14 Cal. 544 | Cal. | 1860
Lead Opinion
delivered the opinion of the Court—Baldwin, J. and Cope, J. concurring.
The complaint in this case seeks a recovery of certain premises, situated within Sacramento County, as in an ordinary action of ejectment; and also, an injunction to restrain the commission of
The principal acts charged as trespasses, for the restraint of which the injunction is sought, consist in cutting, destroying, and carrying away, wood and growing timber, which are alleged to be of great value for farming, building, and other purposes, and to constitute the chief value of a portion of the premises.
Upon the answers of the defendants, and on their motion the injunction, originally granted on the complaint upon an order to show cause, was dissolved. To recover in the ejectment, the plaintiffs relied upon a grant from the Mexican Government to Win. A. Leidesdorff, from which they derive title. The grant was issued by the Mexican Governor, Mioheltorena, in October, 1844, and the claim under it was presented to the U. S. Board of Land Commissioners for confirmation, and was by the Board adjudged to be valid, and confirmed in June, 1855. The ease being removed by appeal to the United States District Court, the Attorney-General gave notice that the appeal would not be further prosecuted, and upon the stipulation of the District Attorney, in pursuance of such notice, ¡he claimants, by order of the District Court, made in April, 1857, had leave to proceed upon the decree of the Commission, as upon a final decree. The grant, with the accompanying papers, describes the land as lying on the American River, adjoining land previously granted to the colony of Sutter. The decree of the Commission confines the claim, under the grant, to a particular tract, describing it with specific boundaries. On the trial, the plaintiffs gave in evidence, without objection, the petition of Leidesdorff for the land, and the several
The point, that the nonsuit, being taken by consent, excludes the consideration of the exceptions, is untenable. The liberty reserved to move to set the same aside, conserved to the plaintiffs all their rights. The course pursued in this case is often adopted, when it is evident, from the rulings of the Court, that the plaintiff cannot recover, and a motion for nonsuit is not made by the adverse party.
The objection to the admission of the certified copy of the grant should have been overruled. The objection was not placed at the trial, on the ground taken in this Court, that the paper does not purport to be a copy of the original, and we must confine our consideration to the specific point urged in the Court below.
By Act of Congress the papers belonging to the United States Board of Land Commissioners were transferred, as stated by one of the witnesses, to the custody of the Surveyor-General for California in 1856; and by the first section of the Act of the
The certificate of the Surveyor-General in the present case is that the paper “ is a true and accurate copy of a document” on file in his office. The objection might have been taken that the certificate does not purport that the paper is a copy of an original document, but, as we have observed, no such objection was urged; on the contrary, it appears to have been conceded on the trial that the document referred to -was the original grant, and to show that such original was on file in the office of the Surveyor-General, the witnesses were examined. This being the case, the ruling of the Court was clearly erroneous. The certificate states the paper to be a true copy, and thus complies, in form, with the provisions of the statute.
On what ground the final decree of the Commission and the order of the District Court were held to be irrelevant testimony, we are unable to perceive. The right of the plaintiffs to recover, is based upon the grant of the Mexican Government. The decree of the Commission, rendered final by the withdrawal on the part of the United States of any appeal therefrom, is not only conclusive evidence of the validity of such grant, and of its recognition by the United States, but also of the location of the specific quantity granted. Against its effect, neither the government, or any parties claiming under the government, could ever assert any rights. So far, then, from being irrelevant, the decree with its specific boundaries, and the order of the District Court granting leave to the claimants, under the stipulation of the officers of the government, to proceed thereupon as upon a final decree, were, in the highest sense, relevant and material. They were, in fact, taken in connection with the grant, conclu
It follows, that the judgment must bo reversed, and it only rey mains to consider the question whether the injunction was properly dissolved.
It appears that, upon filing the complaint, an order was issued to the defendants, to show cause why an injunction, as prayed for, should not be issued, and upon the return of the order cause was shown, which being deemed insufficient, the injunction was granted. Subsequently, upon the filing of the answer, a motion for dissolution was made and sustained. In its ruling in this respect the Court below erred. By the statute the right to a temporary injunction pending the action is considered as adjudicated by the decision at the hearing upon tho order to show cause. The remedy of the defendants in such case, when the right to apply for dissolution upon the filing of the answer is not expressly reserved, is by appeal. The privilege of moving for dissolution, upon the filing of the answer, is limited to cases where the injunction is originally granted without notice to the adverse party. (See Practice Act, Sec. 118.)
In the present case no question is made as to the right of the plaintiffs to an injunction upon the undenied allegations of the complaint. In our judgment the right to the preventive remedy was unquestionable. The cutting, destroying, and removing, of growing timber on the premises in controversy constituted, without other matter, sufficient ground for the issuance of the writ.
The judgment must be reversed and the cause remanded for a new trial, and the injunction must be restored until the final determination of the case, when the propriety of dissolving it,
Ordered accordingly.
Concurrence Opinion
On petition for rehearing, the following opinion was delivered by Field, C. J.—Baldwin, J. and Cope, J. concurring:
There are no considerations presented in the petition for a rehearing, which can load to a reversal of our former judgment in this case. It is of no consequence that the document, of which a certified copy was offered in evidence, was annexed to the deposition of Sutter, before the Land Commission—it being conceded that such document was the original grant. The copy, under these circumstances, was as admissible as the original would have been, had it been produced. No point was made, either in this Court, or the Court below, as to the admissibility of the original, without proof of its genuineness and due execution, and no opinion was required or expressed thereon. The statute does not authorize copies to be received and read, when the originals themselves would be inadmissible. It only places the copies, as evidence, on a footing with the originals; in other words, it obviates the objection to the copies as secondary evidence. In this case, it being conceded that ,the document was the original grant, and no point being taken upon the admissibility of such original, the copy should have been received.
The plaintiffs are an incorporated company, under the Act of April 14th, 1853, by the 4th Section of which they are authorized “to purchase, hold, sell, and convey, such real and personal estate, as the purposes of the corporation shall require.” Whether or not the premises in controversy are necessary for those purposes, it is not material to inquire; that is a matter between the government and the corporation, and is no concern of the defendants. It would load to infinite inconveniences and embarrassments, if, in suits by corporations, to recover the possession of their property, inquiries were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity. (See The Banks v. Poiteaux, 3 Rand. 136, and Angell & Ames on Corporations, 113—121.)
Rehearing denied.