The herald., 1893-09-29
THREE LEGAL DECISIONS FILED,
nThe Supreme Court and Orange
County Supervisors.
They Must Furnish Suitable Room
for a Law Library.
An Interesting Partition Case-A Real
Estate Sale Rescinded by Judge
,te shaw who Decides Some
~ Mooted Law Points.

CVNhty chcos shO uPini"h W eH~ S~'~A '
being received yesterday by Mr.. Sesnon,
deputy clerk OF this district.
The case 10 The Board of Law Library
Trustees Of Orange county VS., The
Board OF Supervisors Of Orange county.
1t was an application for writ OF
mandate to compel the supervisors to
provide suitable quarters for law
library.
The petition alleged the establish
msnt OF the library as provided by the
statute; that there is no suitable room
(, for IT.; that the supervisors provided
some shelving, enclosed by doors, upon
which the books were placed in large
room 100 feet by 25 feet, which is used
by the principal county officers OF the
county for the performance OF their
official duties, and also for the meetings
of the board Of supervisors; that the
room has no partitions and generally
that access to the books is obstructed
and that they cannot be consulted with
reasonable convenience.
The trustees also alleged that the su-
pervisors passed an ordinance May 5,
1891, making the act to establish law
libraries applicable to Orange county ;
and that May 16, 1893, they repealed
that ordinance, and refuse to provide q
suitable room upon demand.
To defeat the application for writ,
the supervisors insist that the act of
1891 is unconstitutional; that they re-
pealed the ordinance bringing the
county within its provisions, and that
the room furnished is sufficient.
The supreme court says that the
legislature had the power to provide
that the counties should come within or
remain without the provisions of the
act as the boards Of supervisors might
determine, and that the constitutionali-
ty of the law was established in the case
Of People vs. McFadden, involving the
constitutiouality OF the act creating the
county of Orange.
They also say that it is plain that the
attempted repeal OF the ordinance de-
claring Orange county within the pro-
visions of the act was of no avail. When
the county once came within the pro-
visions Of the act, it was there for ell
purposes, and it cannot evsde the force
and effect of the statute In any different
manner. or to any greater extent, than
1t can escape the force and effect of any
other statute OF the state. If 1t could
do 90 In this instance it has the power
to disorganize, for 1t was created under
an act involving the same principle.
The court says that from the facts re-
cited 1t has no hesitancy in saying that
5 the room used 90 q library room Ia not
sufficient, and not such as iH contem-
plated by the statute; the board should
provide suitable library room, and it
is ordered that the writ Of mandate
issue.
A PARTITION CASE.
In an action in partition. the case of
John M. Barker ct al. vs. Teofilo Barker
ct al, Judge Van Dyke yesterday in
overruling demurrer to the complaint
fled short opinion.
In the answer of defendants it was set
forth that ]. s. Barker and his wife, in
December, 1854, settled upon the land
In question with the intention OF acquir-
ing title from the United States. Itwas
unoccupisd public land: They resided
on it until 1868, when Mr.. Barker died.
He left surviving him as his hei.s his
widow and the plaintiffs, Theodosia, Te-
oilo, Isabel and Eloisa Barker, his chill
dren.
They all continued to live on the land
until 1870, whom Mrs. Barker married
the defendant, Juan Abila. Thsy all
lived.there afterwards, and the defend
ant Mardomisno Abila is a daughter by
the second marriage.
Mrs. Abila died in June, 1872, and
left ss her heirs the children by her
first husband and her second husband
and their daughter.
July 8, 1878, John M. Barker, one OF
]. 8. Barker's cons. acting in behalf of
all the heirs, proved up on the land and
received receivers certificate for it, go
thst,the equitable title 10 in the heirs.
The defendants, as heirs of the widow
Of J. 8. Barker, are alleged to be enti-
tied to an undivided interest in the
land. The plaintiffs interposed o de-
murrer to these answers.
The question to be determined was
e Who are the heirs of J. S. Barker, de-
ceased? The plaintiffs contend that
only his children are. but the court rules
that in this state the surviving wife 10
an heir as well as the surviving chill
dren.
The plaintiff also claimed that the
land was not subject to pre-emption.
The court holds that the plaintiff having
proven up presumption claim as one Of
the heirs is eetopped from denying that
the land was subject to pre-. 6mption or
that he took the title as one of the heirs
for himself and in trust for the others.
The demurrer is therefore oqerruled and
the defendants are permitted to amend
by striking out the words land CROSS
complaint" wherever they occur, 80 as
to allow the pleading to stand az an ans
wer.
LAND SALE REscNDED.
In the case Of Hutchison vs. the Pa
ci6c Land Improvement company, an
sction by the purchaser to rescind a sale
Of real estate and recover the price paid
for it, Judge Shaw yesterday gave judg-
ment for the plaintiffin accordance with
IN opinion fled.
The ground of the action was alleged
fraudulent misrepresentation made by
the agent OF the defendant whereby the
plaintiff was induced to bny. The evil
dence showed that most OF the repre-
sentations were made as alleged, that
they were material and false and that
they did induce the plaintiff to make
the purchase.
It also appeared that at the time the
plaintiff bought the land it was worth
IN the market what he paid for 1t, that
Tor . few months it increased iu value
and then depreciated until it is almost
worthless.
The defendant claimed that as it was
worth all the plaintiff paid for 1t at the
time, ne WAS not damaged and cannot