88 P. 1090 | Cal. | 1907
Plaintiff, a corporation, brings this action for a partition of certain premises which it avers to be "real property," and avers that it has an "estate of inheritance" therein. A demurrer to the complaint was filed by some of the defendants. The demurrer was general and special, and was sustained in the court below, and judgment was rendered in favor of defendants. From this judgment plaintiff appeals.
The action is based on section 752 of the Code of Civil Procedure. That section is under the head of "Actions for the partition of real property," and it provides that an action for partition may be brought by one or more cotenants of real property, in which one or more of them "have an estate of inheritance, or for life or lives, or for years." The court below held that the complaint shows that neither plaintiff nor any of the defendants had an estate of inheritance, or for life, or for years, in any real property, and upon that ground sustained the demurrer; and as we think that this conclusion was right, we need not examine any other question raised in the case.
In the complaint the alleged real property in which plaintiff is averred to have an estate of inheritance is described as follows: "The right to the exclusive use and occupation thereof for the purposes of laying down and planting oysters and taking up and carrying off the same in and from said real property, in accordance with and as provided by the terms of an act of the legislature of the state of California, entitled *394 `An act to encourage the planting and cultivation of oysters,' approved March 30, 1874." Those parts of said act of March 30, 1874, (Stats. of 1873-4, p. 940,) which are material here, are as follows: The title of the act is "An act to encourage the planting and cultivation of oysters," and the first section is as follows: —
"Any citizen of the United States may lay down and plant oysters in any of the bays, rivers or public waters of this State; and the ownership of and the exclusive right to take up and carry off the same shall be continued and remain in such person or persons who shall have laid down and planted the same." The next sections, down to and including section 8, provide that the person desiring to use the right must define the limits of his claim by stakes, etc., must maintain thereon a sign on which must be painted the words "Oyster Beds," and must record a description of his bed or beds of oysters in the county recorder's office. (In the case at bar it does not appear that appellant complied with these provisions; but we will not consider that matter.) It is further provided that, after he has complied with these provisions, any person who enters thereon and carries off oysters or removes therefrom marks designating boundaries shall be guilty of a misdemeanor. Section 9 is as follows: —
"This act shall not apply to any tide lands which the state may have sold to private parties; provided, further, that nothing herein shall be so construed as to interfere with the right of the state to sell and dispose of any of the tide lands, nor to affect in any manner the rights of purchasers at any sale of tide lands by the state."
In the property described in the complaint there is no element of an estate of inheritance, or, as described in section
The judgment appealed from is affirmed.
Angellotti, J., Sloss, J., Henshaw, J., and Lorigan, J., concurred.