The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-07-25
4 FRESNO DECISION REVERSED.
Forty Acres Not Necessary for a
Mechanics Lien.
The Statute Only Contemplates Enough
Land Included for Use With
the House.

The Supreme Court has reversed the
judgment and order denying new trial
in the case Of d. A. Cowan and others
against Annie t. Griffith and the Fresno
Loan and Savings Bank. The action was
to foreclose certain mechanics and ma
tsrial mems liens. Plaintiffs recovered
judgment, and the Fresno Loan and Say
ings Bank appealed.
The building upon which the liens were
foreclosed was a dwelling house, stu
ated some five miles from Fresno, land
the only question Of any importance in
volyed in this appeal" says the court,
relates TO the amount of land necessary
for the convenient use and occupation of
this dwelling It is situated upon tract
of land described as lots q and q Of the
Easterby rancho, the entire tract contain
ing forty acres and each lot twenty acres.
After hearing evidence the court made
finding of fact to the effect that all the
land was necessary for the convenient
use and occupation Of the dwelling house,
and ordered the same to be sold"
Continuing, the Supreme Court says:
For the convenient use and occupation
of this dwelling house it Is very evident
that forty acres of land is not necessary.
Inc STATUTE uOeS uOt CCuteIl piaso I'LL
thing of that kind. 1t means exactly
what it says. A sufficient space around
the dwelling for its convenient use and
occupation. 1t does not contemplate that
sufficient land around the dwelling house
TO support the owner while living there
be set apart. Very possibly forty acres
would not be sufficient for such pur-
pose; and, if the dwelling-hOuse was sit
uated upon O section of farming land,
upon the same line of reasoning as has
been here adopted, the entire section
should be set apart. Neither the produc-
tiveness or -prOductlVeneSs OF the
soil. nor the profit derived from the Guilt
walton Of the land are material elements
to be considered in determining the
amount of land to be set apart with the
dwelling house, under this section OF the
Code of Civil Procedure. If this dwell
ing-house was situated upon tlve-acre
lot, and the remaining thirty-hve acres
of this tgaCt was situated near, but upon
the opposite side Of public highway, 1t
could hardly be cOntendsd that the entire
! forty acres were necessary for the conve-
nient use and occupation OF the building;
| yet it is wholly immaterial upon the
question here presented that the tract is
in one body, rather than divided, as sug-
| gested, by public highway.
1.-THE use of this land is foreign to the
owners purpose. except that it may fur
nish him an income by which he may
sustain himself in the dwelling. The
statute simply allowed him the dwelling
house and quantity OF land around 1t
sufficient for its convenient use. AS to
/ his income or source of support, the stat
ute does not concern itself. 1t is not our
! purpose 10 indicate to the trial court the
! quantity of land necessary for the con-
| venlent use and occupation Of this dwell
ing house, but it is entirely evident that
forty acres is too much, and we think it
equally evident that an entire twe1ty-one
acre tract is too much. We see no objec-
tons to the complaint Of sufficient merit
to demand reversal of judgment
"For the foregoing reasons the judg-
ment and order are reversed, and the
cause remanded."
The decision is by Justice Garou.te,
and is concurred in by Justices Van Fleet
| and Harrison.