The herald., 1894-07-31
TWO SAN DIEGO CASES.

Standing Land Dispute Settled.
The supreme court has settled the
case Of B. D. Clugston. respondent, We.
g. G. Gs.retson, appellant, San Diego
case, BY affirming the decision OF the
superior court.
This was an action for damages
brought by Mr.. Clugston sgainst Gar
retson on account of remarks made
about him by the latter in connection
with the setting on fire of the ware
house yard of the Pacific Wood and Coal
company at San Diego, March 7. 1898.
Afterwards Mr.. Garreteon said to eev-
eral people that Clugston had set FIRE to
the yard and had made good job OF it /;
that he wss seen going out OF the yard
10 or 15 minutes before the fire broke
out.
Garretson admitted that he used the
language attributed to him. At that
time litigation was pending between the
plaintiff and the defendant and others.
over an election OF board of directors
of the Pacific Wood and Coal company,
Involving the right to the possession
and control of the yard, and Garrstson
with his associates had acquired its pos
session.
In his answer he alleged that by rea.
son of this Clugstcn was greatly exasper-
sted and made numerous threats. His
defense was that he believed what be
said about Clugston was true.
The suit WAS for $4,000. The jury
gave Clugston a verdict and assessed
his damages at $500, the defendant not
being found guilty OF malice.
On the appeal the appellant claimed
that error was committed by the court
in overruling defendants demurrer, the
words not being actionable, as the words
only charged Clugston with setting fire
to q yard, and that is not arson. The
supreme court sustains the lower court
on this point, and on objections to cer-
tain instructions and affirms the judg-
ment.
The supreme court has also affirmed
the decision Of the San Diego superior
court in the case of the people ex rel.
Henry Schwartz, appellant, vs.. Frank
Temple ct al, respondents. The action
was instituted to have two state patents,
one for the east half and the other for
the west half of certain 18th section
of land in San Diego county, set aside so
far as they affect the south half of the
section, upon the ground that they were
issued without authority of law and are
void. The superior court gave judgment
| for the defendants.
| 1t appears that Henry Schwartz made
| application May 10. 1869, to purchase
| the south half Of the section OF land in
question and his application was approx.
| ed by the surveyor-general July 14th.
Schwartz paid the the treasurer of San
Bernardino county the requisite 20 per
cent OF the purchase money and the
| fret years interest on the balance, also
$3 for the certificate OF purchase issued
to him. In the application and order OF
approval the land was described as be-
ing in San Bernsrdino county and it was
not found to be in San Bernardino
county until survey of the county line
in 1880 or 1881.
Schwartz paid interest ON the balance
OF the purchase money until 1874 and
then paid no more, and in 1876 the dis
trict court OF San Bernardino county
granted judgment of foreclosure against
his interest, Schwartz letting it 90 by
default
Afterwards in 1883 Frank Temple
bought the west half, and W. W. Aver.
i'll the east half OF the section, and
patents were issued to Temple and Thos.
w. Carter, to whom Averill had as
signed his purchase.
Long after this, in 1889. Schwartz got
an order from the superior court OF San
Bernardlno county to set aside the judg-
ment OF foreclosure against him. on the
ground that the court never acquired
jurisdiction, as no affidavit or order of
court was ever made for the publication
OF summons and no service was ever
made on defendant. The superior court
declared this order void, and the su-
preme court affirmed the decision.