The record-union., 1891-01-13

/
but the defendant, in order To defeat the plain
tin IS claim respecting it, testified as follows:
"The written declaration | gave Carpenter
/ embraces all the land described in the COM
| plant, except the Gi0 acres in sections D and
| 8, township 81 south, L 0 east; that acquired
| III August afterwards. II he kept his agree
we may add, the Court found that lie FULLY
/ performed the agreement upon his part, and
this finding IS supported by The evidence.
! We advise that the Judgment and order be
affirmed. gibson. C.
| We concur:
| BELCIiER, G.
| VAN CLIEF, c.
TIE COURT.
| For the reasons given in the foregoing
| opinion, the Judgment and order are affirmed.
Filled January 3, ISe1.l
Appeal from superior Court, Alameda
County-tName of Judge does not appear.)
| For appellant, G.. w. Ianean.
| For respondent, ID. M. Connor
| DEPARTMENT TWO.
JAMES T. RYAN, Respondent,
VS.. MOL O62
] C'o. S. FITZGERALD, Appellant.
| This action of claim and delivery was for the
recovery OF the possession of certain horses
and colts and two mowers or their value, and
| damages for their taking ana detention.
| The defendant admits the taking of the
property as Il Constable under writ of exccu-
ton on q judgment against jeremiah Ryan,
| the assignee of the plaintih. (rr folio 22-31
The cause was tried by a jury, who returned
this verdict: I've, the jury IN the above en-
titled cause, find for the plaintiff the posses
sion OF the following property: The horses and
| colts described in the complaint, or its value
the sum OF 3 ,S25, with damages in the sum
| Upon that verdict u Judgment was rendered
for the plaintiff that he have and receive pos
session OF the property mentioned in the ver-
/ the value thereof in ease IL delivery thereof
cannot be had, and In case a delivery of any
| portion thereof cannot be had, then for the
a clih t,rp avf.-
| gcther with SIS. 50 damages and for costs
taxed at $40 So" From this Judgment an
appeal is taken on the Judgment roll, and the
appellant claims u reversal thereof. because:
The verdict IS uncertain in this: 1t does
not provide for n delivery of the property 10
the plaintiff, if delivery can be had and does
| not, nor does the judgment, state for what the
| damages are given. The complaint claims
damages for taxing rs well as for detention
Damages for detention onlyare permitted, and
so far as appears the'damagcs may have been
awarded for the taking only" Appellant's
| p. and A., p. 2)
II was unnecessary that the verdict should
| have provided for any delivery OF the prop-
! erty, if such could be had. When the jurv
found the right of possession to be In the
plaintiii, then Inc conclusion of law followed,
as provided in Section G67 of the Code of Civil
| Procedure, that he was entitled TO delivery if
IL could be had and IL not, To the value of the
property as found by the jury IN the alterna-
| tive; this the judgment must contain but not
| the verdict. FOR, as to the Judgment, the
| form of IL must he provided In the section of
1 the tDue OF C1Vll Procedure supra but Section
| 627 of the same code, which prcscribes what
the verdict of the jury shall contain REQUIRES
10 finding as to deiveryas all.
As to the second matter of objection, that in
| reference to the uncertainty of the verdict for
damages, whether IL is given for taking or de-
| tentioR. il may be said: That in an action of
the KIND In hand, damages may be claimed
and recovered for both taking and detention.
| (Arzaga VS.. Villaba. "a Pac Rep 65GD And
| the verdict being for q sum certain for dam
ages, not specifying which kind, will be pre-
Js. III
| damage. Again, the objection going to the
| form of the verdict should have been taken in
the court below, and it is too late to urge it
/ here. Campbell vs.. Jones. IL Cal 5l5l
1t Is urged further that because the Jury
found for the plaintiff for the possession of n
part OF inc property only, and us to the bal
ancc their verdict was silent, that Judgment
based thereon is void, rs not responsive To tho
issue raised by the pleadings that is the riohf
OF possession of the whole of the property
| sued for. '
Conceding that If such a verdict bad been
rendered ior the defendant, that IL would have
peen lhisuIiiclent TO support the Judgment,
unuer ihe rule laid down in Miller VS. Jcwett
! t66 Cal 2l6 81, yet the defendant here does mt
allege IN bis answer that the plaintiff has tho
possession OF any of the property, but that an
officer of the law has il under q writ i'm this
case (fol Isl. The plaintiff has only obtained
judgment for part of the property and has
no right to possession of the balance. There
| Is notning 10 show but that the defendant is
entitied thereto, and that ii cannot be with
| held from him. The verdict and judgement
mere being silent ms to the balance of the prop
med any further relief than he has obtained
and he is precuded from any further liti,
gation Win the defendant as to this balance
| Gray rs.tDougherty, % Cal 2771
| But i'll this ease the ccfendant has asked for
return OF the property, and it does not an
| pear thaI ne has given bond and sureties. who
have justified. and in that ease II woii ha r.o
been the Sherif's duty, under SECTION bi <
! Z. Z. T., TO have delivered the pro,,ertv to ~
plaintiff, and 1t must bepresunied that he has
cd, 81
| determined by the verdict and Judgment to
| be entitled to this balance of the propertv the
JUDGMENT here should be so modified as to re-
9ulre his return of it to the defendant. and in
other respects thejudgncnt should be affirmed
''i1a W. We '.as,o,.u 50 mu' ise tooTE, g.
BELcnEn, &C.
| HAYNE, G.
THE COURT.
Ordered the Judgment be modified in accord
ance with the views above expressed and 40
SO modified, the Judgment is affirmed. -
Filled January.5. 1911
| Appeal from Superior Court. San i,erparlino
County-C. W. G. Rowell, Judge.
] Tor appellant, p elan Waters & Gird, Curtis & OTIS
For respondent, Willis, Cole q Craig, Harris
DEPARTMENT TWO.
GEORGE MILLER, Respondent.
vs.
THE HIGHLAND DITCH COM NO. La, OH. 4
PANY EFT AL, Appellants
fia,ntllt was the owner of q tract of land
situated ahout one mile southerly from the
,7sth i1ernafalnQ range of mountains. part of
lne tract was In a high state of eIltivatson
coming out of said mountains and trending
towards PLAINTIFFS land but not reaching It. ;s
| q canyon called Baldridge Canyon. The
natural waters of said canyon would not fio,v
upon plaintih's land, but, us found by the
c9aht, would sr'read out the lower lands
,mis11oGt cu.ling any particular channel tho
tendency nf the now being to spread ont over,
tile sss.a lower lands north of plaintiffs pr,ni-
ses ana become absorbed in the soil. - R,,s tIa
| GM .enND