98 Cal. 487 | Cal. | 1893
This litigation arises over an alleged right by plaintiff to the use of the waters of a certain spring, and the right to maintain pipes for the enjoyment of such use. The complaint in effect alleges “that the plaintiff is the owner of a certain tract of land in Marin County; that when plaintiff bought said land there was situated upon the adjoining land of the Old Sausalito Land and Dry Dock Company, plaintiff’s grantor, a spring of water; that this spring was and is the only available water supply for the use of plaintiff’s property; that plaintiff specially contracted and agreed with the Old Sausalito
This action was brought in the city and county of San Francisco, and the subject-matter of the action is all situated in the county of Marin. Defendant demurred to the complaint upon the ground that the court had no jurisdiction of the subject-matter of the action, by reason of the fact that it was brought in the city and county of San Francisco, instead of the county of Marin. The point made is jurisdictional, and if it has merit the demurrer was not necessary. It is provided in section 5, article VI. of the constitution, “that all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens upon real estate, shall be commenced in the county in
Upon a careful examination of the complaint in the case of Fritts v. Gamp, 94 Cal. 394, we find it in all essential particulars similar to the complaint in the case at bar. The cause of action appears to be the same, the prayer for relief is the same; and that action was dismissed upon the ground that the.court ;had no jurisdiction, it being brought in the wrong county, thereby violating the provision of the constitution heretofore quoted; and upon the authority of that case we think the court had no jurisdiction over the subject-matter of the present action.
Judgment and order reversed, and cause remanded, with directions to the lower court to dismiss the action.
Harrison, J., and Paterson, J., concurred.