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Junction because it was not denied on the court, and that an appellate court will not inpart of defendant that the use to which the terfere with the action of the trial judge in pipe line about to be constructed by it was such a case, except where a palpable abuse of to be put was to have water conveyed discretion is shown. Patterson v. Board of through the same and not petroleum oil or Supervisors, 50 Cal. 344; Efford v. South any of its by-products. It seems very clear Pacific C. R. R. Co., 52 Cal. 277; White v. to us from the recitals in the deed of con- Nunan, 60 Cal. 406; Bigelow v. City of Los veyance by which the right of way for pipe Angeles, 85 Cal. 614, 24 Pac, 778; Marks v. lines was acquired by defendant that the Weinstock, Lubin & Co., 121 Cal. 53, 53 Pac. uses for which the way was granted did not 362. include the use of a pipe line for the convey- The order is affirmed. ance of water. However, in one of the affidavits submitted on the part of defendant, We concur: ALLEN, P. J.; SHAW, J. the following statement appears: “That for the purpose of transporting oil and its prod. ucts, and for the purpose of transporting

(17 Cal. App. 203) such other fluids as it may require in the REEG v. MCARTHUR et al. (Civ. 999.) proper conduct of its business and have the (District Court of Appeal, Second District, Calright to transport by means of pipe lines,

ifornia. Oct. 2, 1911.) said defendant is now engaged in construct- 1. GUARANTY (8 4*)-CONTRACTS_LIABILITY ing a four-inch pipe line from Port San Luis INCURRED. to its said lands at Avila, which said pipe A contract for an exchange of lands signed line is to be constructed of standard wrought ant to execute a note as a guaranty that the

by defendant and codefendant required defendiron capable of standing high pressure, and other party would realize the amount of a note is adapted to and capable of being used for out of certain personalty. Held, that any liathe transportation of any and all fluid sub-bility against codefendant concerning the note stances.” With this affidavit before it, the to execute the note, and that codefendant is

is limited to liability upon defendant's failure trial court then had evidence that a part at not a guarantor of the payment thereof. least of the uses to which the pipe line was [Ed. Note.-For other cases, see Guaranty, to be put were those which could properly Cent. Dig. $$ 3-6; Dec. Dig. $ 4.*] be claimed as the right of defendant under 2. COURTS (8 169*) — JURISDICTION - AMOUNT the terms of the conveyance made to it.

IN CONTROVERSY. It may be said that there was no sufficient stating a cause of action, and the remaining

Where a complaint contains a count not denial of the fact asserted by plaintiffs, that counts demand an aggregate sum of less than among other uses the defendant proposed to $300, the superior court has no jurisdiction. have water conveyed through said pipe line. [Ed. Note.-For other cases, see Courts, Cent. The relief asked for in the action included Dig. $$ 413-436; Dec. Dig. § 169.*] an injunction to restrain the laying of the 3. PLEADING (§ 238*)—AMENDMENT—RIGHT TO pipe, as well as the transportation of water

AMEND.

Leave to amend a complaint is properly therethrough. Upon the evidence before it refused where it is clear that by no amendthe court was justified in concluding that ment could a sufficient cause of action be statthere was insufficient ground to entitle plained within the court's jurisdiction. tiffs to an injunction to prevent the laying of

[Ed. Note.--For other cases, see Pleading, the pipe. While it may be admitted that, if

Dec. Dig. $ 238.*] the facts as shown to the court had constitut- Appeal from Superior Court, Los Angeles ed the whole of the evidence considered upon County; Leon F. Moss, Judge. a final trial of the action, a sufficient showing

Action by George Reeg against Mrs. L. M. would then be made out to entitle plaintiffs McArthur and another. Judgment for deto an injunction to prevent water from being fendants, and plaintiff appeals. Affirmed. conveyed through the pipe line constructed in the manner proposed by defendant. Still

Hanson, Hackler & Heath, for appellant. it cannot be said that in denying the tempora- M. E. C. Munday, for respondents. ry writ the trial court abused the discretion committed to it. It does not appear that de- JAMES, J. [1] This action was brought fendant is insolvent or could not respond to by plaintiff to recover certain sums of money a claim for any damages which might be from the defendants; separate causes of accaused to plaintiffs by the commission of any tion being set forth in four different counts of the acts complained of pending trial of the in the amended complaint. These alleged action, nor that any judgment which the causes of action were founded upon an court might finally make in favor of the plain- agreement entered into between plaintiff and tiffs would be rendered ineffectual because of defendants, whereby certain real property the failure of the court to issue a temporary in the state of Minnesota belonging to C. W. injunction,

McArthur was agreed to be exchanged for [2] It is uniformly held that the matter of certain real property belonging to one Mary the issuance of a preliminary injunction is K. Reeg, which was located in the county of one resting in the sound discretion of the Los Angeles. The plaintiff, George Reeg, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

prosecuted this action as the assignee of the was properly sustained on the latter ground said Mary K. Reeg. A demurrer to the also. amended complaint interposed on behalf of [3] There was no error in the order made defendant Mrs. L. M. McArthur was sustain by the court denying plaintiff leave to amend, ed by the court without leave to amend, and for the reason that it manifestly appeared judgment followed accordingly. From this that by no amendment could a sufficient cause judgment plaintiff appeals.

of action be stated against Mrs. L. M. McArThe agreement for the exchange of the real thur of which the superior court had jurisdicproperty is attached to the amended com- tion. plaint as an exhibit, and recites the conditions The judgment is affirmed. which were to affect the transaction. Among other things, it is provided that the title to We concur: ALLEN, P. J.; SHAW, J. the land of C. W. McArthur was to be conveyed clear, except that a certain mortgage of $3,000 was to be assumed by Mary K.

(17 Cal. App. 205) Reeg, and the following condition was then SOUTHERN CALIFORNIA MUSIC CO. v. inserted in the agreement: “Said C. W. Mc

SKINNER. (Civ. 963.) Arthur to execute a note for $500 payable on (District Court of Appeal, Second District, Calor before 1 yr. after date. Said note is to be

ifornia. Oct. 2, 1911.) given as a guarantee that she (meaning Mary SALES ($ 479*)-CONDITIONAL SALE-ACTIONK. Reeg) will receive $500 out of person prop

PLEADING-COMPLAINT. erty such as hay, grain, horse and buggy and the complaint alleged that defendant in 1909

In an action to recover a money judgment, amt. of rent still due from tenant, all of purchased a piano from plaintiff, executing which is now on the 1st above des. piece of his note and an agreement in payment therefor. property." The agreement was signed by C. The note was due in four years, and the agreeW. McArthur, the latter also affixing the installments of $8 per month and that on

ment provided that defendant should pay in name of L. M. McArthur thereto, which we default in any installment plaintiff might remust assume was done with authority of the scind the contract, and if such monthly paylatter. The first cause of action set out in the ment was unpaid for more than 60 days the complaint refers to the matter of price ob- plaintiff might declare the whole sum due.

The complaint further alleged that the defendtained for the personal property, and it is ant had defaulted and that plaintiff had dethere alleged that $40 only was all that Mary clared the balance of the sum due. Held, that K. Reeg received upon a sale of said person. the complaint did not state a cause of action al property, leaving a balance of $460 which upon the note, for it was not due for four

years, and no facts were alleged under which it was alleged was due from defendants on it might be declared due prior to the date prothat account. In the cause of action referred vided, and it did not state a cause of action to it is alleged that the defendant C. w. on the agreement because there was

no alleMcArthur executed the $500 note in accord- gation that defendant had been in default for

60 days. ance with the terms of the agreement. If

[Ed. Note.-For other cases, see Sales, Cent. the defendant Mrs. L. M. McArthur had any | Dig $ 1436; Dec. Dig. § 479.*] liability imposed upon her with respect to this promissory note, it was only a liability

Appeal from Superior Court, Orange Counwhich might accrue upon the failure of c. w. ty; Frank F. Oster, Judge. McArthur to execute the note which he had

Action by the Southern California Music agreed to execute. Under none of the condi- Company against M. W. Skinner. From a tions stated in the writing, can it be said judgment for plaintiff, defendant appeals. that Mrs. L. M. McArthur became a guaran- Reversed and remanded, with directions. tor of the payment of the note of C. W. Mc- F. C. Spencer, for appellant. George Clark, Arthur. The amended complaint, therefore, for respondent. considering the first count thereof alone, stated no cause of action against defendant L. M. SHAW,J. Action to recover a money judgMcArthur, and the demurrer thereto was ment. The complaint alleges a sale by plainproperly sustained by the court.

tiff to defendant of a piano for the sum of [2] In the other three counts of the amend- $405; that on July 15, 1909, defendant exed complaint, plaintiff made claim for certain ecuted and delivered to plaintiff his promismoneys alleged to be due as interest on a sory note and agreement in payment theremortgage, unpaid taxes, etc. The aggregate for, a copy of which, it is alleged, is atmoney demand of said causes of action did tached to the complaint; that no part of not amount to the sum of $300, and therefore said sum of $405, other than the sum of the superior court had no jurisdiction to en- $25, has been paid; that defendant has detertain them. By the demurrer interposed by faulted in his payments as provided in the defendant L. M. McArthur the ground of agreement, and plaintiff has declared the want of jurisdiction was assigned as an ob- balance of said sum due, no part of which jection; and with the first cause of action balance has been paid. It is further alleged eliminated from consideration, as it must be that by the terms of the note defendant for the reasons we have stated, the demurrer agreed that should suit be brought to enforce the payment thereof 10 per cent. thereof, doubt the intention of plaintiff to allege facts should be added to any judgment rendered which under the terms of the contract gave thereon as attorney's fees in said action. Fol. it the right to declare the whole sum due; lowing the complaint, as appears from the rec- but the agreement contains no provision unord, is a promissory note as follows: "380.- der which the whole amount could be so 00. Los Angeles, Cal., July 15, 1909. Forty- declared merely because defendant had made eight months after date, for value received, default. The provision of the contract is I promise to pay to the order of Southern that "if payments to be made under this conCalifornia Music Co. at their office in Los tract shall be due and unpaid for a period of Angeles, California, three hundred and eighty 60 days the plaintiff may at its option declare dollars in lawful money of the United States, the balance still unpaid under this contract with interest at the rate of six per cent. per due and payable.” To constitute a cause of annum until paid. Should suit be brought to action for a breach of the contract, assuming enforce the payment of this note it is agreed that such right exists, the complaint should that 10 per cent. be added for attorney's fees, not only allege that defendant has made de[Signed] M. W. Skinner." Following this, fault in the payment of one or more of the as shown by the record, is an agreement installments, but that such default has consigned by defendant, by the terms of which tinued for the period of 60 days. It does not he agreed to pay plaintiff the sum of $405 for appear from the complaint that any installthe piano in the following manner, to wit: ment, the payment of which was required un$25 cash on delivery of the instrument, and der the terms of the contract, had been due the balance in installments of $8 per month, and unpaid for such period. payable on the 15th day of each month. It For the reasons given, the judgment is reis further provided that, in case defendant versed, and the trial court instructed to make fails to pay either of the monthly install an order sustaining defendant's demurrer. ments when due, plaintiff may rescind the contract and take possession of the piano, or,

We concur: ALLEN, P. J.; JAMES, J. if such monthly payment remains due and unpaid for a period of 60 days, plaintiff may declare the whole sum still unpaid under the BARBREE et al. v. KINGSBURY, Register

(17 Cal. App. 178) contract due and payable. Defendant demurred to the complaint upon the ground (District Court of Appeal, Third District, Cali

of State Land Office. (Civ. 869.) that it did not state facts sufficient to con

fornia. Sept. 29, 1911. Rehearing Denied by stitute a cause of action, and also upon the Supreme Court Nov. 27, 1911.) ground that the same was uncertain, in that | PUBLIC LANDS ($ 144*)–PATENTS-VALIDITY it could not be determined therefrom whether OF APPLICATION-AMOUNT APPLIED FOR. plaintiff's cause of action was based upon the ing to purchase a tract of school lands,

not

Pol. Code, $ 3495, provides that one desirpromissory note, or upon the alleged agree less than the smallest legal subdivision 'menment, or upon both. The demurrer was sub- tioned in a certain section, must make affidavmitted to the court without argument and it whether the land suitable for cultivation, overruled, and upon the trial of the case the and, if not, that applicant has not entered any

part of such lands which, together with that court gave plaintiff judgment for the sum of now sought to be entered, exceeds 640 acres; $380 and interest thereon, together with $38 and further provides that land unsuitable for attorney's fees, in accordance with the pro- cultivation may be sold in quantities not ex

ceeding 640 acres to any one person. More than vision of the promissory note. Defendant 25 years ago, petitioner's predecessor applied appeals from this judgment.

in good faith for school land; his affidavit beWe think the demurrer should have been ing true, except that it called for an excess of sustained upon both grounds. Not only is 2.24 acres more than 640 acres. The price was the complaint uncertain, as alleged in the de paid in full in 1909. Held, that the rule of

approximation," requiring the acreage covered murrer, but, however it may be regarded, it by the application to conform as nearly as pracclearly fails to state a cause of action. The ticable to the maximum prescribed by the statsuit was instituted some six months after the ute, and permitting the claim, where the excess

over the statutory amount is less than the dedate of the note, but the note by its terms ficiency would be, should a subdivision be exwas not due until four years after the date cluded, should, under the circumstances, be apthereof. The agreement contains no refer- plied, so that 'the excess in acreage covered by ence whatever to the note, and the complaint the application void, so as to prevent the is

the application and affidavit would not render is silent as to any allegation of fact under suance of a certificate for a patent. which it might be declared due prior to the [Ed. Note.--For other cases, see Public Lands, date when by its terms it was made payable. Dec. Dig. § 144.*] Hence no facts are alleged which could en- Appeal from Superior Court, Sacramento title plaintiff to a judgment upon the promis- County; C. N. Post, Judge. sory note.

Petition by W. R. Barbree and another The complaint alleges "that defendant has against W. S. Kingsbury, as Register of the defaulted in his payments as in said contract | State Land Office, for a writ of mandate. provided, and plaintiff has declared the bal. From an order denying the petition, petiance of the said sum now due." It was notioners appeal. Reversed. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Wallace M. Pence, for appellants. U. S. | logical conclusion of the contention would Webb, Atty. Gen., and Malcolm C. Glenn, for seem to be that Warren's application was respondent.

and is nugatory and void, since it did not

contain one of the important and essential BURNETT, J. This is an appeal from an elements required by the Code. It would order denying an application for a writ of follow that no patent could be legally issued mandate to require respondent, pursuant to to him or to his successors for any part of section 3519 of the Political Code, to issue said land. the usual certificate to the Governor for the In Hildebrand v. Stewart, 41 Cal. 387, it issuance of a patent for certain school lands. is held that: “When the law, under which Petitioners claim the right to the patent, as public lands are sold, requires certain acts the successors in interest to one Alfred War- to be performed as a prerequisite to the right ren, the original applicant for said lands. to purchase, the courts cannot dispense with On January 6, 1886, Warren filed his appli- the performance of those acts by legalizing cation or affidavit to purchase the lands an entry made without complying with therein described, and the controversy here them.” To the same effect are Woods v. grows out of the following averments in the Sawtelle, 46 Cal. 391; Botsford v. Howell, 52 said affidavit: "That said land is not suita- Cal. 158; Millidge v. Hyde, 67 Cal. 5, 6 Pac. ble for cultivation. That he had not entered | 852; and McKenzie v. Brandon, 71 Cal. 209, any portion of any lands mentioned in sec- 12 Pac. 428. tion 3,494 of the Political Code (to wit, the The Hildebrand Case involved a contest unsold portion of the 500,000 acres granted between two claimants to the same land, to the state for school purposes, the six arising before the Surveyor General, and teenth and thirty-sixth sections, and the transferred to the district court for adjudilands selected in lieu thereof), which, togeth- cation, and it was held by the Supreme Court er with that now sought to be purchased, ex- that the application to purchase by defendceeds 642.24 acres.

That the town- ant was invalid and ineffectual to vest in ship within which said land is situate was him any right to the land by reason of the and had been surveyed and sectionized by absence of the notice to the occupant or the United States prior to the date upon claimant of the house and corral then lowhich said affidavit was made or filed in said cated upon said land, as required by the act land office, and that said section 16 lies in under which defendant's attempted location one body in the form a square, and contains, was made. according to said survey of the United In Woods v. Sawtelle, supra, at the time States, 642 24/100 acres, and had no legal defendant made his application to purchase subdivision of said section 16 contains less the land, plaintiff was in possession thereof, than 40 acres or more than 42 acres."

and he had been for more than three years. Section 3495 of the Political Code pre- The defendant's application was approved scribes the method for the purchase of state by the Surveyor General, and a certificate of school lands, and provides that "any person purchase was issued to him, and plaintiff's desiring to purchase any portion not less application made subsequently was rejected. than the smallest legal subdivision of any of The statute provided that if there was an the lands mentioned in section thirty-four adverse occupant for more than 60 days at hundred and ninety-four, situated in any the time an application to purchase was township which has been surveyed by the made the applicant must so state. There United States must make an affidavit” con- was an omission in that respect in defendtaining certain averments, among them, ant's said application, and the Supreme "whether the land is or is not suitable for Court held that, by reason of his application cultivation,” and if the land is not suitable being in proper form, plaintiff, who was the for cultivation the affidavit must state “that prior occupant, but the subsequent applicant, the applicant has not entered any portion of had the better right to make the purchase. such lands, which together with that now The contest in the Botsford Case, supra, sought to be entered, exceeds six hundred was decided by the lower court in favor of and forty acres.” The section further pro- plaintiff, but it was reversed by the Supreme vides that, “Lands unsuitable for cultivation Court, on the ground that the facts required may be sold in quantities not exceeding six by the statute must be stated in the applicahundred and forty acres to any one person.” tion directly and positively; whereas plain

No question is raised that Warren acted tiff had stated them in the alternative form. in good faith, that his affidavit was true in In Millidge v. Hyde, it was held that the every respect, and that it was in proper demurrer to the complaint was properly susform, except that it called for an excess of tained for the reason that plaintiff's appli2.24 acres over the quantity of land that the cation failed to state, as required by the statute provides can be sold to one person. statute, that: “There is no valid claim to It is the contention of the respondent that such land other than that of the applicant; only one construction is possible of said sec- that he has not entered any land in part sattion of the Political Code, and that conten. isfaction of the unsold portion of the 500,000 tion places the limit of purchase at 640 acres, acre grant, or of the grant in lieu of the

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gether with that now sought to be purchased to 640 acres, but the said rule is applied to exceeds 320 acres."

this also. Circular 34, 'Land Dec. Dept. Int. In McKenzie v. Brandon, supra, it was 546. It is therefore argued that: “This rule beld that plaintiff stated in his affidavit what of approximation was well known at the time was not true, when he declared that there of the amendment to section 3495, supra, and was no actual possession of the lands ad- it must be presumed that the legislators verse to him, and it was decided that he had were familiar with it, and that it was a no claim to the title. These cases all involv- matter of common knowledge at the time of ed contesting applicants, and it was rightly the passage of the amendment in 1885, and determined that the claimant complying with that therefore the amendment was enacted the requirements of the statute should be with the intention that it would be interpretpreferred to the one who was remiss. ed according to the existing decisions of the

It is undoubtedly true, also, as asserted by department. U. S. v. Union Pac. R. R. Co., respondent, that "it has not been the policy 91 U. S. 72 [23 L Ed. 224].” of the state to sell large tracts of land, but While not desiring to hold that the Surrather, on the other hand, has it been the veyor General should be governed by this policy to encourage settlers to live on state rule in all cases, nor even that he should lands, and to sell lands in small tracts.” It give it effect at all in approving original apis equally true, bowever, that the state plications for purchase, considering the equishould not assume the attitude of a wrong. ties involved herein, the small quantity of doer, nor should the letter of the statute be the excess over the statutory maximum, and applied in favor of injustice, where it is pos- the conduct of the state's officers through all sible, by a liberal spirit of interpretation, to these years, we think that justice requires reach a righteous conclusion. The facts the application of the rule here. here, it may be said, are peculiar and per- It is not necessary either to hold that the suasive in favor of the claim of petitioners. doctrine of equitable estoppel, growing out of The application to purchase was made more the conduct of its officers, binds the state, than 25 years ago; the requisite portion of as it does individuals under similar circumthe purchase price was then paid, and for stances; but it must be apparent that jusall these years the interest on the balance tice and good conscience, which, Professor has been regularly tendered and accepted, Pomeroy says, are the foundation of said and finally, on October 25, 1909, the balance doctrine, should not be laid out of view in of the purchase price was paid. The good interpreting the statute. If the contention faith of the transaction has not been ques- here were between individuals, no court tioned; there is no contesting applicant; no would hesitate to grant the petition, and we one has been wronged, and the excess of the can see no reason why the said statute may land over 640 acres is so trifling, and of such not be construed in harmony with those little value, as to be scarcely worth consid- equitable principles that are admittedly the ering.

basis of our jurisprudence, and which are When the application was made, and when recognized as controlling by all upright men. It was approved by the Surveyor General, the The desire of respondent to require a strict agent of the state, and when he issued the observance of the statute is, of course, comcertificate of purchase, it was probably con-mendable, and if this were an application to sidered by the purchaser and the seller that, purchase a different situation would be preunder the peculiar circumstances, the “rule sented; but, in view of the facts already reof approximation" should apply. This rule lated, we think the patent should issue. The requires the acreage to conform, as nearly as judgment is therefore reversed. practicable, to the maximum amount prescribed by the statute, but permits the claim, We concur: CHIPMAN, P. J.; HART, J. where the excess over the statutory amount is less than the deficiency would be, should & subdivision be excluded.

(17 Cal. A. 184) It is contended by appellants that the rule

In re DE VRIES' ESTATE. (Civ. 894.) was adopted by the Land Department of the (District Court of Appeal, Third District, CaliUnited States at an early date, and has been

fornia. Sept. 29, 1911.) followed since. In re H. P. Sayles, 2 Land 1. WILLS (8 634*)— ESTATE DEVISED—"VESTDec. Dept. Int. 88, and other cases cited.

ED" REMAINDER—"CONTINGENT.”

The second clause of a will provided: “I It is pointed out that section 2304 of the Re- give, devise, and bequeath all the property of vised Statutes (U. S. Comp. St. 1901, p. 1413), which I may die seised and possessed relative to homesteads for soldiers and sail to my beloved wife for her natural life, the reors, provides that “not exceeding 160 acres” in proportions, for the time and upon the con

mainder thereof to my sons hereinafter named shall be selected, but the rule of approxima- ditions hereinafter expressed.” The fourth tion is applied to that section (In re Dotson, clause provided that, upon the termination of 13 Land Dec. Dept. Int. p. 275); furthermore, the wife's life estate, “I give and devise unto a special act, relative to Nebraska lands, my son M. should precede in death his wife and

my son M. all those certain lots. limits the amount of land for one individual I leave him no lawful issue surviving, and should *For other cases seo samo topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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