Pierce v. Felter — 53 Cal. 18

Majority

p. 18

[No. 5989.]

HENRY PIERCE v. A. J. FELTER et al.

Headnote

Estate less than Estate in Fee. — Under the Code of Civil Procedure, see. 738, the owner of an estate or interest in land less than an estate, in fee can maintain an action to determine an adverse claim made hy another person.

Appeal from the District Court of the Eighteenth Judicial District, San Bernardino County.

The plaintiff, as the lessee of certain agricultural lands, brought this action, alleging in his complaint that he had a leasehold estate for four years ; that Little Creek flows through the premises ; that the defendants adversely claim some interest in the premises and in the use and flow of the water; that such interests were without foundation in law; and he prayed that the Court so decree. The defendants had judgment of nonsuit, and the plaintiff appealed.

H. C. Rolfe, for Appellant, relied upon sec. 738 of the Code of Civil Procedure.

p. 19

Waters & Swing and C. W. C. Howell, for Respondents, argued that a mere adverse claim cannot injure a tenant; that the injury is to the inheritance, and that without an attempt to disturb the tenant he cannot complain, as he is not damaged.

The only question presented in this case is whether the owner of an estate or interest in land, less than an estate in fee, can maintain an action for the determination of an adverse claim made by another person. We think that he can. The Code of Civil Procedure (sec. 738) provides, in terms, that an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.

We are unable to see any reason why the benefit of this statute, remedial in its character, should be confined to estates in fee, when the words employed by the Legislature embrace every interest or estate in lands of which the law takes cognizance.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith.