64 Cal. 57 | Cal. | 1883
Action to quiet title. It appears from the record that “by arrangement of both parties made in open court, six special issues were framed to he presented to a jury then and there impaneled to answer the same by their verdict as advisory to the court.55 Afterwards the jury returned answers to the issues. The cause was then proceeded with, and after being argued and submitted to the court for decision, the court made and filed findings of fact and conclusions of law; and it is insisted, on behalf of the appellants, that, as the findings of the court upon some of the material issues are contrary to the find
The findings of the court below upon the issues are, with one exception next to be noticed, full, and, in our opinion, sustained by the evidence. We would, therefore, affirm the judgment and order, but for the fact that the defendant in its answer set up ownership in itself of a certain water ditch, referred to in the record as the “upper ditch or canal,” together with the right of way therefor through that portion of the land described in the complaint, which is found and adjudged to be the property of the plaintiffs. On the issue made as to this question, the court below found that the ditch in question was completed in 1871 (more than five years before the commencement of this action), at heavy cost, and that it “was constructed, maintained, and used, including a strip fifteen feet wide on each side of the center line thereof .... for the purposes of irrigation .... with the knowledge of the plaintiffs and their grantors, and without any objection or opposition thereto on their part, and with the active assistance of divers of said plaintiffs.” With this finding as its basis, the court below adjudged “that the defendants arc the owners of and entitled to the possession of and the right to maintain the upper canal of the Riverside Land and Irrigation Company, and to use a strip of land fifteen feet wide on each side of the center of said canal therefor.”
The finding did not determine the ultimate fact in issue, and is not sufficient to sustain that part of the decree above quoted. The learned judge who tried the cause and rendered the decree
We have been cited to no authority, and know of none that holds, that the bare fact that the ditch was constructed with the knowledge of the plaintiffs and their grantors, and without objection on their part, though at heavy cost, is sufficient to operate an estoppel. “ There must be some degree of turpitude in the conduct of a party before a court of equity Avill estop him from the assertion of his title—the effect of the estoppel being to forfeit his property, and transfer its enjoyment to another.” (Biddle Boggs v. Merced Mining Co. 14 Cal. 368.)
For the error committed in the particular last mentioned the judgment and order must be reversed.
The point made for the respondent, to the effect that appellants are estopped from questioning the correctness of the judgment because of the voluntary receipt of the costs awarded them by the judgment, is not Avell taken. The costs are but an incident of the relief given the plaintiffs, the receipt of Avhich does not come Avithin the rule invoked by respondent. As, however, AAre find it necessary to re\rerse tlie judgment by virtue of Avhich they received the costs, it is but right that the amount of costs so received, to Avit, $2,337.32, Avith legal interest from the date of the receipt, be returned to respondent, to the end that the status quo be restored. The poAver of this court thus to order is expressly given by section 957 of the Code of Civil Procedure.
It is therefore here adjudged that the judgment and order of the court below be reversed, and the cause remanded for a new
Thornton, J., Shakpstein, J., Mybick, J., McKee, J., and McKinstby, J., concurred.