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of such partition is to convey the interest of the various cotenants in the particular parcels to the allottees of those parcels. Each is, therefore, a grantor and a grantee, and the one to whom an inclosed piece is set off has the same rights against the others that he would have if they had joined in a voluntary conveyance to him.-Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.

4. A party is not entitled to a way of necessity where it is found that he has the right to travel a nearer road, and no such unreasonable expense or difficulty in reaching such road is shown as to establish a necessity for traveling over the other way.Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.

5. Where access of the inclosed parcel has been had over different parcels, the owner of such parcel has not the right to arbitrarily select one of such parcels and make it alone bear the burden of the easement.-Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.

6. A right of way may be claimed by adverse user, but where asserted the claimant must prove a continuous and uninterrupted use thereof.-Lapique v. Morrison, 29 Cal. App. 136, 154 Pac. 881.

7. A right of way by prescription is not established where the use of the land has been allowed by the owner as a matter of accommodation and the use has not been of such character as to apprise him of any adverse claim.-Lapique v. Morrison, 29 Cal. App. 136, 154 Pac. 881.

8. A right of way by necessity can be claimed and held only where it furnishes 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.

9. The right of way from necessity must be in fact what the term naturally imports, and can not exist except in cases of strict necessity. It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must appear that the grantee has no other way.— Lapique v. Morrison, 29 Cal. App. 136, 154 Pac. 881.

§ 802.

1.

In

Servitudes not attached to land-Mining claims (subd. 6).—Congress has provided how a mining claim can be acquired. general, it may be acquired by a discovery of mineral, particularly of gold, silver or copper, and the like, upon the public lands, and by staking the same off or marking it upon the ground, so that the boundaries may be plainly designated and readily ascertained. The right of continuous occupation may be maintained by keeping up the assessment work prescribed by law, and this without incurring the obligation toward the government of buying and paying for the

land. When an individual entitled to the benefit of the statute has made location in accordance therewith, and gone into possession, he is said to be the owner and in possession of the mining claim thus located. Such a claim, when perfected, is declared to be "property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."-Trinity Gold Dredging & Hydraulic Co. v. Beaudry, 223 Fed. 739.

§ 806.

1. Extent of servitude.-Sale of a lot of land with reference to a map showing the lot as bordering on a street, before the recordation of the map which was subsequently recorded, creates an easement in favor of the purchaser of the lot as against the parcel of land shown on the map as a street.-Eltinge v. Santos, 171 Cal. 278, Ann. Cas. 1917A 1143, 152 Pac. 915.

2. A purchaser of land for value takes subject only to interests in the land of which he has actual notice or which appear of record, and this rule applies as well to easements as to claims of a greater interest. -Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.

3. Purchasers of a partitioned tract of land are not charged with notice that the owner of another parcel was entitled to a way of necessity across such land by a recorded map showing the partitioned lands and that such parcel was entirely inclosed by various other parcels.-Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.

§ 811.

EXTINGUISHMENT.

1. Construction (subd. 4).

2, 3. By abandonment (subd. 4). 4. By inference.

5. By merger.

1. Construction (subd. 4).-This subdivision is not applicable where a franchise was acquired by grant and not by enjoyment.-People v. Southern Pac. Co., 172 Cal. 692, 158 Pac. 177.

2. By abandonment (subd. 4).—As a general rule, in order to constitute an abandonment of an easement in a right of way by a railroad company, there must be a nonuser accompanied by unequivocal and decisive acts on the part of the company, clearly showing an intention to abandon.-People v. Southern Pac. Co., 172 Cal. 692, 158 Pac. 177.

3. In the absence of a statute, mere nonuser for any length of time will not work an abandonment.-People v. Southern Pac. Co., 172 Cal. 692, 158 Pac. 177.

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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.

§ 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 a nuisance.-Carty v. Blauth, 169 Cal. 713, 147 Pac. 949.

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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

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.

§ 856.

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.

§ 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. Carlston, 32 Cal. App. 282, 162 Pac. 899.

V.

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.

§ 867.

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

§ 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.

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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.

§ 1006.

PART IV.

ACQUISITION OF PROPERTY.

TITLE BY OCCUPANCY.

1-3. Construction.

4--14. Adverse occupancy-As to generally.

1. Construction. This and the following section are correlated and to be construed together with sections 321-325 of the Code of Civil Procedure.-People's Water Co. v. Anderson, 170 Cal. 683, 151 Pac. 127.

2. The term "occupancy," as used in section 1006 of the Civil Code, means possession, actual possession, as contradistinguished from constructive possession. "Occupation" is synonymous with the expression "subjection to the will and control" and with "possessio pedis" and signifies "actual possession."-Hart v. All Persons, 26 Cal. App. 664. 148 Pac. 236.

3. The doctrine of adverse possession must be construed strictly, and such possession can not be shown by inference, but by clear and positive proof only.-Hart v. All Persons, 26 Cal. App. 664, 148 Pac. 236. 4. Adverse occupancy—As to generally.— Ordinarily the mere possession of state lands dedicated to public use by one not in privity with the state or claiming under it, will not be adverse so as to set the statute of limitations in motion. The state is deemed to acquiesce in such possession by private persons and it is considered permissive only.

-People v. Banning Co., 167 Cal. 643, 140 Pac. 587.

5. Possession is prima facie evidence of ownership.-Bond v. Aickley, 168 Cal. 161, 141 Pac. 1188.

6. An adverse claimant can not, under a deed which conveys a good title to a portion of a tract and a colorable one only to another portion thereof, take possession of the portion to which he has received good title and by so doing maintain the claim that constructively he is in possession of the whole tract.-Wheatley v. San Pedro, L. A. & S. L. R. Co., 169 Cal. 505, 147 Pac. 135.

7. No character or period of adverse possession can terminate or affect the public easements for purposes of navigation and fishery, and no length of time of maintenance, or number of repetitions, of wrongful encroachments can legalize a public nuisance. Adverse possession of land devoted to public use does not divest the right of the state, or other public body in which the title is vested, to maintain such public use, nor in any manner affect the public right or the public use.-Patton v. Los Angeles, 169 Cal. 521, 147 Pac. 141.

8. A prescriptive right to water from a stream can not be obtained against a riparian owner, unless its use is adverse and under claim of right.-Turner v. Eastside Canal & Irr. Co., 169 Cal. 652, 147 Pac. 579.

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9. An individual can not acquire prescriptive title and a railroad right of way granted by Congress.-Central Pac. R. Co. v. Droge, 171 Cal. 33, 151 Pac. 663.

10. Enjoyment of an easement in another's land must have been adverse in the legal sense of the term, in order that it may be conclusive of the right asserted, which involves, among other things, knowledge and acquiescence of the owner of the land.Barlow v. Frink, 171 Cal. 165, 152 Pac. 290. 11. Title to such an easement by adverse possession is not acquired from the mistaken belief of the builder of the pipe-line that any person has the right to put such a line over the land of another, provided it is laid plow deep, and that the owner of the land use its spare capacity, where such mistaken conception is not communicated to the latter.-Barlow v. Frink, 171 Cal. 165, 152 Pac.

290.

12. One claiming a right of way by prescription has placed upon him the burden of proving clearly, by competent evidence, all of the elements essential to such a title.Barlow v. Frink, 171 Cal. 165, 152 Pac. 290. 13. A mere intention to occupy land, however openly proclaimed, is not possession. The intention must be carried into actual execution by such open, unequivocal and notorious acts of dominion as plainly indicate to the public that the person who performs them has appropriated the land and claims exclusive dominion over it. Anything short of this is not what the law denominates possession.-Hart v. All Persons, 26 Cal. App. 664, 148 Pac. 236.

14. The occupancy by defendant in ejectment of a strip of land in dispute is a species of title which will prevail over no title at all on the part of the plaintiff.-Perich v. Maurer, 29 Cal. App. 293, 155 Pac. 471.

§ 1007.

1. Title by prescription.—A title by prescription is a legal title.-Myers v. Berven, 166 Cal. 484, 137 Pac. 260.

2. The running of the statute of limitations does not depend upon the presumption of the existence of any grant.-People v. Banning, 167 Cal. 643, 140 Pac. 587.

3. A title by prescription can not be acquired against a tract of riparian land by diverting the water from the stream at a point below the land, and not interfering with the stream at the riparian land.-Miller & Lux v. Enterprise Canal & L. Co., 169 Cal. 415, 147 Pac. 567.

4. A title to tide lands which have been withheld from sale by the state can not be acquired by adverse possession in the fee subject to the public easements of navigation and fishing.-Patton v. Wilmington, 169 Cal. 521, 147 Pac. 141.

5. A title to tide lands, which have been withheld from sale by the state, can not be acquired by adverse possession.-People v. Southern Pac. R. Co., 169 Cal. 537, 147 Pac. 274.

6. Title to a public way can not be gained by adverse possession, no matter how long

continued.-Central Pac. R. Co. v. Droge, 171 Cal. 33, 151 Pac. 663.

7. An action to quiet title to a parcel of land conveyed by the persons holding a tax title thereto in trust to the city of Petaluma for the purpose of erecting and conducting thereon a shoe factory, is barred by the statute of limitations as against the city, where the city, through its tenants, has been in the exclusive, continuous and adverse possession of the property for at least ten years prior to the beginning of the action.Beckett v. Petaluma, 171 Cal. 309, 153 Pac. 20.

8. The period included within that which will give title by adverse possession can not commence to run at any time as against the ownership of the United States or of the state.-Lapique v. Morrison, 29 Cal. App. 136, 154 Pac. 881.

9. Adverse possession is a possession which is accompanied with the real and effectual enjoyment of the property. It is the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must be evidenced by occupation, cultivation, or other appropriate use, according to the locality and character of the particular premises. It must, in other words, be an open, unequivocal, actual possession-notorious, apparent, uninterrupted and exclusive-carrying with it marks and evidences of ownership, which apply in ordinary cases to the possession of real property.-Hart v. All Persons, 26 Cal. App. 664, 148 Pac. 236.

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1.

Alluvion-Construction. This section does not establish the law with regard to alluvion on the seashore, neither does it declare that alluvion nor the rights growing out of it by the common law shall exist on land abutting upon the ocean.-Strand Imp. Co. v. City of Long Beach, 173 Cal. 765, 161 Pac. 975.

2. The right of an upland owner to additions to his land by alluvion or accretion exists where the land abuts upon the ocean, and this section has no application to alter the common law rule in that respect.Strand Imp. Co. v. City of Long Beach, 173 Cal. 765, 161 Pac. 975.

3. -Western Pac. R. Co. v. Southern Pac. R. Co. disapproved.—The conclusion reached by the United States Circuit Court of Appeals in Western Pac. R. Co. v. Southern Pac. Co., 80 C. C. A. 606, 151 Fed. 376, 397, that this section covered the entire law of the state on the subject of alluvion, that it was exclusive in its character, and that it

abrogated the common law of alluvion as applied to the seashore, is not approved by our supreme court.-Strand Imp. Co. v. City of Long Beach, 173 Cal. 765, 161 Pac. 975.

§ 1025.

1. Confusion of goods-Construction.The doctrine of confusion of goods is not applicable in the case of shares of stock and a promissory note, always capable of being distinguished, where the only confusion alleged is in the proceeds of their sale, not in a mixture of the papers themselves.— French v. Robbins, 172 Cal. 670, 158 Pac. 188.

§ 1039.

1.

"Transfer”-Construction.-The word "transfer" as defined in section 1039 of the Civil Code can not be held to include every act whether committed by the debtor or by others which may tend to hamper the creditor in subjecting the property to the payment of his claim. While the meaning of "transfer" is no doubt a broad one, it designates only those transactions which, as between the parties, pass or purport to pass the title or right of possession to the property. It need not be by writing but must be such an act as vests the real or apparent ownership of some interest in the transferee. Scholle v. Finnell, 173 Cal. 372, 159 Pac. 1179.

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-Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

2. The execution of a deed includes effective delivery.-Williams v. Kidd, 170 Cal. 631, Ann Cas. 1916E 703, 151 Pac. 1.

3. As to when delivery unnecessary.—A deed to an infant requires no delivery to or acceptance by the grantee, and the delivery thereof to a notary public who placed it upon record is a sufficient delivery.Turner v. Turner, 173 Cal. 782, 161 Pac. 980. 4. Delivery to take effect after death. Where a conveyance is made and placed in the hands of a third party with instructions to deliver it to the grantee named therein on the death of the grantor, and it is the intention of the grantor to make the delivery absolute and place the deed beyond all power to thereafter revoke or control it, the title to the property presently passes, subject to a life estate in the grantor, and there is no transfer of any property in any legal sense upon his death and the consequent termination of his life estate.-Hunt V. Wicht, 174 Cal. 205, 162 Pac. 639.

5. While a deed may be handed to a third party to be delivered to the grantee named in it at the death of the grantor, such delivery will be held to pass title only "if the intention of the grantor is to make such delivery absolute and place it beyond his power thereafter to revoke or control the deed"; such intention is a question of fact to be determined by the trial court "from a consideration of all the evidence in a given case bearing upon the question."-Rice v. Carey, 170 Cal. 748, 151 Pac. 135.

6. A person may make a conveyance of property and place it in the hands of a third party to be delivered to the grantee named in it on the death of the grantor, and such a delivery will be effectual to pass a present title to the property to the grantee, if the intention of the grantor is to make such delivery absolute and place it beyond the power thereafter to revoke or control the deed; where delivery is made under these circumstances and with this intention it is fully operative and effective to vest a present title in the grantee, the grantor retaining only a life estate in the property and the third party or depositary holds the deed as a trustee for the grantee named in it. Williams v. Kidd, 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

7.

Where, on the other hand, a deed is deposited with a third party to be handed to the grantee on the death of the grantor, unless this is accompanied by an intention on the part of the grantor that title to the property shall thereby immediately pass to the grantee, there is no delivery of the deed and consequently no title is transferred; if the deed is handed to the depositary without any intention of presently transferring title, but, on the contrary, the grantor intended to reserve the right of dominion over the deed and revoke or recall it, there is no effective delivery of the deed as a transfer of title, and, if it be the intention of the grantor when he deposits a deed that it shall only be

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