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of such partition is to convey the interest land. When an individual entitled to the of the various cotenants in the particular benefit of the statute has made location in parcels to the allottees of those parcels. accordance therewith, and gone into posEach is, therefore, a grantor and a grantee, session, he is said to be the owner and in and the one to whom an inclosed piece is possession of the mining claim thus located. set off has the same rights against the Such a claim, when perfected, is declared others that he would have if they had joined to be "property in the highest sense of that in a voluntary conveyance to him.—Mesmer term, which may be bought, sold and conv. Uharriet, 174 Cal. 110, 162 Pac. 104.

veyed, and will pass by descent."-Trinity 4. A party is not entitled to a way of Gold Dredging & Hydraulic Co. v. Beaudry, necessity where it is found that he has the 223 Fed. 739. right to travel a nearer road, and no such unreasonable expense or difficulty in reach

8 806. ing such road is shown as to establish a necessity for traveling over the other way.

1. Extent of servitude.-Sale of a lot of Mesmer v. Uharriet, 174 Cal. 110, 162 Pac.

land with reference to a map showing the 104.

lot as bordering on a street, before the 5. Where access of the inclosed parcel

recordation of the map which was subsehas been had over different parcels, the

quently recorded, creates an easement in owner of such parcel has not the right to

favor of the purchaser of the lot as against arbitrarily select one of such parcels and

the parcel of land shown on the map as a make it alone bear the burden of the ease

street.-Eltinge v. Santos, 171 Cal. 278, Ann. ment.-Mesmer v. Uharriet, 174 Cal. 110, 162

Cas. 1917A 1143, 152 Pac. 915. Pac. 104.

2. A purchaser of land for value takes 6. A right of way may be claimed by ad- subject only to interests in the land of verse user, but where asserted the claimant

which he has actual notice or which appear must prove a continuous and uninterrupted

of record, and this rule applies as well to use thereof.—Lapique v. Morrison, 29 Cal.

easements as to claims of a greater interest. App. 136, 154 Pac. 881.

-Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 7. A right of way by prescription is not

104. established where the use of the land has 3. Purchasers of a partitioned tract of been allowed by the owner as a matter of land are not charged with notice that the accommodation and the use has not been owner of another parcel was entitled to a of such character as to apprise him of any way of necessity across such land by a adverse claim.Lapique v. Morrison, 29 Cal. recorded map showing the partitioned lands App. 136, 154 Pac. 881.

and that such parcel was entirely inclosed 8. A right of way by necessity can be by various other parcels.-Mesmer v. Uharclaimed and held only where it furnishes riet, 174 Cal, 110, 162 Pac. 104. the only way by which access may be had to the property of the claimant.-Lapique v. Morrison, 29 Cal. App. 136, 154 Pac. 881.

EXTINGUISHMENT. 9. The right of way from necessity must be in fact what the term naturally imports,

1. Construction (subd. 4). and can not exist except in cases of strict

2, 3. By abandonment (subd. 4). necessity. It will not exist where a man 4. By inference. can get to his property through his own 5. By merger. land. That the way over his own land is

1. Construction (subd. 4)

.This subditoo steep or too narrow, or that other and

vision is not applicable where a franchise like difficulties exist, does not alter the case, and it is only where there is no way through

was acquired by grant and not by enjoyhis own land that a grantee can claim a

ment.—People v. Southern Pac. Co., 172 Cal.

692, 158 Pac. 177. right over that of his grantor. It must appear that the grantee has no other way.

2. By abandonment (subd. 4).—As a genLapique v. Morrison, 29 Cal. App. 136, 154

eral rule, in order to constitute an abandonPac. 881.

ment of an easement in a right of way by

a railroad company, there must be a nonuser $ 802.

accompanied by unequivocal and decisive 1. Servitudes not attached to land-Min

acts on the part of the company, clearly ing claims (subd. 6).—Congress has provided

showing an intention to abandon.-People how a mining claim can be acquired. In

v. Southern Pac. Co., 172 Cal. 692, 158 Pac.

177. general, it may be acquired by a discovery of mineral, particularly of gold, silver or

3. In the absence of a statute, mere noncopper, and the like, upon the public lands,

user for any length of time will not work and by staking the same off or marking it

an abandonment.-People v. Southern Pac. upon the ground, so that the boundaries

Co., 172 Cal. 692, 158 Pac. 177. may be plainly designated and readily as- 4. By inference.—Notice of a disclaimer certained. The right of continuous occupa- of the owner's interest and the assertion tion may be maintained by keeping up the of a claim of adverse right of way over the assessment work prescribed by law, and this land may be inferred from notorious acts. without incurring the obligation toward the Conaway v. Toogood, 172 Cal. 206, 158 Pac. government of buying and paying for the 200.

§ 811.

5. By merger.-In order that unity of title to two estates should extinguish an existing easement, the ownership of the two estates should be co-extensive, equal in validity, quality and all other characteristics. -Cheda v. Bodkin, 173 Cal. 7, 158 Pac, 1025.

therefor, he is bound, on consummating the purchase, to transfer the paintings to the person who has furnished the money. McKey v. Clark, 233 Fed. 928.

8 856.

8 830.

1. Construction.--The partitioning of the territory of a county into administrative districts is not a grant in the sense that such term is used herein.-People v. Williams, 29 Cal. App. 552, 156 Pac. 882.

$ 832

1. Lateral and subjacent support.-There is no requirement of support for buildings which have been superimposed upon the land adjacent to that upon which an excavation is to be made.- Alta Planing-Mill Co. v. Garland, 167 Cal. 179, 138 Pac. 738.

2. Nothing herein obliges the owner of a building, in order to protect his tenants, to take any steps whatever when the adjoining owner excavates his lot for building. If the tenant seeing his danger remains he can not complain because the owner failed to do something he was not required to do either by the statute or his contract with his tenant.-Carty V. Blauth, 169 Cal. 713, 147 Pac. 949.

3. The owner of a building does not, by the failure to provide lateral support for his building in case of excavation on adjoining property, create and maintain nuisance.—Carty v. Blauth, 169 Cal. 713, 147 Pac. 949.

1. Notice of trust-Burden of proving One who asserts the existence of a resulting or constructive trust in real property against a purchaser thereof for value, has the burden of proof of showing that such purchaser had notice of the trust.-Kowalsky v. Kimberlin, 173 Cal. 506, 160 Pac. 673.

2. Such burden is not met by the sending of a telegram on the day of the consummation of the sale to the company acting for the purchaser, giving no notice of the trust, but merely declaring that the sender owned an interest in the property, not shown by the records, or its extent defined in the telegram.--Kowalsky v. Kimberlin, 173 Cal. 506, 160 Pac. 673.

3. -Sufficiency of notice. — Notice, in order that it may be effectual, should be precise and complete enough to put the defendant upon his guard.—Kowalsky v. Kimberlin, 173 Cal. 506, 160 Pac. 673.

a

§ 841.

1. Fences—Effect of erection of boundary.-Adjoining land owners are not necessarily precluded, as to the boundary line between them, by the erection of a fence.Perich v. Maurer, 29 Cal. App. 293, 155 Pac. 471.

$ 858.

1. Trust deed-Notice of sale under.-A sale of real estate made under a trust deed is not subject to be set aside on the ground that the notice of the sale of the premises in parcels was not published for the full period of three weeks prior to the sale, but only for the period of five days as required by an order of court in an action brought to restrain the sale, where the trustees were empowered by the terms of the deed to sell the premises as a whole or in parcels at their discretion, and they previous to the court's order did make publication of the sale of the property in one parcel for three weeks prior to the fixed date of sale, as required by the terms of the deed.-Portola Realty Co. v. Carlston, 32 Cal. App. 282, 162 Pac. 899.

2. A sale of real estate under a trust deed is not invalid because the purchaser did not physically deliver to the trustees the amount of his bid or any portion thereof, in gold coin, but immediately after the sale borrowed from the bank, which held the notes and which was the beneficiary under the trust deed, the sum bid, which sum was then credited to the trustees and a deed executed to the purchaser.-Portola Realty Co. V. Carlston, 32 Cal. App. 282, 162 Pac. 899.

3. —Rights of grantor in.-The grantor in a trust deed given to secure an indebtedness is still the beneficial owner of the property and can maintain any necessary action dealing with its title.—United States Oil & Land Co. v. Bell, 219 Fed. 785.

$ 853.

§ 867.

1. Resulting trusts. — Where title to mortgaged land belonging to the estate of a deceased person is acquired by a third person under an arrangement between him and the heirs, by the terms of which he is to hold the land in trust for them and be repaid the amount of his outlays and interest, a resulting trust in their favor is created, and he has only a lien for his reimbursements.-O'Rourke v. Skellenger, 169 Cal. 270, 146 Pac. 633.

2. An action in equity will not lie to compel an agent employed to secure a lease of real property to make an assignment of the lease, which he procured in his own name, to his principal, where the employment was by parol, and the principal had parted with no consideration.—Bauman v. Wuest, 32 Cal. App. 217, 162 Pac. 434.

3. Where 'the holder of an option to purchase paintings agrees to buy them for the benefit of one who furnishes the money

1. Construction,-This section is qualified by section 859.—McColgan V. Magee, Inc., 172 Cal. 182, 155 Pac. 995.

8955.

1. Construction.—This section does not affect the restrictions placed upon the matter of the making of assignments of salaries of public officials.-Trow v. Moody, 27 Cal. App. 403, 150 Pac. 77.

$ 946.

1. Personal property-Construction.-The distribution of personal property is governed by the law of the domicile of the Owner. This statement is limited, however, by the fact that the law of the domicile controls "If there is no law to the contrary in the place where the personal property is situated." It is not only when the disposition made of the property does violence to the statute law of the country where it is situated that a limitation upon the otherwise universal rule is worked. It is equally true where the disposition made is conceived to be contrary to the welfare of that country or to its public policy.--Estate of Lathrop, 165 Cal. 243, 131 Pac, 752.

2. -Conflict of laws.—Personal property of a decedent wherever situated is governed by the law of the domicile of the owner, both as to distribution and the right of succession.-Estate of Hodges, 170 Cal. 492, L. R. A. 1916A 837, 150 Pac. 344.

$ 991.

1. Trade-marks.—The word "faultless," when used to designate bread, relates only to the name or quality of the bread, and therefore can not form the basis of an exclusive right as a trade-mark.-Temple v. Gordon, 31 Cal. App. 127, 160 Pac. 983.

§ 1001.

1. Construction.-The power “to acquire" property for public use given to a public service corporation by its articles of incorporation includes the right to condemn.Deseret Water, Oil & Irr, Co. v. State, 167 Cal. 147, 138 Pac. 981.

2. The requirement of section 466 that the map and profile must include "the land acquired for the use thereof" is not a condition precedent to the right of eminent domain.—Northwestern Pac. R. Co. v. Lambert, 166 Cal. 749, 137 Pac. 1116.

8 953.

1. Construction.—Under the comprehensive designation "chose in action" are included all debts and all claims for damages for breach of contract or for torts connected with contract.--Power & Irr. Co. v. Bank of Woodland, 226 Fed: 698.

PART IV.

ACQUISITION OF PROPERTY.

as

1006.

-People v. Banning Co., 167 Cal. 643, 140

Pac. 587.
TITLE BY OCCUPANCY.

5.

Possession is prima facie evidence of 1-3. Construction.

ownership.-Bond v. Aickley, 168 Cal. 161, 4-14. Adverse occupancy-As to generally.

141 Pac. 1188. 1. Construction.—This and the following 6. An adverse claimant can not, under a section are correlated and to be construed deed which conveys a good title to a portion together with sections 321-325 of the Code of a tract and a colorable one only to anof Civil Procedure.-People's Water Co. v. other portion thereof, take possession of the Anderson, 170 Cal. 683, 151 Pac. 127.

portion to which he has received good title 2. The term "occupancy," as used in sec

and by so doing maintain the claim that tion 1006 of the Civil Code, means possession, constructively he is in possession of the actual possession, contradistinguished whole tract.-Wheatley v. San Pedro, L. A. from constructive possession. "Occupation" & S. L. R. Co., 169 Cal. 505, 147 Pac. 135. is synonymous with the expression “subjec- 7. No character or period of adverse postion to the will and control” and with “pos- session can terminate or affect the public sessio pedis" and signifies "actual posses- easements for purposes of navigation and sion."—Hart v. All Persons, 26 Cal. App. fishery, and no length of time of mainte664. 148 Pac. 236.

nance, or number of repetitions, of wrongful 3. The doctrine of adverse possession encroachments can legalize a public nuimust be construed strictly, and such pos- sance. Adverse possession of land devoted session can not be shown by inference, but to public use does not divest the right of by clear and positive proof only.-Hart v. the state, or other public body in which the All Persons, 26 Cal. App. 664, 148 Pac. 236. title is vested, to maintain such public use,

4. Adverse occupancy-As to generally- nor in any manner affect the public right Ordinarily the mere possession of state or the public use.—Patton v. Los Angeles, lands dedicated to public use by one not in 169 Cal. 521, 147 Pac. 141. privity with the state or claiming under it, 8. A prescriptive right to water from a will not be adverse so as to set the statute stream can not be obtained against a ripaof limitations in motion. The state is deemed rian owner, unless its use is adverse and to acquiesce in such possession by private under claim of right.—Turner v. Eastside persons and it is considered permissive only. Canal & Irr. Co., 169 Cal. 652, 147 Pac. 579.

an

9. An individual can not acquire pre- continued.–Central Pac. R. Co. v. Droge, 171 scriptive title and a railroad right of way Cal. 33, 151 Pac. 663. granted by Congress.–Central Pac. R. Co. 7. An action to quiet title to a parcel of v. Droge, 171 Cal. 33, 151 Pac. 663.

land conveyed by the persons holding a tax 10. Enjoyment of easement in an- title thereto in trust to the city of Petaother's lar must re been adverse in the luma for the purpose of erecting and conlegal sense of the term, in order that it may ducting thereon a shoe factory, is barred by be conclusive of the right asserted, which the statute of limitations as against the involves, among other things, knowledge city, where the city, through its tenants, has and acquiescence of the owner of the land.- been in the exclusive, continuous and adverse Barlow v. Frink, 171 Cal. 165, 152 Pac. 290. possession of the property for at least ten

11. Title to such an easement by adverse years prior to the beginning of the action. possession is not acquired from the mistaken Beckett v. Petaluma, 171 Cal. 309, 153 Pac. 20. belief of the builder of the pipe-line that 8. The period included within that which any person has the right to put such a line will give title by adverse possession can not over the land of another, provided it is laid commence to run at any time as against the plow deep, and that the owner of the land ownership of the United States or of the use its spare capacity, where such mistaken state.-Lapique v. Morrison, 29 Cal. App. 136, conception is not communicated to the lat- 154 Pac. 881. ter.-Barlow v. Frink, 171 Cal. 165, 152 Pac. 9. Adverse possession is a possession 290.

which is accompanied with the real and 12. One claiming a right of way by pre- effectual enjoyment of the property. It is scription has placed upon him the burden the possession which follows the subjection of proving clearly, by competent evidence, of the property to the will and dominion of all of the elements essential to such a title.

the claimant to the exclusion of others; Barlow v. Frink, 171 Cal. 165, 152 Pac. 290. and this possession must be evidenced by

13. A mere intention to occupy land, how- occupation, cultivation, or other appropriate ever openly proclaimed, is not possession. use, according to the locality and character The intention must be carried into actual

of the particular premises. It must, in other execution by such open, unequivocal and no- words, be an open, unequivocal, actual postorious acts of dominion as plainly indicate session--notorious, apparent, uninterrupted to the public that the person who performs and exclusive-carrying with it marks and them has appropriated the land and claims

evidences of ownership, which apply in ordiexclusive dominion over it. Anything short

nary cases to the possession of real propof this is not what the law denominates erty.-Hart v. All Persons, 26 Cal. App. 664, possession.—Hart v. All Persons, 26 Cal.

148 Pac. 236. App. 664, 148 Pac. 236. 14. The occupancy by defendant in eject

§ 1013. ment of a strip of land in dispute is a species

1. Fixtures-Construction.—This section of title which will prevail over no title at

have no application to an accretion all on the part of the plaintiff.-Perich v.

made by filling in land to fit it for navigaMaurer, 29 Cal. App. 293, 155 Pac. 471.

tion and commerce so as to have the effect

of transferring it to the owners of the abut$ 1007.

ting upland.-Patton v. City of Los Angeles, 1. Title by prescription.--A title by pre- 169 Cal. 521, 147 Pac. 141. scription is a legal title.—Myers v. Berven, 166 Cal. 484, 137 Pac. 260.

§ 1014. 2. The running of the statute of limita

1. Alluvion-Construction. This section tions does not depend upon the presumption

does not establish the law with regard to of the existence of any grant.-People v.

alluvion on the seashore, neither does it Banning, 167 Cal. 643, 140 Pac. 587.

declare that alluvion nor the rights growing 3. A title by prescription can not be ac

out of it by the common law shall exist on quired against a tract of riparian land by

land abutting upon the ocean.-Strand Imp. diverting the water from the stream at a

Co. v. City of Long Beach, 173 Cal. 765, 161 point below the land, and not interfering

Pac. 975. with the stream at the riparian land.-Miller & Lux v. Enterprise Canal & L. Co., 169 Cal.

2. The right of an upland owner to ad415, 147 Pac. 567.

ditions to his land by alluvion or accretion 4. A title to tide lands which have been

exists where the land abuts upon the ocean, withheld from sale by the state can not be

and this section has no application to alter

the common law rule in acquired by adverse possession in the fee

that respect.subject to the public easements of naviga

Strand Imp. Co. v. City of Long Beach, 173 tion and fishing.–Patton v. Wilmington, 169

Cal. 765, 161 Pac. 975. Cal. 521, 147 Pac. 141.

3. -Western Pac, R. Co. v. Southern Pac. 5. A title to tide lands, which have been R. Co. disapproved.—The conclusion reached withheld from sale by the state, can not be by the United States Circuit Court of Apacquired by adverse possession.-People v. peals in Western Pac. R. Co. v. Southern Southern Pac. R. Co., 169 Cal. 537, 147 Pac. Pac. Co., 80 C. C. A. 606, 151 Fed. 376, 397, 274.

that this section covered the entire law of 6. Title to a public way can not be gained the state on the subject of alluvion, that it by adverse possession, no matter how long was exclusive in its character, and that it Carey, 170 Cal. 748, 151 Pac. 135. the force of the rule that a public official

can

abrogated the common law of alluvion as -Williams v. Kidd, 170 Cal. 631, Ann. Cas. applied to the seashore, is not approved by 1916E 703, 151 Pac. 1. our supreme court.—Strand Imp. Co. v. City 2. The execution of a deed includes efof Long Beach, 173 Cal. 765, 161 Pac. 975. fective delivery.-Williams v. Kidd, 170 Cal.

631, Ann Cas. 1916E 703, 151 Pac. 1. § 1025.

3. As to when delivery unnecessary.--A 1. Confusion

of
goods-Construction.-

deed to an infant requires no delivery to The doctrine of confusion of goods is not

or acceptance by the grantee, and the delivapplicable in the case of shares of stock

ery thereof to a notary public who placed and a promissory note, always capable of

it upon

record is a sufficient delivery.being distinguished, where the only confu

Turner v. Turner, 173 Cal. 782, 161 Pac. 980. sion alleged is in the proceeds of their sale,

Delivery to take effect after death.not in a mixture of the papers themselves.

Where a conveyance is made and placed in French v. Robbins, 172 Cal. 670, 158 Pac. 188. the hands of a third party with instructions

to deliver it to the grantee named therein § 1039.

on the death of the grantor, and it is the in1. “Transfer"-Construction.—The word

tention of the grantor to make the delivery “transfer" as defined in section 1039 of the

absolute and place the deed beyond all Civil Code can not be

power to thereafter revoke or control it, the

held to include every act whether committed by the debtor

title to the property presently passes, subor by others which may tend to hamper the

ject to a life estate in the grantor, and there creditor in subjecting the property to the

is no transfer of any property in any legal payment of his claim. While the meaning

sense upon his death and the consequent

termination of his of "transfer" is no doubt a broad one, it

life estate.-Hunt V. designates only those transactions which, as

Wicht, 174 Cal. 205, 162 Pac. 639.

5. While a deed may be handed to a third between the parties, pass or purport to pass the title or right of possession to the prop

party to be delivered to the grantee named erty. It need not be by writing but must

in it at the death of the grantor, such delivbe such an act as vests the real or apparent

ery will be held to pass title only "if the ownership of some interest in the trans

intention of the grantor is to make such deferee.-Scholle v. Finnell, 173 Cal. 372, 159

livery absolute and place it beyond his power Pac. 1179.

thereafter to revoke or control the deed";

such intention is a question of fact to be 1044.

determined by the trial court "from a con

sideration of all the evidence in a given 1. Construction.—Neither this section nor

case bearing upon the question."-Rice v. section 1458 tends in any manner to diminish

6. A person may make a conveyance of can not make an assignment of his wages

property and place it in the hands of a or salary until they have been completely

third party to be delivered to the grantee earned.—Trow v. Moody, 27 Cal. App. 403,

named in it on the death of the grantor, and 150 Pac. 77.

such a delivery will be effectual to pass a

present title to the property to the grantee, 8 1045.

if the intention of the grantor is to make 1. Transfer-of naked right.-A naked such delivery absolute and place it beyond right of action for fraud is not assignable; the power thereafter to revoke or control an interest in property must pass to give to the deed; where delivery is made under the assignee a right to enforce the remedies these circumstances and with this intention available to one who has been defrauded.- it is fully operative and effective to vest a Greenlee y. Los Angeles Trust & Sav. Bank, present title in the grantee, the grantor re171 Cal. 371, 153 Pac. 383.

taining only a life estate in the property

and the third party or depositary holds the $ 1052.

deed as a trustee for the grantee named in 1. Written agreement-Oral transfer.- it.-Williams v. Kidd, 170 Cal, 631, Ann. Cas. In the absence of any statute requiring the 1916E 703, 151 Pac. 1. assignment of an agreement to be in writing,

7. Where, on the other hand, a deed is a transfer thereof may be shown by parol deposited with a third party to be handed testimony.-Humboldt Milling Co. v. North- to the grantee on the death of the grantor, western Pac. R. Co., 166 Cal. 175, 135 Pac. unless this is accompanied by an intention 503.

on the part of the grantor that title to the

property shall thereby immediately pass to $ 1054.

the grantee, there is no delivery of the deed DELIVERY BY GRANTOR.

and consequently no title is transferred; if

the deed is handed to the depositary without 1, 2. Defined. 3. As to when delivery unnecessary.

any intention of presently transferring title,

but, on the contrary, the grantor intended to 4-7. Delivery to take effect after death.

reserve the right of dominion over the deed 8-13. Intent to deliver.

and revoke or recall it, there is no effective 14-16. Presumption of delivery.

delivery of the deed as a transfer of title, Defined.—The delivery of a deed is the and, if it be the intention of the grantor act by which it takes effect and passes title. when he deposits a deed that it shall only be

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