110 Cal. 582 | Cal. | 1895
In the year 1873 the United States issued to one F. Hoffman a patent for certain mining ground,
Plaintiff’s action is for the purpose of quieting his alleged title to the ditch. He founds his right on: ' 1. A mortgage executed by said Hoffman, November 13, 1883, to plaintiff and one Tillotson, upon said Smith mining claim and said water ditch, Hoffman, it seems, having become the owner of the Smith claim; 2. Judgment in an action begun December 5, 1887, by Dixon & Tillotson, for the foreclosure of such mortgage, which judgment was rendered February 6, 1888, and directed the sale of the mortgaged property; 3. Sheriff’s deed, dated February 8, 1889, made to plaintiff Dixon as purchaser of the property at the sale under such judgment.
But on September 15, 1880, several years before the mortgage to which plaintiff traces his title, Hoffman mortgaged to one Elsen and others the land described •in said patent to him—the “Hoffman placer claim”— and all the appurtenances thereto, to secure certain indebtedness to fall due May 1, 1881. In 1885 the mort
It may be, as contended by plaintiff, that prior to the acquisition of title to the ditch by Hoffman in 1875, it constituted an independent property, disassociated from the land over which it passed—an easement in gross (See Coonradt v. Hill, 79 Cal. 590); yet as such it was a servitude upon the land (Smith v. Hawkins, ante, p. 122; Ware v. Walker, 70 Cal. 595; Civ. Code, sec. 802, subd. 5); and when Hoffman became the owner of both ditch and lands the servitude was, for the time such unity of title might continue, extinguished. (Civ. Code, 805, 811; Gould on Waters, sec. 318.) Assuming, as we may, and this is probably the view more favorable to appellant, that Hoffman was the owner of the Smith claim in 1880, when he mortgaged the Hoffman claim, then the ditch, an artificial watercourse apparently necessary to the working of both claims, was an appurtenance to each of them. (Civ. Code, 662; Crooker v. Benton, 93 Cal. 365; Standart v. Round Valley etc. Co., 77 Cal. 399; Fitzell v. Leaky, 72 Cal. 477; Farmer v. Ukiah Water Co., 56 Cal. 11.) The title of a purchaser at a sale made under foreclosure of a mortgage has relation to the date of the mortgage (Horn v. Jones, 28 Cal. 194); hence, by the execution of the mortgage of
The judgment and order appealed from should be affirmed.
Vanclief, C. and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Temple, J., Henshaw, J.