140 P. 591 | Cal. | 1914
The appeals are from the judgment and from an order denying a new trial. The appeal of the Kerckhoff-Cuzner Mill and Lumber Company is taken separately from that of the others, but both appeals are presented upon the same transcript.
The case involves the land embraced in tide land location No. 68. First payment was made in 1882 and the last in the year 1890. The patent was issued therefor to William H. Banning on October 16, 1894. It is all within two miles of Wilmington.
The action is to quiet title to the entire tract of land embraced in the patents. A part of the land embraced in this location was involved in L.A. No. 3077, People v. Banning et al.,ante, 643, [
After the rehearing was granted in this case from the decision rendered therein on December 20, 1913, the appellant Kerckhoff-Cuzner Mill and Lumber Company waived and abandoned all claim it may have to the small parcels of tide lands adjoining the aforesaid swamp land and which were included in its possession as above stated, reserving only its rights under any valid wharf franchises over said tide lands, and thereupon the parties submitted the cause upon the arguments already made. Upon this waiver the judgment should be against the defendant with respect to said tide lands. The judgment here will follow the judgment in L.A. No. 3077 aforesaid.
It is therefore ordered that the judgment against all the defendants except the Kerckhoff-Cuzner Mill and Lumber Company, and the order denying a new trial as to all, be affimed.
The judgment against the Kerckhoff-Cuzner Mill and Lumber Company is reversed and as to that company the cause is remanded with directions to the court below to enter judgment that the plaintiff take nothing against the said defendant with respect to the land which the court in the eleventh finding declared to have been in the possession of said defendant for more than ten years next before the beginning of this action and to be above the line of ordinary high tide, and that said defendant remain in possession thereof; and that said Kerckhoff-Cuzner Mill and Lumber Company recover its costs. *653