- a conveyance of the premises under an agreeiff for service, and that immediately upon the ment that the building should be completed, sold receipt of each of said writs of attachment'the and the proceeds divided, and it appeared that sheriff for Coos county, Oregon, did then and the loan broker was not liable for any sums adthere execute the same and attach certain real vanced to plaintiff and that at the time of the property situated in Coos county, Oregon, which conveyance there was no pre-existing debt due property the said sheriff now hoids under and by the broker, the transaction, though the broker virtue of said writ."

deemed it his duty to protect the lender, some of

the proceeds of the loan having been diverted Thereafter an order was made and en

from the agreed purpose, cannot be construed as tered directing the publication of the summons, and as a result of such publication a [Ed. Note.-For other cases, see Mortgages, judgment was entered upon the default of Cent. Dig. 88 60-66, 84–94; Dec. Dig. Omw32. the defendants, which contained the follow

For other definitions, see Words and Phrases,

First and Second Series, Mortgage.] ing clause:

2. TRUSTS "It further appearing to the court that there

17, 18-DECLARATION OF TRUST

-NECESSITY. being certain real property attached in this cause belonging to the defendants situated in

Under L. O. L. 8 804, declaring that no inCoos county, Oregon, it is therefore ordered and

terest in real property other than a lease for a adjudged that said real property be sold as pro

term not exceeding one year, nor any trust or vided by statute and the proceeds thereof be ap

C power, can be created or declared otherwise than plied upon this judgment."

by operation of law or by a conveyance or other

instrument in writing, no trust can arise in mon. Afterward the property was sold under eys realized from the sale of land held under the judgment and plaintiff moved for a con- a parol trust, where, after the sale, there was

no declaration of trust, the parol trust being firmation of the sale, whereupon the defend

e, whereupon the aerend. invalid. ants appeared specially and filed objections (Ed. Note. For other cases, see Trusts, Cent. to the confirmation thereof. Upon a hearing Dig. 88 15-24; Dec. Dig. Om 17, 18.] the objections were sustained, and the motion Department 1. Appeal from Circuit Court, for confirmation denied and plaintiff appeals. Multnomah County; George N. Davis, Judge.

Edward H. Joehnk, of Marshfield (Geo. Action by Florence Johnson, formerly FlorWatkins, of Marshfield, on the brief), for ap- ence Smith, against J. H. McKenzie. From pellant. H. G. Hoy, of Marshfield (I. N. Mil. a judgment for defendant, plaintiff appeals. ler, of Marshfield, on the brief), for respondents.

John C. Shillock, of Portland, for appel

lant. Milton Reed Klepper, of Portland (J. BENSON, J. (after stating the facts as L. Conley, of Portland, on the brief), for above). We find it necessary to consider respondent. but one of the several questions presented, and that is the sufficiency of the affidavit for MOORE, C. J. This is an appeal by the publication of summons. It will be noted plaintiff from a decree dismissing her suit that this affidavit does not anywhere allege for an accounting. The testimony shows that that either of the defendants has any prop- for some time prior to the fall of 1909, the erty within the state of Oregon. The para- plaintiff, Florence Johnson, then Mrs. Smith, graph quoted in the above statement is the and her father, H. H. Bean, had been buying only reference to property that is to be found lots in Portland, Or., putting up buildings in the entire document. It is not even alleged thereon with money obtained from the dethat the sheriff has attached property belong- fendant, J. H. McKenzie, a broker, selling the ing to the defendants, but simply that the real property thus improved, and, from the officer did attach "certain real property situat- | proceeds, paying the sums borrowed. The ed in Coos county, Oregon." This court has plaintiff had a contract to purchase lot 8 in

block 12 in Merlow, an addition to that city, defendant, who, complying with the terms of and applied to the defendant to secure for the contract, furnished the money to comher a loan of $2,000, with which to erect a plete the building and sold and conveyed the two-story house on the premises. He pro- premises, but upon plaintiff's demand refused cured that sum from C. C. Marton, for which to account to her for any of the profits, and service the plaintiff promised to pay 2 per that $50 is a reasonable sum for his services. cent. for negotiating the loan and one-half The material allegations of the plaintiff's priof 1 per cent. for paying out the money for mary pleading are controverted by the aniabor employed upon and material used in swer which for a separate defense asserts putting up the dwelling.. From the sum loan that the title to the lot was absolutely coned the defendant paid, on December 11, 1909, veyed to the defendant who, by a parol $595.90, the remainder due to the Portland agreement, stipulated to relieve the plaintiff Trust Company, the owner in fee of the lot, of all liability to the mortgagee and on acwhich conveyed it to the plaintiff, who there count of outstanding obligations for labor upon executed to Marton a mortgage of the employed upon the building and material premises. The plaintiff's father, who was furnished for its construction, the terms of superintending the construction of the build- which agreement he had fully performed. ing upon the lot, suddenly died February 16, No written note or meinorandum, signed 1910, but prior thereto the defendant advanc- by the defendant, was offered in evidence to ed to him, from the loan, $1,000. Between establish a declaration of any beneficial inthe time of Mr. Bean's death and April 28, terest in the real property alleged to have 1910, the defendant gave the plaintiff $85.40, been held by him in trust for the plaintiff. paid for labor and material $240.71, charged Her testimony, which is corroborated by that as commissions $40 and $10, respectively, for of her witnesses, conforms to the allegations securing the loan and disbursing the money, of the complaint. A fair consideration of paid $15 for an abstract of the title to the that testimony tends to prove an agreement lot, expended $4 in connection with the mak- by the parties for a joint adventure, whereing of the mortgage, and $16 for insurance by the lot was conveyed to defendant in oron the building, or $2,007.01, that sum being der that he might furnish the money neces$7.01 more than the loan. When the plain-sary to finish the building, sell the real proptiff's father died the house was unfinished, erty, and divide the proceeds. After her faand on June 9, 1910, for the express consid- ther's death the plaintiff paid $10 for paint eration of $100, she executed to the defend- used on the building, expended $90 which ant a quitclaim deed of the lot, which was she procured from her mother in paying for not filed for record until September 14, 1910, labor employed on the dwelling, and in July, in consequence of a mistake in the sealed 1911, she also paid Ward Bros. $146.36 for instrument. The defendant, between June material that went into the structure. The 13, 1910, and August 15th thereafter, paid latter payment was made long after she exout from his own money $1,061.07 in complet-ecuted her deed to the defendant. She also ing the dwelling. He, on October 5, 1910, exercised a supervision over the finishing of agreed in writing to sell and convey to the house and assisted in making a sale of Elizabeth A. Mack the real property describ- the premises to Mrs. Mack. ed, for which she stipulated to give $3,950, A witness testified that the defendant inand then paid $100, which latter sum was formed him the quitclaim deed was executed given a broker for negotiating a sale of the by the plaintiff pursuant to an agreement premises. Mrs. Mack assumed the payment that she was to have six months within of the mortgage, then amounting to $2,052, which to redeem the property; but not har. agreed to pay Norman Bean, the plaintiff's ing done so, all her interest in and right to brother, $135 for labor performed upon the the premises were extinguished. dwelling, and executed promissory notes for So far as can be discovered from a careful $1,063, payable in installments to the defend- examination of the testimony, there was no ant who, by indorsement, converted them in- debt due or owing from the plaintiff to the to cash, making a profit of $601.93 on the defendant when she executed to him a deed sale of the lot.

for the lot. The defendant testified that $500 The complaint substantially charges that of the money obtained from Mr. Marton and in March, 1910, the plaintiff and the defend advanced to Mr. Bean was expended by the ant entered into an agreement whereby he latter in preparing a basement on another stipulated to furnish money enough to com- lot, upon which no building was erected by plete the house, and in consideration thereof reason of the sudden death of the plaintiff's she engaged to convey to him the lot which father. The defendant may have considered he was to sell and from the proceeds pay a moral obligation rested upon him to see the indebtedness against the property, the that the sum so diverted was restored to the expenses incurred in completing the building, building for the erection of which the money retain a reasonable sum as commission for was borrowed, thereby augmenting the sehis services and pay over the remainder to curity upon the faith of which the mortgagee her; that pursuant to that agreement she evidently relied when he made the loan.

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