served on the owner or occupant; and thereupon such party may enter on the property with necessary surveyor and assistants, and make such survey and measurements; but if any unnecessary injury be done to the property he is liable therefor.35 The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon; or, after a sale on execution before a conveyance.36 When real property has been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may after his estate becomes absolute, recover damages for injury to the property by the tenant in possession after sale and before possession is delivered under the conveyance. 37 An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action.38 In an action respecting mining claims, proof must be admitted of the customs, usages or regulations established and in force. at the bar or diggings embracing such claim; and such customs, usages or regulations, when not in conflict with the laws of this state, must govern the decision of the action.3 39 But such customs, usages and regulations, so far as they are in conflict with the laws of the United States, are invalid.40 ACTIONS FOR PARTITION OF REAL PROPERTY. An action for the partition of real property is an action in equity. The common law remedy, the writ of partition, did not afford an adequate remedy, and has fallen into disuse.41 The former remedy in equity did not authorize the court to order a sale of real property and make a division of the proceeds of such sale, if any one of the parties objected thereto.42 In California and in some of the other states, by statute such sale and division of the proceeds of the sale may be made. 35. Code of Civil Procedure, Secs. 742, 743. 39. Code of Civil Procedure, Sec. 748. 40. Original Co. etc. v. Winthrop Mfg. Co., 60 Cal. 631. 41. 3 Pom. Eq. Jur., Sec. 1386. 42. 3 Pom. Eq. Jur., Sec. 1390. In the partition of chattels, a sale of the chattel and a division of the proceeds of such sale among persons who were the owners as tenants in common of the chattels has long been a matter of equity jurisdiction.43 Partition of an entire tract of land cannot be by piecemeal.44 The court in its decree in an action for the partition of real property may allot to a cotenant that part of the common land upon which he has erected valuable improvements, and can allot to him any specific tract which he has undertaken to convey in severalty, if this can be done without any material injury to the rights and interests of the other cotenants.45 The judgment in an action for a partition ascertains, sets apart and allots to each of the parties of that action a specific portion of the land partitioned, to be owned by him in severalty, and after such allotment by judgment, the other parties to the action have no interest in the portion of the land so allotted, and the judgment of the court making such partition is final and conclusive on the parties to the action, unless reversed on an appeal. 46 The pending of an action for the partition of real estate prevents the statute of limitations from running, as to any portion of the land in favor of a person who is a party to that action.47 A judgment in an action for the partition of real estate severs the unity of possession but does not vest in either of the cotenants a new or additional title.48 In California actions for the partition of real property are regulated by statute,49 and no useful purpose would be subserved by a repetition of the provisions of such statute. ACTIONS FOR THE USURPATION OF AN OFFICE OR FRANCHISE. The writ of quo warranto was at common law a writ for the king, against him who claims or usurps any office, franchise or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in a case of non-user 43. 3 Pom. Eq. Jur., Sec. 1391; Baughman v. Reed, 75 Cal. 320. 47. Christy v. Spring Valley Water Co., 97 Cal. 21. 48. Wade v. Deray, 50 Cal. 380. or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such franchise. That writ has fallen into disuse, and the modern method in England has been by a prosecution by information, in the nature of a writ of quo warranto, filed by the attorney-general in the court of the king's bench. Such proceeding by information is in the nature of a criminal prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the crown; but the fine imposed was merely nominal.51 Under the constitution of California of 1879 the Superior Courts and their judges have power to issue writs of quo war ranto. The power of the court under a writ of quo warranto is quite as broad as such power is under the statute of California, relating to an action for the usurpation of an office or franchise.52 Under the statutory proceeding in California when the action is brought on the information or application of a private party, the attorney-general may require from such private party an undertaking with sufficient sureties, conditioned that such party or sureties will pay any judgment for costs or damages recovered against the plaintiff, and all costs and expenses incurred in the prosecution of the action.53 It is the duty in California of the attorney-general to bring such action when he is directed by the governor so to do.54 Under the power given by the constitution of 1879 to Superior Courts to issue a writ of quo warranto, such writ, or a proceeding in the nature of such writ, may be issued to oust a person from the office of supervisor.55 In the proceedings by the state in the nature of a quo warranto to deprive a corporation de facto of its corporate charter, or to determine that the charter under which it claims its powers is not a legal charter, such de facto corporation is a proper and 50. 3 Bl. Com. 262. 51. 3 Bl. Com. 264. 52. People v. Dashaway Association, 84 Cal. 114. 53. Code of Civil Procedure, Sec. 810. 54. Code of Civil Procedure, Sec. 803. 55. People ex rel Smith v. Bingham, 82 Cal. 238. necessary party. 56 If the relator claims the office as against the incumbent, the court may not only determine the right of the incumbent to the office, but that of the relator also, and may render judgment that the defendant deliver up to the relator the office.57 ACTIONS AGAINST STEAMERS, VESSELS AND BOATS. The statutes of California have provided a remedy by an attachment suit against the owner of a vessel in which the vessel can be attached in the cases specified in the statute. These statutory provisions are full and explicit. 58 Such actions are not to enforce a maritime lien which can be enforced only in a court of admiralty jurisdiction. In an action to enforce such maritime lien the vessel is the defendant, and the action is one in rem. The action brought under the provisions of this statute is an action against the owner of the vessel, and it is not an action in rem except so far as the vessel is taken possession of, and held under and by virtue of the writ of attachment issued in the action. In case a person has a maritime lien against the vessel and seeks to enforce such lien in a court of admiralty jurisdiction in an action against the vessel, such vessel can be taken possession of under proceeding in such action notwithstanding the vessel had previously been taken possession of under proceedings in such attachment suit. 56. People v. Gunn, 85 Cal. 244; People v. Montecito Water Co., 97 Cal 276. 57. People ex rel Dickenson v. Banvard, 27 Cal. 470. 58. Code of Civil Procedure, Secs. 813, 827. CHAPTER XIV. OF ACTIONS TO ENFORCE ASSESSMENTS IN MUNICIPALITIES AND OF ACTIONS TO ENFORCE ASSESSMENTS FOR RECLAMATION PURPOSES. 1 An assessment on lands in municipalities made for the purpose of improving streets and for constructing sewers therein is a municipal tax, but such assessment is not taxation within the intent and meaning of the 13th section of article XI of the former constitution of California.2 4 The power of a municipality to levy an assessment to defray the expenses of public improvements is given by the state legislature, although the state legislature cannot itself by a direct act exercise the power of levying such assessment. The state legislature cannot make valid an assessment for such purpose which was void; the assessments must be levied with uniformity and equality by some standard which will approximate equality and uniformity such as an assessment in proportion to the number of front feet in a lot in a municipality which fronts on the improve ment. In actions to recover such assessments strict compliance with the provisions of law authorizing them must be shown. Where a lot within the district liable to be assessed is omitted from the assessment, the whole assessment is void;8 unless the lot which was not assessed belonged to the United States, or to the state, or to the municipality." 1. Himmelmann v. Spanagel, 39 Cal. 389. 2. Chambers v. Satterlee, 40 Cal. 497. 3. Thompson v. Ruggles, 69 Cal. 465, 472. 4. Schumacher v. Toberman, 56 Cal. 508, 511; California Constitution, Art. XI, Sec. 12. 5. People v. Lynch, 51 Cal. 15. 6. Whiting v. Quackenbush, 54 Cal. 306. 7. Haskell v. Bartlett, 34 Cal. 281; Shipman v. Forbes. 97 Cal. 573; 9. Doyle v. Austin, 47 Cal. 353. |