West v. Smith
52 Cal. 322
Cal.
1877
Check Treatment

The legal rights of the parties as to the ownership of the crop and possession of the northeast one-quarter were in dispute, and undetermined at law; an injunction, therefore, would not lie. (Middleton v. Franklin, 3 Cal. 238; Waldron & Joiner v. Marsh et. al. 5 Cal. 119; Oates v. Teague, Oct. Term, 1856; Leach v. Z%, 37 Cal. 643; N. O. & S. O. Co. v. j&fcZ, 37 Cal. 283; 7 Johns’ Ch. Eep. p. 315; 4 Johns’ Ch. Eep. p. 21; Moore v. Orí?, 15 Cal. 204.)

A. A. Hart, for the Eespondent.

The plaintiff could not have maintained ejectment against defendant, because the acts of the latter did not work an ouster or disseizin. (Tyler on Ejectment, 79, 82, 83, 85; Code Civil Procedure, 323.)

The plaintiff, being in the possession of the land, was the owner of the growing crop. (Page v. Fowler, 39 Cal. 412; Pennebecker v. McDougal, 46 Cal. 661.)

In this case the defendant is not shown by the record to have ever been in possession of the land. The plaintiff had his volunteer crop in, and ivas in possession of the land, and the defendant went there and sowed a few sacks of grain over plaintiff’s volunteer. The grain had not been cut or harvested at the time the action was begun. In such a case the crops partake of the realty, and belong to the person who is in the rightful possession, and is entitled to the use and occupation of the land. (Corcoran v. Doll, 35 Cal. 476; McLean v. Bovee, 1 Am. Eeports, 185; Powell v. Klein, 15 Am. Eeports, 235.)

By the Court :

Action to enjoin the defendant from harvesting and removing the crop of grain growing and standing upon the tract of land described in the complaint.

There is sufficient evidence in the record to sustain all the material averments of the complaint.

Neither party claimed title to the land, but it was either in *325the United States or had been granted to a railroad company; and the title to the growing crop, as between the plaintiff and defendant, depended upon the question as to which of the parties was in the possession of the land. The evidence, therefore, to the effect that the defendant or a third person claimed the land, or that a third person lived upon the land, or that the defendant had executed a lease of the land to a third person, was irrelevant and immaterial, and the Court did not err in excluding it.

The plaintiff having alleged and proven that the title to the standing grain was in himself, and that the defendant is insolvent, is entitled to an injunction to restrain the defendant from, harvesting and removing the crop. (Hicks v. Compton, 18 Cal. 206; Corcoran v. Doll, 35 Cal. 476; Hilliard on Injunction, p. 319.)

J udgment and order affirmed. Remittitur forthwith.