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option to repurchase property theretofore, circumstances, it never has been questioned, to conveyed by them absolutely to Elling. Pri- our knowledge, that the death of one of the parma facie the transaction was a sale to E1- ties to the transaction is such a change." ing with an option to Fine and Pankey to re To the same effect, see 16 Cyc. 163, 164, purchase. Gassert v. Bogk, 7 Mont. 585, 19 and cases cited. Pac. 281, 1 L. R. A. 240. To reach the con [5] The only explanation Fine offers for clusion that it was intended as a mortgage, his delay is lack of funds; he “didn't want resort to extrinsic evidence was necessary. I to start anything" until satisfied of his abilThis means that the burden was upon Fine ity “to go through with it.”

However ap(Gassert v. Bogk, supra ; Riley v. Blacker, 51 propriate this stand may be, considered as Mont. 364, 152 Pac. 758), and that he could business strategy, it has no virtue in the be barred by laches from making the conten- field of equity where Fabian tactics are altion (Riley v. Blacker, supra; Harrington v. ways dangerous. Especially futile must it Butte & Superior Co., Ltd., 52 Mont. 263, be to avoid the effect of inaction so pro279, 157 Pac. 181; 27 Cyc. 231).

longed as here, when there were things he [4] The trial court held that he was so could have done, such as to proclaim his barred, and we can see no reason for deny- position, to demand an accounting, to proing this conclusion. The time within which test against expenditures he now seems to it became the duty of Fine to challenge the question, which required no outlay whatever. apparent effect of the transaction commenced Under the circumstances here shown, lack to run on February 1, 1899, when the option of funds is no excuse (16 Cyc. 159, and cases contract expired, and he became charged with cited; Leggett v. Standard Oil Co., 149 V. the knowledge that Elling might thereafter S. 287, 13 Sup. Ct. 902, 37 L. Ed. 737; Hay.. treat the property as upaffected by any claim. ward v. National Bank, 96 U. S. 611, 24 L. From that time until the heirs of Elling com- Ed. 855; Carter v. Mayor of Chattanooga menced this suit more than 13 years elapsed, [Tenn. Ch. App.) 48 S. W. 117; Bower v. during which Fine stood idly by while Elling Stein, 177 Fed. 673, 101 C. C. A, 299), and treated the property as his own, spent money the court was clearly right in applying the upon it, paid the taxes, and died, while the ex. doctrine of laches (Riley v. Blacker, supra; ecutors of Elling's will operated the property, Maher v. Farwell, 97 III. 56; Schradski v. spent money for its improvement, and paid the Albright, 93 Mo. 42, 5 S. W. 807; Turner v. taxes upon it, while the property passed Littlefield, 46 Ill. App. 169; Broaddus' Heirs through probate proceedings and was by de

v. Potts, 140 Ky. 583, 131 S. W. 510; Elliott cree formally distributed to Elling's heirs, v. Bunce, 10 Cal. App. 741, 103 Pac. 897 ; and while they, as such heirs, have operated Goree v. Clements, 94 Ala. 337, 10 South. 906; the property and paid the taxes on it ever Chapman v. Bank of California, 97 Cal. 155, since. Riley v. Blacker, supra, presented a

31 Pac. 896; Mellish v. Robertson, 25 Vt. similar situation, concerning which we said: 603; Harter v. Twohig, 158 U. S. 448, 15

Sup. Ct. 883, 39 L. Ed. 1019; Baird v. Baird, "Laches, considered as a bar independent of 48 Colo. 506, 111 Pac. 79; Fitch v. Miller, the statute of limitations, is a concept of equity: 200 111. 170, 65 N. E. 650; Landrum v. Bank it means negligence in the assertion of a right; it is the practical application of the maxim, et al., 63 Mo. 48). 'Equity aids only the vigilant;' and it exists [6] If, then, Fine was barred by his laches wben there has been unexplained delay of such from raising the question of mortgage or no duration or character as to render the enforcement of the asserted right inequitable. There mortgage, the court below was justified in fore it bas often been held by this court that: failing to specifically find upon the subject; While a mere delay short of the period of the indeed, such a finding would have been a statute of limitations does not of itself raise the presumption of laches (Wright v. Brooks. 47 pure gratuity. We may remark, however, Mont. 99, 130 Pac. 968;

Parchen v. Chessman, that if, as respondents insist with some rea49 Mont. 326, 142 Pac. 631, 146 Pac. 469, Ann. son, a fair inference from the language of Cas. 1916A, 681; Brundy v. Canby, 50 Mont. the findings made is that the transaction was 454, 148 Pac. 315), yet 'good faith and reason in fact what it appears to be, viz. a deed able diligence only can call into activity the powers of a court of equity, and, independent- absolute with an option to repurchase, we ly of the period fixed by the statute of limita- should not be inclined to disturb that conclutions, stale demands will not be entertained or sion, because we cannot say from a careful relief granted to one who has slept upon his rights. Considerations of public policy and the reading of this record that the evidence cleardifficulty of doing justice between the parties ly preponderates against it. are sufficient to warrant a court of equity in Appellant assails with much force the refusing to institute an investigation where the lapse of time in the assertion of the claim is finding that Fine's cause of action as set such as to show inexcusable neglect on the part forth in his counterclaim “is barred by the of the plaintiff, no matter how apparently just provisions of the statute of limitations of this bis claim may be; and this is particularly so state." This finding is rather vague, since it where the relations of the parties have been does not indicate what provisions of the statmaterially altered in the meantime.' Kavanaugh v. Flavin, 35 Mont. 133, 88 Pac. 764; Streicher ute of limitations are held to be a bar, and v. Murray, 36 Mont. 45, 92 Pac. 36; Brundy v. it may be that appellant's criticisms are Canby, supra. What constitutes a material sound; but if the appellant is barred by change of condition has been the subject of much laches, and that conclusion is sufficient, as judicial discussion and some judicial dissension ; but, whatever doubt there may be as to other, it clearly is, to sustain the judgment, the

question of limitations becomes of no im-, “That he has a defense to the original action portance.

upon the merits, and that he is able to present The other matters assigned as error could fense. It is not sufficient to merely allege these

to the court the evidence constituting that de not command a reversal, and therefore will matters as ultimate facts, or to aver them in not be further considered.

the form of an affidavit of merits, but the facts The judgment and order appealed from are

themselves

must be incorporated into affirmed.

his complaint, so that the court may determine that if his allegations are admitted by the other

party, the plaintiff would have been entitled to BRANTLY, C. J., and HOLLOWAY, J., | a judgment in his favor in the original action." concur.

Whitney v. Kelley, 94 Cal. 153, 29 Pac. 624, 15

L. R. A. 813, 28 Am. St. Rep. 106. (175 Cal. 16)

This rule is so well established that we LEE et al. v. COLQUHOUN. (S. F. 7243.) content ourselves with referring to Bell v. (Supreme Court of California. April 26, 1917.) the very recent case of Matson v. Batto, 161

Thompson, 147 Cal. 689, 82 Pac. 327, and to JUDGMENT Cw460(6) – SUIT TO SET ASIDE, Pac. 1144, where many of the earlier deciCOMPLAINT.

sions are cited. The complaint to set aside a judgment as obtained by fraud and without process must

The demurrer was therefore properly susshow a defense on the merits, and ability to tained upon the ground of want of facts sufpresent proof thereof.

ficient to constitute a cause of action, with[Ed. Note.-For other cases, see Judgment, out regard to the validity of any of the other Cent. Dig. 8. 885.)

grounds specified. Plaintiffs do not complain Department 1. Appeal from Superior of the court's failure to grant them leave to Court, City and County of San Francisco; amend, nor do they intimate that they could Frank J. Murasky, Judge.

have amended their complaint so as to obviAction by Henry E. Lee and another ate the defect. against W. W. Colquhoun. From an adverse

The judgment is affirmed. judgment, plaintiffs appeal. Affirmed.

We concur: SHAW, J.; LAWLOR, J. H. L. Cląyberg, Clark Clement, and Clayberg & Whitmore, all of San Francisco, for appellants. Walter Slack and Joseph K

(175 Cal. 13) Hutchinson, both of San Francisco, for re

KINARD V. JORDAN et al. (S. F. 7287.) spondent.

(Supreme Court of California. April 23, 1917.)

1. DISMISSAL AND NONSUIT 60(3) — FAILSLOSS, J. The plaintiffs appeal from a URE TO PROSECUTE-EFFECT OF APPEAL. judgment entered against them pursuant to Code Civ. Proc. § 583, providing for disan order sustaining a demurrer to their first missal where plaintift fails for more than two amended complaint.

years after answer filed to bring the action to

trial, is not operative in a case where an appeal The action was one in equity to set aside has been taken from a judgment, although penda money judgment obtained by the defendant ing such appeal the trial court attempted to herein against the plaintiffs and one Pack, vacate the judgment for plaintiff. individually and as copartners. It will suf

[Ed. Note.-For other cases, see Dismissal and

Nonsuit, Cent. Dig. § 142.) fice for present purposes to say that by their complaint the plaintiffs sought to set up, as

2. APPEAL AND ERROR 439_EFFECT OF AP

PEAL-POWER OF TRIAL COURT. grounds for equitable relief, that there had

An appeal taken by defendants removed the not been legal service of summons upon them, case from the jurisdiction of the trial court, so and that the judgment had been obtained that it had no power to set aside the judgment by fraud. Without examining the sufficiency

pending the appeal. of the averments relied on, we may assume Error, Cent. Dig. § 2197.]

[Ed. Note.-For other cases, see Appeal and that the plaintiffs stated facts sufficient to support their claims in these respects. But

Department 1. Appeal from Superior the complaint was totally devoid of any Court, City and County of San Francisco; averment to the effect that the plaintiffs George A. Sturtevant, Judge. herein ever had or now have a meritorious

Action by C. E. Kinard against William H. defense to the action which resulted in the Jordan and others. From a judgment disjudgment of which they complain, or that missing the action, plaintiff appeals. Resuch judgment was not, in fact, just. Even versed. though a judgment may have been obtained C. E. Kinard, in pro. per. Crittenden through fraud, or without service of process, Thornton, of San Francisco, for respondents. a court of equity will not grant relief against it in favor of a party who "claims only the SHAW, J. This is an appeal from a final barren right of being permitted to defend order or judgment dismissing the action. against a claim to which he had no defense.” The order dismissing the action was made Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639. on September 14, 1914, in pursuance of a In an action to set aside a judgment for motion by the defendants, under section 583 these grounds, the plaintiff must show : of the Code of Civil Procedure, to dismiss

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the action, because the plaintiff had failed, more appeared it is clear that the motion to for more than two years after answer filed dismiss was not well taken. to bring the action to trial. A brief history The motion purports to be made by all the of the case is necessary to explain the defendants, including Huntington. So far as grounds of the appeal.

he is concerned, it is clearly erroneous. He The action was begun on March 24, 1906. has never filed an answer, and his default Prior to 1909 a judgment of dismissal was was entered for not answering. The judgentered, because of the failure of the plaintiff ment against him was reversed, but the deto file an amended complaint in accordance fault still stands. The reversal was based with the orders of the court. The plaintiff on grounds which do not affect the validity appealed and the judgment was reversed on of the default. As to him, the ground on March 11, 1909, the decision holding that the which the motion was made did not exist. original complaint stated a cause of action The other defendants insist that the order for the specific performance of a contract by was properly made because of proceedings Huntington, one of the defendants, to trans- in the court below after they had appealed fer to the plaintiff's assignor certain shares from the judgment of November 8, 1911, of corporate stock, the other defendants be- / against them. The record shows that a few ing made parties solely because they were weeks after the filing of their notice of aptrustees for Huntington or assignees with real from the judgment of November 8, 1911, notice. Kinard v. Jordan, 10 Cal. App. 219, the following order was made: 101 Pac. 696. Thereafter the defendants, ex "In this case upon the court's own motion, cept Huntington, filed an amended answer to plaintiff in person, and counsel for defendants

consenting thereto: It is hereby ordered that the complaint. Huntington failed to answer. the judgment heretofore entered in favor of the On October 24, 1911, the trial. of the case plaintiff and against the defendants, other than was set for December 12, 1911. On Decem- the defendant F. A. Huntington, be and the same ber 12th it was continued for trial until De

is hereby set aside." cember 15, 1911. Notwithstanding these or

[2] The claim is that this order vacated ders, a judgment was rendered on November the judgment which was the subject of the 8, 1911, purporting to be a judgment in fa- appeal previously taken, set the case at vor of the plaintiff against all of the defend- large, and made it the duty of the plaintiff ants, including Huntington, his default hay- to proceed with due diligence to bring the ing been previously entered. From this judg- case to trial. The appeal taken by these ment an appeal was taken by Huntington on defendants removed the case from the jurisDecember 14, 1911, and a separate appeal diction of the superior court.

It was no was taken by the other defendants on Decem- longer pending therein for the purpose of ber 16, 1911. No transcript was filed by the amending the judgment or of vacating it for defendants on the last-mentioned appeal, and

errors apparent on the face of the record. that appeal is still pending. On the separate The consent of the parties could not reinvest appeal of Huntington the judgment, as the court with jurisdiction of that subjectagainst him, was reversed. This decision matter. The lower court, therefore, had no was rendered on March 9, 1914. Kinard v. power to make the order, and it must be Jordan, 167 Cal. 333, 139 Pac. 797. We pro- deemed a nullity. Parkside, etc., Co. v. Macceed to consider the judgment of dismissal Donald, 167 Cal. 346, 139 Pac. 805; Stewart made on September 14, 1914.

v. Taylor, 68 Cal. 5, 8 Pac. 605. It follows [1] The portion of section 583 relied on that the judgment was not vacated, the approvides that the court may in its discretion peal is still pending, the order did not redismiss an action for want of prosecution, vive the duty of the plaintiff to bring the on motion of the defendant, if the plaintiff case to trial, and did not again set in motion “bas failed for two years after answer filed the time prescribed by section 583. to bring such action to trial.” The answer

The judgment of dismissal is reversed. of the defendants, other than Huntington, was filed before the rendition of the judg

We concur: SLOSS, J.; LAWLOR, J. ment of November 8, 1911. That judgment, however erroneous it may be, purported to

(175 Cal. 6) determine the case. The aforesaid appeals SANTA BARBARA COUNTY v. MORE et al. taken therefrom suspended all power of the

(L. A. 3756.) court below to proceed, and necessarily took (Supreme Court of California. April 23, 1917.) the case out of the operation of section 583 1. HighwaY8 Cm 83 ABUTTING OWNERS while the appeals remained pending. The DESTROYING TREES. motion to dismiss was made within less than destroy shade and ornamental trees on the side

The abutting owner is deprived of right to six months after the decision on the appeal of a highway, though planted by him, and though of Huntington became final. With respect he owns the fee to the center of the road by to the other defendants their appeal is still Pol. Code, $8_2633, 2742, 4011, subd. 39, Code pending, and no proceedings could be had Civ. Proc. $ 733, and St. 1909, p. 1129, regula

tory thereof. looking toward the trial as to them until

(Ed. Note. For other cases, see Highways, that appeal was disposed of. If nothing Cent. Dig. 88 292, 293.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. CONSTITUTIONAL LAW Ow292 – HIGHWAYS/ six of these trees upon the highway in front

83 – TAKING PROPERTY WITHOUT DUE of his land. He was notified by the district PROCESS.

Statutes regulatory of when and under what. attorney of the county to cease this work of circumstances trees on a highway subserving destruction, and he promised to do so, but a useful as well as ornamental purposes may be few days thereafter on Sunday, in violation destroyed do not take property of the abutting of his promise, he employed a force of men owner without due process. [Ed. Note.-For other cases, see Constitutional

in an effort to destroy all of the trees before Law, Cent. Dig. $ 807; Highways, Cent. Dig. he could be restrained from so doing by pro$8 292, 293.)

cess of law. Twenty more trees were thus 3. Woods AND FORESTS O11 - PENALTIES destroyed before the work was arrested by RECOVERY.

the authorities. Thereupon the county of The penalty of $100 per tree for maliciously Santa Barbara brought this action, setting destroying shade trees on a highway, may not forth these matters, averring that the debe recovered under a complaint merely alleging damages.

struction was maliciously done, and that the Department 1. Appeal from Superior damage wrought by it was $2,600. Plaintiff Court, Santa Barbara County; Geo.

E prayed for an injunction and for a monetary

judgment in the sum of $2,600. For answer, Church, Judge.

Action by the County of Santa Barbara the defendant John F. More assumed all re against John F. More and others. From the sponsibility, asserted his ownership in the judgment, both parties appeal. Affirmed.

land, admitted the destruction of the trees,

denied that they were willfully or unlawfulE. W. Squier and Fred H. Schauer, both ly or maliciously destroyed, and asserted a of Santa Barbara, for plaintiff. Wm. G.

right in him so to destroy them by virtue of Griffith, of Santa Barbara, for defendants.

his ownership of the fee of the highway, set

ting forth in this connection the injury to PER CURIAM. Hollister avenue is the

his walnut orchard as above outlined. The principal highway leading from the city of court's findings of fact were in accord with Santa Barbara in the county of the same the foregoing statement. It found that the name, to the west and north. Defendant John'F. More owns a 400-acre tract of land and in their early growth nurtured by him,

trees had been planted by defendant More, fronting on the southerly line of this bigh- but that for many years the county had exerway. The highway boundaries are and for long have been defined by substantial fences cised supervision over them, pruning and caron either side. More than 20 years ago, More ing for them. It found further that the trees planted ornamental trees along this highway More, "subject to the right of the county of

were the property of the defendant John F. between the roadway proper and his fence. Santa Barbara to preserve them as part of He owns the 'fee of the land to the center line of the highway. These trees are native said highway, for the use and benefit of the

public, and control the cutting down, removblack walnuts, poplars, silver leaf maples, and catalpas. They have grown to be from al, or trimming of the same." It found fur1 foot to 3 feet in diameter, and some of ther that the trees “are large handsome them have reached a height of 70 feet. They trees, and add greatly to the comfortable use afforded with other trees a shaded avenue,

and enjoyment of said highway and the ecodeclared to be one of the most beautiful in nomical and convenient maintenance of the the state. While these trees were thus grow- same." In support of this last finding, the ing, defendant More planted English walnuts evidence was that beside their æsthetic val. upon his 400 acres. The row or rows near- ue, the trees afforded a grateful shade to the est to the ornamental trees upon the highway traveler in warm weather and during the suffered from their proximity to them. Some long period of summer drought, when it was of the ornamental trees thrust out lateral necessary to sprinkle the roadway, the betroots to a distance equal to their height. ter to preserve it; and that by arresting the Suckers sprang up from these roots, the soil sweep of the winds, they retarded evaporawas impoverished, the moisture from it with tion, and thus lessened the expense of the drawn, and the walnuts on these nearby upkeep of the highway. trees were of inferior size and quality. De The only evidence which the plaintiff offendant More upon more than one occasion fered under the allegation of damage above sought permission of the supervisors of the quoted was that of the supervisor of the discounty to destroy these ornamental trees, of-trict, who testified that he estimated the fering to substitute therefor some kind of damage to the highway by the destruction of tree, mentioning palm trees, which thrust the trees at $100 apiece, "considering the down a deep tap root and which would not trees of that value." On cross-examination send out lateral roots to the injury of his he explained that the basis of his estimate nut orchard. The board of supervisors of was the law which exacts a forfeiture of Santa Barbara county delayed action upon | $100 for the malicious destruction of each these petitions or requests, and they were shade or ornamental tree on any highway, withdrawn. Then, on the 11th day of April, Pol. Code, $ 2742. The trial court granted 1911, the defendant cut down and destroyed I the injunction prayed for. It made no spe

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cific finding upon the allegation of damage, 1 Power Co., 160 Cal. 699, 117 Pác. 906, 36 but in its conclusions of law declared that L. R. A. (N. S.) 185. But the question before the plaintiff “is not entitled to recover in us cannot be answered by mere references this form of action the penalty of $100 per to the decisions of other states without a tree imposed by the statute for digging up, presentation of the statute law of this state cutting down, or other malicious injuring bearing upon the matter. When consideraor destroying shade or ornamental trees up- tion is paid to our statutes, it will be found on the public highway."

that the Legislature has spoken decisively on From this judgment, cross-appeals have the question. By section 2633 of the Politbeen taken by the litigants; by plaintiff, ical Code, an owner or occupant of land adwhose contention is that the court erred in joining the highway is empowered to plant not fixing and awarding damages herein, in- trees in and along the highway, and whoever sisting that it established the malicious de willfully injures any of these trees is liastruction which entitled the county to recov.ble to the owner or to the occupant "for the er the $100 penalty; by the defendant, who damage which is thereby sustained.” Secinsists that by virtue of the ownership of the tion 2742 of the same Code has been cited fee of the soil, he had the right absolute to above, and it declares that: remove the trees. This latter contention first

"Whoever digs up, cuts down, or otherwise demands consideration. It finds support in maliciously injures or destroys any shade or two adjudications. The first, Village of Lan- ornamental tree,

forfeits one hundred dollars for each

tree." caster V. Richardson, 4 Lans. (N. Y.) 136, where the Supreme Court of New York held Section 4041, subdivision 39, of the same in case of a destruction similar to the pres-Code empowers the boards of supervisors to ent one that:

encourage under such regulations as they "Independently of the statute, trees standing may adopt, “the planting and preservation of in the streets or highway, the soil of which be- shade and ornamental trees on the public longs to the adjacent owners, are the exclusive property of such owners, and they may remove roads and highways," and authorizes boards them at pleasure."

of supervisors to “pay to persons planting The second of these cases is Bigelow v. and cultivating (such trees] for every living Whitcomb, 72 N. H. 473, 57 Atl. 680, 65 L. tree thus planted, at the age of four years, a R. A. 676, where the precise question here sum not exceeding one dollar.” Section 733 under consideration was presented for de- of the Code of Civil Procedure declares it to termination, the court saying that the ques- of another person or in the street or highway

be a trespass to destroy any tree on the land tion before it was:

“Whether, in laying out a highway under stat- in front of any person's house, village, or city utory authority, the public acquired a right to lot or cultivated ground; and, further, that prohibit the landowner from removing the trees the trespasser is liable for treble the amount standing in the highway next to his land, for the purpose of * shade and ornamenta of damages which may be assessed. By the tion. If the public cannot deprive the owner of statutes of 1909 (St. 1909, p. 1129), the board his trees by using them in constructing or re- of supervisors of each county is empowered pairing the road, can they deprive him from cutting them down and using them in such to appoint a board of forestry "who shall a manner as he sees 6t?

have exclusive charge and control of all

shade and ornamental trees, hedges, lawns, The court held that the public acquired no shrubs and flowers growing or to be grown such right, saying:

upon the public roads, highways, grounds "It is no more a deprivation of his property * right to cut down his trees and devote them to

within its respective county.” the useful and necessary work of road con

These Code sections and this statute clearstruction, than it is to appropriate them stand-ly indicate the policy of the state in regard ing, for the purposes of shade and ornamenta- to this matter, and more than that, form tion. An effective prohibition against one's use and enjoyment of his property in a usual and the controlling substantive law. Whatever otherwise appropriate manner deprives him of may be conceived to have been the right of his property, as much as its actual taking or as- the property owner to destroy such trees portation.

Whether the trees are use in the absence of the legislation upon our ful for shade and add to the beauty of the way, or whether they are only useful for lumber and books, of that right by that legislation he is wood, cannot determine the question of his own- absolutely deprived, unless it can be successership. If they are his property, he is entitled fully said that in depriving him of that right to the beneficial use of them, subject to such reasonable regulations as the public use of the the state has taken his property without prohighway may require (citing authorities).” cess of law. This argument which seems to

[1, 2] It is the unquestioned rule of deci- have been the basis of the New Hampshire sion in this state that the owner of the fee of decision is as above quoted. We do not a highway may exercise all such rights of think, however, that this contention can be dominion over his land thus subjected to the successfully maintained. Admittedly as a easement as are not inconsistent with, nor' part of its police power, the state has the to the detriment of the easement itself. right directly or through its agencies to conColegrove Water Co. v. City of Hollywood, trol the use of the public highways for all 151 Cal. 425, 90 Pac. 1053, 13 L. R. A. (N. purposes subserving their uses as public 8.) 904; Gurnsey v. Northern California' highways. These regulations may and do

164 P.-57

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