To the same effect, see 16 Cyc. 163, 164, and cases cited. 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 Ell- ties to the transaction is such a change." ing with an option to Fine and Pankey to repurchase. Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, 1 L. R. A. 240. To reach the conclusion that it was intended as a mortgage, resort to extrinsic evidence was necessary. This means that the burden was upon Fine (Gassert v. Bogk, supra; Riley v. Blacker, 51 Mont. 364, 152 Pac. 758), and that he could be barred by laches from making the contention (Riley v. Blacker, supra; Harrington v. Butte & Superior Co., Ltd., 52 Mont. 263, 279, 157 Pac. 181; 27 Cyc. 231). [4] The trial court held that he was so barred, and we can see no reason for denying this conclusion. The time within which it became the duty of Fine to challenge the apparent effect of the transaction commenced to run on February 1, 1899, when the option contract expired, and he became charged with the knowledge that Elling might thereafter treat the property as unaffected by any claim. From that time until the heirs of Elling commenced this suit more than 13 years elapsed, during which Fine stood idly by while Elling treated the property as his own, spent money upon it, paid the taxes, and died, while the executors of Elling's will operated the property, spent money for its improvement, and paid the taxes upon it, while the property passed through probate proceedings and was by decree formally distributed to Elling's heirs, and while they, as such heirs, have operated the property and paid the taxes on it ever since. Riley v. Blacker, supra, presented a similar situation, concerning which we said: [5] The only explanation Fine offers for his delay is lack of funds; he "didn't want to start anything" until satisfied of his abilHowever apity "to go through with it." propriate this stand may be, considered as business strategy, it has no virtue in the field of equity where Fabian tactics are always dangerous. Especially futile must it be to avoid the effect of inaction so prolonged as here, when there were things he could have done, such as to proclaim his position, to demand an accounting, to protest against expenditures he now seems to question, which required no outlay whatever. Under the circumstances here shown, lack of funds is no excuse (16 Cyc. 159, and cases cited; Leggett v. Standard Oil Co., 149 U. S. 287, 13 Sup. Ct. 902, 37 L. Ed. 737; Hayward v. National Bank, 96 U. S. 611, 24 L. Ed. 855; Carter v. Mayor of Chattanooga [Tenn. Ch. App.] 48 S. W. 117; Bower v. Stein, 177 Fed. 673, 101 C. C. A. 299), and the court was clearly right in applying the doctrine of laches (Riley v. Blacker, supra; Maher v. Farwell, 97 Ill. 56; Schradski v. Albright, 93 Mo. 42, 5 S. W. 807; Turner v. Littlefield, 46 Ill. App. 169; Broaddus' Heirs v. Potts, 140 Ky. 583, 131 S. W. 510; Elliott V. Bunce, 10 Cal. App. 741, 103 Pac. 897; Goree v. Clements, 94 Ala. 337, 10 South. 906; Chapman v. Bank of California, 97 Cal. 155, 31 Pac. 896; Mellish v. Robertson, 25 Vt. 603; Harter v. Twohig, 158 U. S. 448, 15 Sup. Ct. 883, 39 L. Ed. 1049; Baird v. Baird, 48 Colo. 506, 111 Pac. 79; Fitch v. Miller, 200 Ill. 170, 65 N. E. 650; Landrum v. Bank et al., 63 Mo. 48). [6] If, then, Fine was barred by his laches from raising the question of mortgage or no mortgage, the court below was justified in failing to specifically find upon the subject; indeed, such a finding would have been a pure gratuity. We may remark, however, that if, as respondents insist with some reason, a fair inference from the language of the findings made is that the transaction was in fact what it appears to be, viz. a deed absolute with an option to repurchase, we should not be inclined to disturb that conclusion, because we cannot say from a careful reading of this record that the evidence clearly preponderates against it. "Laches, considered as a bar independent of the statute of limitations, is a concept of equity; it means negligence in the assertion of a right; it is the practical application of the maxim, 'Equity aids only the vigilant;' and it exists when there has been unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable. Therefore it has often been held by this court that: While a mere delay short of the period of the statute of limitations does not of itself raise the presumption of laches (Wright v. Brooks, 47 Mont. 99, 130 Pac. 968; Parchen v. Chessman, 49 Mont. 326, 142 Pac. 631, 146 Pac. 469, Ann. Cas. 1916A, 681; Brundy v. Canby, 50 Mont. 454, 148 Pac. 315), yet 'good faith and reasonable diligence only can call into activity the powers of a court of equity, and, independently of the period fixed by the statute of limitations, stale demands will not be entertained or relief granted to one who has slept upon his rights. Considerations of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, no matter how apparently just his claim may be; and this is particularly so where the relations of the parties have been materially 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; Appellant assails with much force the finding that Fine's cause of action as set forth in his counterclaim "is barred by the provisions of the statute of limitations of this state." This finding is rather vague, since it does not indicate what provisions of the stat but, whatever doubt there may be as to other it clearly is, to sustain the judgment, the question of limitations becomes of no importance. The other matters assigned as error could not command a reversal, and therefore will not be further considered. The judgment and order appealed from are affirmed. "That he has a defense to the original action upon the merits, and that he is able to present fense. It is not sufficient to merely allege these to the court the evidence constituting that dematters as ultimate facts, or to aver them in the form of an affidavit of merits, but the facts themselves must be incorporated into 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 Whitney v. Kelley, 94 Cal. 153, 29 Pac. 624, 15 L. R. A. 813, 28 Am. St. Rep. 106. BRANTLY, C. J., and HOLLOWAY, J., a judgment in his favor in the original action." concur. SLOSS, J. The plaintiffs appeal from a judgment entered against them pursuant to an order sustaining a demurrer to their first amended complaint. The action was one in equity to set aside a money judgment obtained by the defendant herein against the plaintiffs and one Pack, individually and as copartners. It will suffice for present purposes to say that by their complaint the plaintiffs sought to set up, as grounds for equitable relief, that there had not been legal service of summons upon them, and that the judgment had been obtained by fraud. Without examining the sufficiency of the averments relied on, we may assume that the plaintiffs stated facts sufficient to support their claims in these respects. But the complaint was totally devoid of any averment to the effect that the plaintiffs herein ever had or now have a meritorious defense to the action which resulted in the judgment of which they complain, or that such judgment was not, in fact, just. Even though a judgment may have been obtained through fraud, or without service of process, a court of equity will not grant relief against it in favor of a party who "claims only the barren right of being permitted to defend against a claim to which he had no defense." Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639. In an action to set aside a judgment for these grounds, the plaintiff must show: This rule is so well established that we content ourselves with referring to Bell v. the very recent case of Matson v. Batto, 161 Thompson, 147 Cal. 689, 82 Pac. 327, and to Pac. 1144, where many of the earlier decisions are cited. The demurrer was therefore properly sus tained upon the ground of want of facts sufficient to constitute a cause of action, without regard to the validity of any of the other grounds specified. Plaintiffs do not complain of the court's failure to grant them leave to amend, nor do they intimate that they could have amended their complaint so as to obviate the defect. The judgment is affirmed. 1. DISMISSAL AND NONSUIT ~60(3) — FAILURE TO PROSECUTE-EFFECT OF APPEAL. Code Civ. Proc. § 583, providing for dismissal where plaintiff fails for more than two years after answer filed to bring the action to trial, is not operative in a case where an appeal has been taken from a judgment, although pending such appeal the trial court attempted to vacate the judgment for plaintiff. Nonsuit, Cent. Dig. § 142.] [Ed. Note.-For other cases, see Dismissal and 2. APPEAL AND ERROR 439-EFFECT Of Ap. PEAL-POWER OF TRIAL COURT. An appeal taken by defendants removed the case from the jurisdiction of the trial court, so that it had no power to set aside the judgment pending the appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2197.] Department 1. Appeal from Superior Court, City and County of San Francisco; George A. Sturtevant, Judge. Action by C. E. Kinard against William H. Jordan and others. From a judgment dismissing the action, plaintiff appeals. versed. Re C. E Kinard, in pro. per. Crittenden Thornton, of San Francisco, for respondents. SHAW, J. This is an appeal from a final order or judgment dismissing the action. The order dismissing the action was made on September 14, 1914, in pursuance of a motion by the defendants, under section 583 of the Code of Civil Procedure, to dismiss the action, because the plaintiff had failed for more than two years after answer filed to bring the action to trial. A brief history of the case is necessary to explain the grounds of the appeal. The action was begun on March 24, 1906. Prior to 1909 a judgment of dismissal was entered, because of the failure of the plaintiff to file an amended complaint in accordance with the orders of the court. The plaintiff appealed and the judgment was reversed on March 11, 1909, the decision holding that the original complaint stated a cause of action for the specific performance of a contract by Huntington, one of the defendants, to transfer to the plaintiff's assignor certain shares of corporate stock, the other defendants being made parties solely because they were trustees for Huntington or assignees with notice. Kinard v. Jordan, 10 Cal. App. 219, 101 Pac. 696. Thereafter the defendants, except Huntington, filed an amended answer to the complaint. Huntington failed to answer. On October 24, 1911, the trial. of the case was set for December 12, 1911. On December 12th it was continued for trial until De cember 15, 1911. Notwithstanding these orders, a judgment was rendered on November 8, 1911, purporting to be a judgment in favor of the plaintiff against all of the defendants, including Huntington, his default having been previously entered. From this judgment an appeal was taken by Huntington on December 14, 1911, and a separate appeal was taken by the other defendants on December 16, 1911. No transcript was filed by the defendants on the last-mentioned appeal, and that appeal is still pending. On the separate appeal of Huntington the judgment, as against him, was reversed. This decision was rendered on March 9, 1914. Kinard v. Jordan, 167 Cal. 333, 139 Pac. 797. We proceed to consider the judgment of dismissal made on September 14, 1914. more appeared it is clear that the motion to dismiss was not well taken. The motion purports to be made by all the defendants, including Huntington. So far as he is concerned, it is clearly erroneous. He has never filed an answer, and his default was entered for not answering. The judgment against him was reversed, but the default still stands. The reversal was based on grounds which do not affect the validity of the default. As to him, the ground on which the motion was made did not exist. The other defendants insist that the order was properly made because of proceedings in the court below after they had appealed from the judgment of November 8, 1911, against them. The record shows that a few weeks after the filing of their notice of appeal from the judgment of November 8, 1911, the following order was made: "In this case upon the court's own motion, consenting thereto: It is hereby ordered that plaintiff in person, and counsel for defendants the judgment heretofore entered in favor of the plaintiff and against the defendants, other than the defendant F. A. Huntington, be and the same is hereby set aside." [2] The claim is that this order vacated The judgment of dismissal is reversed. [1] The portion of section 583 relied on provides that the court may in its discretion dismiss an action for want of prosecution, on motion of the defendant, if the plaintiff "has failed for two years after answer filed to bring such action to trial." The answer of the defendants, other than Huntington, was filed before the rendition of the judgment of November 8, 1911. That judgment, however erroneous it may be, purported to determine the case. The aforesaid appeals SANTA BARBARA COUNTY v. MORE et al. taken therefrom suspended all power of the court below to proceed, and necessarily took the case out of the operation of section 583 while the appeals remained pending. The motion to dismiss was made within less than six months after the decision on the appeal of Huntington became final. With respect to the other defendants their appeal is still pending, and no proceedings could be had looking toward the trial as to them until that appeal was disposed of. If nothing (175 Cal. 6) (L. A. 3756.) (Supreme Court of California. April 23, 1917.) 1. HIGHWAYS 83 ABUTTING OWNERS DESTROYING TREES. The abutting owner is deprived of right to of a highway, though planted by him, and though destroy shade and ornamental trees on the side he owns the fee to the center of the road by Pol. Code, §§ 2633, 2742, 4041, subd. 39, Code Civ. Proc. § 733, and St. 1909, p. 1129, regulatory thereof. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 292, 293.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. CONSTITUTIONAL LAW 292 - 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 circumstances trees on a highway subserving useful as well as ornamental purposes may be destroyed do not take property of the abutting owner without due process. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 807; Highways, Cent. Dig. §§ 292, 293.] 3. WOODS AND FORESTS 11- PENALTIES RECOVERY. The penalty of $100 per tree for maliciously destroying shade trees on a highway may not be recovered under a complaint merely alleging damages. Department 1. Appeal from Superior Court, Santa Barbara County; Geo. E PER CURIAM. Hollister avenue is the principal highway leading from the city of Santa Barbara in the county of the same name, to the west and north. Defendant John F. More owns a 400-acre tract of land fronting on the southerly line of this high way. The highway boundaries are and for long have been defined by substantial fences on either side. More than 20 years ago, More planted ornamental trees along this highway between the roadway proper and his fence. He owns the fee of the land to the center line of the highway. These trees are native black walnuts, poplars, silver leaf maples, and catalpas. They have grown to be from 1 foot to 3 feet in diameter, and some of them have reached a height of 70 feet. They afforded with other trees a shaded avenue, declared to be one of the most beautiful in the state. While these trees were thus growing, defendant More planted English walnuts upon his 400 acres. The row or rows nearest to the ornamental trees upon the highway suffered from their proximity to them. Some of the ornamental trees thrust out lateral roots to a distance equal to their height. Suckers sprang up from these roots, the soil was impoverished, the moisture from it withdrawn, and the walnuts on these nearby trees were of inferior size and quality. Defendant More upon more than one occasion sought permission of the supervisors of the county to destroy these ornamental trees, offering to substitute therefor some kind of tree, mentioning palm trees, which thrust down a deep tap root and which would not send out lateral roots to the injury of his nut orchard. The board of supervisors of Santa Barbara county delayed action upon these petitions or requests, and they were withdrawn. Then, on the 11th day of April, 1911, the defendant cut down and destroyed attorney of the county to cease this work of destruction, and he promised to do so, but a few days thereafter on Sunday, in violation of his promise, he employed a force of men in an effort to destroy all of the trees before he could be restrained from so doing by process of law. Twenty more trees were thus destroyed before the work was arrested by the authorities. Thereupon the county of Santa Barbara brought this action, setting forth these matters, averring that the destruction was maliciously done, and that the damage wrought by it was $2,600. Plaintiff prayed for an injunction and for a monetary judgment in the sum of $2,600. For answer, the defendant John F. More assumed all responsibility, asserted his ownership in the land, admitted the destruction of the trees, denied that they were willfully or unlawfully or maliciously destroyed, and asserted a right in him so to destroy them by virtue of his ownership of the fee of the highway, setting forth in this connection the injury to his walnut orchard as above outlined. The court's findings of fact were in accord with the foregoing statement. It found that the and in their early growth nurtured by him, trees had been planted by defendant More, but that for many years the county had exercised supervision over them, pruning and caring for them. It found further that the trees More, "subject to the right of the county of were the property of the defendant John F. said highway, for the use and benefit of the Santa Barbara to preserve them as part of public, and control the cutting down, removal, or trimming of the same." It found further that the trees "are large handsome trees, and add greatly to the comfortable use and enjoyment of said highway and the economical and convenient maintenance of the same." In support of this last finding, the evidence was that beside their æsthetic value, the trees afforded a grateful shade to the traveler in warm weather and during the long period of summer drought, when it was necessary to sprinkle the roadway, the better to preserve it; and that by arresting the sweep of the winds, they retarded evaporation, and thus lessened the expense of the upkeep of the highway. The only evidence which the plaintiff offered under the allegation of damage above quoted was that of the supervisor of the district, who testified that he estimated the damage to the highway by the destruction of the trees at $100 apiece, "considering the trees of that value." On cross-examination he explained that the basis of his estimate was the law which exacts a forfeiture of $100 for the malicious destruction of each shade or ornamental tree on any highway. Pol. Code, § 2742. The trial court granted the injunction prayed for. It made no spe cific finding upon the allegation of damage, | 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 this form of action the penalty of $100 per tree imposed by the statute for digging up, cutting down, or other malicious injuring or destroying shade or ornamental trees up-tion is paid to our statutes, it will be found on the public highway." us cannot be answered by mere references to the decisions of other states without a presentation of the statute law of this state bearing upon the matter. When considera 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 insists that by virtue of the ownership of the fee of the soil, he had the right absolute to remove the trees. This latter contention first demands consideration. It finds support in two adjudications. The first, Village of Lancaster v. Richardson, 4 Lans. (N. Y.) 136, where the Supreme Court of New York held in case of a destruction similar to the present one that: "Independently of the statute, trees standing in the streets or highway, the soil of which belongs to the adjacent owners, are the exclusive property of such owners, and they may remove them at pleasure." The second of these cases is Bigelow v. Whitcomb, 72 N. H. 473, 57 Atl. 680, 65 L. R. A. 676, where the precise question here under consideration was presented for determination, the court saying that the question before it was: damage which is thereby sustained." Section 2742 of the same Code has been cited above, and it declares that: "Whoever digs up, cuts down, or otherwise maliciously injures or destroys any shade or ornamental tree, forfeits one hundred dollars for each tree." Section 4041, subdivision 39, of the same Code empowers the boards of supervisors to encourage under such regulations as they may adopt, "the planting and preservation of shade and ornamental trees on the public roads and highways," and authorizes boards of supervisors to "pay to persons planting and cultivating [such trees] for every living tree thus planted, at the age of four years, a sum not exceeding one dollar." Section 733 of the Code of Civil Procedure declares it to be a trespass to destroy any tree on the land of another person or in the street or highway "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 prohibit the landowner from removing the trees standing in the highway next to his land, for the purpose of shade and ornamentation. If the public cannot deprive the owner of his trees by using them in constructing or repairing the road, can they deprive him * * * from cutting them down and using them in such a manner as he sees fit?" The court held that the public acquired no such right, saying: lot or cultivated ground; and, further, that the trespasser is liable for treble the amount of damages which may be assessed. By the statutes of 1909 (St. 1909, p. 1129), the board of supervisors of each county is empowered to appoint a board of forestry "who shall have exclusive charge and control of all shrubs and flowers growing or to be grown shade and ornamental trees, hedges, lawns, upon the public roads, highways, grounds within its respective county." * * "It is no more a deprivation of his property right to cut down his trees and devote them to the useful and necessary work of road conThese 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 have been the basis of the New Hampshire decision is as above quoted. We do not think, however, that this contention can be successfully maintained. Admittedly as a part of its police power, the state has the right directly or through its agencies to control the use of the public highways for all purposes subserving their uses as public [1, 2] It is the unquestioned rule of decision in this state that the owner of the fee of a highway may exercise all such rights of dominion over his land thus subjected to the easement as are not inconsistent with, nor to the detriment of, the easement itself. Colegrove Water Co. v. City of Hollywood, 151 Cal. 425, 90 Pac. 1053, 13 L. R. A. (N. S.) 904; Gurnsey v. Northern California highways. 164 P.-57 These regulations may and dɔ |