case that he held the legal title as a trustee for the respondent; (3) that these facts alone would not entitle the plaintiff to enjoin the sale, but it must show that it had, subse legal title to the property, and that the appellants had notice of the fact at the time of the proceeding to enforce the street assessment. fences, and other improvements, but the title | it appears from the parol testimony in the thereto, so far as it appears of record, has remained in the individual name of said Alemany from the time of the execution of said conveyance to him until now. The complainant alleges the ownership of the respond-quent to the deed, become the owner of the ent in the property as follows: "And the plaintiff avers that the said land above particularly described was purchased by said Alemany for the use and benefit of the Roman Catholic church of the diocese of San Fran- The respondent claims that it has shown cisco, and was paid for with the money of the legal titie in it by adverse possession. said church; and that afterwards, and The court below so found. The question is, more than twenty years before the com- therefore, whether or not this particular findmencement of this action, said Alemany de- ing is supported by the evidence. The evilivered the possession of said land and prem-dence shows conclusively that the respondent ises to this plaintiff, and then and there this was a sole corporation; that the corporation plaintiff entered into and took the actual, was Joseph S. Alemany, Roman Catholic peaceable, exclusive, open, and notorious archbishop of San Francisco; that as such possession and occupation of said tract of archbishop he purchased the property for and land above particularly described under a with the money of the church, but took the claim of title exclusive of any other right, deed in his individual name; that as such and has ever since that time been in and archbishop he had and actually exercised exmaintained the actual, open, notorious, clusive control over said property, as fully as peaceable, exclusive, continuous, and adverse if he were the sole and individual owner possession and occupation of said land and thereof; that all improvements made thereevery part thereof, claiming to own and hold on, and use made of the same, were made at the same and every part thereof as its own, the instance of, and used under the exclusive under a claim of title in fee-simple absolute, direction and control of, said Alemany as exclusive of any other right, and adversely to such archbishop, as fully and completely as all the world, during all of which time said if he were the sole and individual owner of land was by the plaintiff fully protected by the property. There is no evidence showing a substantial inclosure; and said plaintiff or tending to show that any overt act was paid during all the time of such occupation done, as constituting a change of possession as aforesaid, and continuously, all the taxes, from Joseph S. Alemany, individual, to state, city, and municipal, which were lev- Joseph S. Alemany, archbishop. It is true, ied and assessed upon said land or any improvements are shown to have been made, part thereof." The court below found this and made with the money of the church, but allegation of the complaint in favor of the the improvements were made, and the money respondent. There is no evidence tending expended, by Joseph S. Alemany. The testo show that at the time of the proceedings timony of the archbishop shows this very to foreclose the street assessment the plain-clearly. After testifying fully to the imtiff therein had any notice that the respond-provements made upon the property, the use ent had or claimed any title or interest in made of them, and that they were made with the property except as such notice might be inferred from the improvements made upon the property and the uses made of it. The learned counsel for the respondent has, by one or two admissions in his brief, very materially narrowed the controversy upon this point. He says: "Of course, if a title stood of record in a trustee, the cestui que trust could not attack a judgment duly rendered against the trustee without notice, in the plaintiff, of the interest of the beneficiary." Again: "In his brief the counsel goes to the extent of citing authorities to show that the deeds which were executed by the Bernals to J. S. Alemany vested legal title in him as an individual or person. With the last proposition we entirely agree, and think there can be no doubt that the deeds originally vested the title in the individual and natural person, J. S. Alemany, though the parol evidence showed him to be a trustee only." We fully coincide with these views. Therefore we take it as fully conceded (1) that as a matter of record J. S. Alemany was the owner of the legal title to this property; (2) that the money of the church, his examination proceeds: "Question. Has this corporation any secretary? Answer. Yes, sir; that is, not as such,-not one specifically, especially for that. Q. It does not have a seal? A. Yes, sir. Q. Have you any trustees? A. The sole corporation has no trustees. Q. You have been the sole manager of that corporation, I suppose, from beginning to end, haven't you? A. I may say yes; but, of course, I have to take advice. I have to consult. I have to guide myself a great deal with counsel." Again, the following from the testimony of one P. J. Gray, a witness for the respondent, is equally convincing on this point: "A. Well, I was president of the college for five years. I went there in 1863, and I stopped there till 1868. Q. What would you say with reference to the management and control of that property by the corporation? A. It was all under the archbishop. It was all managed by the archbishop. I was only representing him.” Does this evidence show adverse possession in the respondent, such as is requirol to con The manner in which property is held and controlled by a sole corporation is well stated in Overseers v. Sears, 22 Pick. 128, in which it is said: "In all these respects the distinction between an aggregate and sole corporation, growing out of their different modes of constitution and forms of action, is striking and obvious. A bishop or parson acting in a corporate capacity, and holding property to him and his successor in right of his office, has no need of a corporate name. He requires no peculiar seal. He performs all legal acti under his own seal, in his own name and name of office. His own will alone regulates his acts, and he has no occasion for a secretary, for he need not keep a record of his acts; no need of a treasurer, for he has no personal property, except the rents and proceeds of the corporate estate, and these he takes to his own use when received. By-laws are unnecessary, for he regulates his own action by his own will and judgment, like any other individual acting in his own right." fer title, and such as could constitute notice | 332; 3 Wait, Act. & Def. 450; Cook v. Travis, of a transfer of title from the individual 20 N. Y. 400; Burrows v. Holt, 20 Conn. Alemany to Alemany the archbishop. We 459, 463. cannot think so. To constitute the possession adverse it must have been open, visible, notorious, and exclusive, and must have been retained under a claim of right to hold against the owner, and in hostility to his title. Thompson v. Felton, 54 Cal. 547. Unger v. Mooney, 63 Cal. 586. Here the owner of the legal title, as it appeared of record, was in the actual possession of the property, and, as the sole corporation, he was the beneficiary under the deed conveying him the legal title, and, as the respondent contends, he was also in possession as the adverse claimant, and holding in hostility to himself. So far as the title was concerned, he might have held it either as an individual or as the representative of the church; but the possession must have been by Joseph S. Alemany in person, in either capacity, and his possession in one capacity could in no way be distinguished from his holding in the other. "Where property vests in a bishop, parson, or other sole corporation, he holds it to his own use and benefit, whilst he holds the office, and afterwards the estate and the enjoyment of it go together to his successor, when established. The transmission of the estate is perpetual, but the beneficial enjoy ment changes at each succession." Overseers v. Sears, 22 Pick. 124; Weston v. Hunt, 2 Mass. 500. So he was equally entitled to the possession and control of the property, whether his holding was that of an absolute owner in his individual right, or of a trustee under an absolute deed; and his right to the possession was precisely the same as if the deed had been made to him as the archbishop in his corporate capacity. Fitzpatrick v. Fitzgerald, 13 Gray, 402; Perry, Trusts, SS 321-328. Such being the case, we cannot conceive of any theory upon which a title by adverse possession can be upheld under the circumstances of this case. One cannot hold in hostility to himself; nor can one holding in one capacity hold adversely to himself, claiming in another capacity. In the case of Heiss v. Vosburg, 59 Wis. 532, 18 N. W. Rep. 463, it was held that a priest, being in charge of a church as the agent of the bishop, the possession of the building There are other questions raised and elabwas, as a matter of law, in the bishop, al-orately argued, but, the question of ownerthough the congregation worshiped in the ship being the decisive one, we need not exbuilding, and paid the salary of the priest tend this opinion by taking up the other and the expense of keeping the property in points discussed. Judgment and order derepair, and maintaining services, and al-nying a new trial reversed, and cause rethough the committee of trustees aided the manded. priest in the management of the temporalities of the church. It must be presumed that Alemany held possession under the legal title vested in him by the deed; and, as the undisputed evidence is that he continued in possession, there was no actual change of possession or control of the property that could amount to constructive notice of any claim adverse to such title. Smith v. Yule, 31 Cal. 180; McCarthy v. Nicrosi, 72 Ala. It is claimed by the respondent that the use made of the property was sufficient to constitute adverse possession. The evidence shows that there was erected on the property a large brick building used as a college for the education of young men, chapel, dormitory, stables, and other out-buildings, and that these buildings were used as a college and for church purposes. The construction of such buildings, and the uses made of them, were not necessarily inconsistent with private ownership, nor were they inconsistent with the trust under which Alemany is claimed to have held originally; but, if they were, the occupation and use of the buildings and property are thus shown to have been by individuals, presumably members of the Catholic church, and not by the plaintiff. Such individual members of the church could not, by any use they could make of the property, acquire any interest in it that could avail the respondent in this action. As we look at this evidence, it was wholly insufficient to sustain the finding that the respondent was the owner of the property, and for that reason the case must be reversed. We concur: BEATTY, C. J.; PATERSON, J. ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO (A Sole Corporation) v. SHIPMAN et al. (No. 11, 893.) (Supreme Court of California. May 28, 1889.) WORKS, J. This is an appeal from an order refusing to dissolve an injunction. The questions presented are the same as in the case of Archbishop v. Shipman, ante, 830, (No. 12,100,) this day decided, and upon the authority of that case the order appealed from is reversed. We concur: BEATTY, C. J.; PATERSON, J. (79 Cal. 301) an action on the bond could probably not be maintained in a federal court at all. 3. But we think the court below erred in allowing as damages the item of $400 for attorneys' fees. The allowance of counsel fees in suits on injunction bonds, and in one or two other actions of a kindred character, is MITCHELL et al. v. HAWLEY et al. (No. exceptional, and it should not be carried be 11,987.) (Supreme Court of California. May 28, 1889.) INJUNCTION BOND-ACTION-ATTORNEYS' FEES. 1. In an action on an injunction bond it appeared that the attorneys for defendant in the injunction suit were paid $500 for all their services in the case; that they attempted to get the temporary injunction dissolved, but failed; that afterwards the injunction was ended by dismissal of the action because of a recent decision of the supreme court of the United States determining the issues against the plaintiff. It was not proved that there was any separate or distinct amount paid to the attorneys for the attempt to procure the dissolution. Held, that it was error in the suit on the bond to award $400 for attorneys' fees. 2. The fact that counsel fees are not allowed in the United States courts in actions on injunction bonds does not preclude recovery of such damages in an action in a state court on an injunction bond given in a United States court. yond the point to which former decisions have taken it. In the injunction suit in which the bond now before us was given, the attorneys for the defendants were given $500 in gross for all their services in the case. They made an effort to get the temporary injunction dissolved, but failed. Afterwards the injunction was ended by the dismissal of the action; and the action was dismissed because a recent decision of the supreme court of the United States, (Heald v. Rice, 104 U. S. 737,) made after the attempt to dissolve the injunction had failed, determined all the issues in the injunction suit against the plaintiffs therein. Whether or not attorneys' fees can be recovered at all for services rendered in an unsuccessful attempt to dissolve an injunction it is not necessary here to decide. In New York it was held that "having thus been unsuccessful in resisting the allowance of the injunction, there is no ground upon which the sureties can be required to pay these expenses," (Randall v. Carpenter, 88 N. Y. 293.) And in Allen v. Brown (5 Lans. 511) the court says as follows: "The MCFARLAND, J. This is an action to re-defendants' motion, before the trial of the cover damages on a bond for a temporary in-action on the merits, for an order vacating junction in an action in the United States the injunction, was denied. The referee corcircuit court. The judgment was for plain-rectly refused to allow the defendants any tiffs, and defendants appeal from the judgment, and from an order denying a new trial. The court found that plaintiffs were damaged by the injunction, generally, in the sum of $770, and that they were also entitled to the further sum of $400 for attorneys' fees in procuring its dissolution. Department 2. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge. M. A. Wheaton and G. E. Harpham, for appellants. Charles A. Shurtleff, for respondents. costs or counsel fees on that motion, for the reason that the expenses of an unsuccessful motion to set aside an injunction cannot be recovered, though the court afterwards decides that the plaintiff was not entitled to the injunction." Without now holding that such should be the rule here, it is sufficient 1. We have carefully examined the elab- to say that in the case at bar there was no orate argument of the learned counsel for ap- separate, distinct amount of money paid the pellants to the point that the evidence does attorneys for services in unsuccessfully atnot justify the court in finding the first item tempting to procure a dissolution of the inof damage of $770, but, after a close exami-junction, no special charge made for them, nation of the transcript and the views of and no sufficient showing in the evidence counsel, we find no reason for disturbing of a segregation and apportionment of a part that finding. It would serve no useful purpose to discuss that matter in detail. of the gross sum to those services. Bustamente v. Stewart, 55 Cal. 115. The cause is remanded, with directions to the superior court to modify the judgment by striking out the $400 awarded for attorneys' fees; and, in all other respects, the judgment and order are affirmed. We concur: SHARPSTEIN, J.; THORNTON, J. 2. We cannot agree with counsel in the view that in an action brought in a court in this state, on an injunction bond given in a court in the United States, counsel fees can, in no instance, be recovered as damages, because such damages are not allowed by the federal courts. Bondsmen, in such a case, cannot be held to have contracted with the understanding that a suit would be brought upon the bond, if at all, in a federal court, and that their liabilities would be fixed according to the view which that court might be supposed to take of the law. If, for in- COUNTIES-DEDICATION-LIMITATION OF ACTIONS. stance, the defendants here and the defendants in the injunction suit were all residents of California, which was probably the fact, v.21p.no.14-53 (79 Cal. 375) YOLO COUNTY v. BARNEY. (No. 12,834.) (Supreme Court of California. May 31, 1889.) Land purchased by a county, on which is erectsubd. 9, authorizing counties to build hospitals ed a hospital, as provided by Pol. Code Cal. § 4046, and "other public buildings," is dedicated to a public use, though under the succeeding subdivis- | herself or grantors has been since that time, fon the land may be sold; and while owned by the for about fifteen years, peaceable and continCounty the statute of limitations does not run in favor of one taking possession of it. In bank. Commissioners' decision. Appeal from superior court, Yolo county; C. H. GAROUTTE, Judge. Action by the county of Yolo against Margaret Barney, to recover certain land. Judgment for plaintiff, and defendant appeals. uous. A deed to the land was made to the plaintiff in 1863 by one Freeman, and duly recorded, and a quitclaim deed was also made from the same grantor to the defendant's grantor, one Sill, in 1867. The whole controversy seems determinable by ascertaining whether or not the land was dedicated to a public use when the hospital was erected thereon. If it was dedicated to Thomas & Hurst, for appellant. F. S. Sprague, (F. E. Baker, of counsel,) for re-a public use, then under the decision of the spondent. FOOTE, C. This action was brought by the plaintiff to quiet its title to a piece of land claimed adversely by the defendant. An answer and cross-complaint was filed by the latter, in which, after denying the right and title of the plaintiff, she claims title by continuous adverse possession for more than five years before the commencement of the action, and asks that the plaintiff be made to show its interest in the land, and that her title thereto be quieted. The court found, among other things, that all the allegations of the complaint were true; that the defendant was not the owner of the land, although she had been in possession of it for more than five years; that her possession was not such as entitled her to obtain title through the statute of limitations; that the land had been, long before her entry, dedicated to a public use by the county of Yolo, and that the right to such public use had never been relinquished or abandoned. And as conclusions of law, "that neither the defendant nor her grantors ever acquired any right, title, or interest in or to the land in controversy so dedicated to public use by their possession of the same; nor does the fact of such possession constitute a sufficient defense to this action." Judgment was given quieting the plaintiff's title to the land as against the defendant and for costs. From that and an order refusing a new trial the appeal is taken. appellate court in Hoadley v. San Francisco, 50 Cal. 276, it could not be subjected to the operations of the statute of limitations. If it was not so dedicated it would be subject, as lands ordinarily held by a municipality are, to the running of the statute. . San Francisco v. Calderwood, 31 Cal. 588; Hoadley v. San Francisco, supra. Was it devoted or dedicated to a public use? It was purchased for the purpose of building a county hospital on a portion of it, and using the balance of it for the necessities of the hospital. For eight years all the land was necessary for, and was used for, the purpose of maintaining the hospital, before the defendant's entry and possession. The hospital was not removed from the land until within about a year of the institution of this action. The defendant contends that e dedication to a public use was never made, because, as she alleges, the county had the right of revoking the use of the land for county purposes, and that no dedication to a public use can be effectual unless it be irrevocable. The case of San Francisco v. Canavan, 42 Cal. 553, is cited as conclusive upon the point. That case was not one in which the facts were as in this case, and we do not think that by the term "irrevocable," as there used, it was intended to say, where a municipal corporation has devoted land to a public use, that because it is within the power of that body to dispose of the land in some other way, if it shall choose, the power of disposition being limited by It is contended that the findings are not statute, such dedication to a public use can supported by the evidence, chiefly for the never be made. The term "irrevocable," as reason, as alleged, that the land was never it originally came to be used, was ordinadedicated to a public use, but was bought by rily applied to a private individual who had the county as a private individual would dedicated land to a public use in such a way buy property, and was subject to be resold that he had reserved no right to reclaim it. by the county, abandoned as to whatever But in the case of a county which buys land for use it might have been temporarily put, and a public use, and devotes it to that purpose, subject, like ordinary municipal or private we cannot see any reason to declare that the property, to be acquired by peaceable and dedication is incomplete because the county continuous adverse possession under the may have the power given by statute afterstatute of limitations of five years. The wards to discontinue the use, and apply the facts in evidence show that the land was pur-land to another public use, or sell it in a statchased by the county, acting through its utory and limited way. Pol. Code, § 4046, quasi trustees, the board of supervisors, for subd. 10. If this was the rule, then it might the purpose of erecting thereon a county hos- be applied to county roads, for the county pital, and using the land for purposes connected therewith. The hospital had been established thereon for about eight years when the defendant's grantor took possession of and fenced the portion of the land in controversy, which up to that time had been uninclosed, and the defendant's possession by may abandon the use of them, and the dedication may be said in that sense to be revocable. Id. § 2681. Yet such roads are dedicated to the public use, as well as streets in a city, and the statute of limitations will not run against it. People v. Pope, 53 Cal. 450; Visalia v. Jacob, 65 Cal. 436, 4 Pac. Rep. 433. We concur: BELCHER, C. C.; HAYNE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed. (79 Cal. 382) In re CARPENTER'S ESTATE. (No. 12,911.) (Supreme Court of California. May 31, 1889.) INSANITY-EXPERT AND OPINION EVIDENCE. he had known testator 12 years, and intimately for 3. It is improper, and prejudicial to proponent, to refer to the conduct of a testator in bequeathing his property to the children of his business partner, and excluding his brothers and their children, whom he had not seen for 35 years, and who were living at a great distance from him. The question, then, recurs: Did the board fore advise that the judgment and order be of supervisors, acting for the county, apply aflirmed. this land to a public use? Hospital buildings are public buildings. Pol. Code, § 4046, subd. 9. If a public building be erected upon land belonging to the county by the proper authorities, and it be devoted to the uses necessary to the character of the building and the purpose for which it is erected, it would seem as if the land was dedicated or put to a public use. Court-houses, jails, and hospitals are put upon the same footing by the statute, supra, are called "public buildings," and they are such to all intents and purposes. 1. Code Civil Proc. Cal. § 1870, subd. 10, allows It will not do to say that the land on which the opinion of an intimate acquaintance of an althey stand, or which is appurtenant and nec-leged insane person to be given on the question of essary thereto, is not dedicated to a public his sanity. To establish testator's sanity propouse. To hold otherwise would be to leave county jails, hospitals, court-houses and other public buildings, and the ground on which they stand, at the mercy of careless or corrupt county officials and rapacious trespassers, in collusion, perhaps, with such officers. This is contrary to public policy. Judge Dillon, in his work on Municipal Corporations, (volume 2, § 533, p. 674,) says: "The author cannot assent to the doctrine that, as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle.' The appellate courts of Pennsylvania, New Jersey, Rhode Island, and Louisiana hold to this view, and it seems to have been approved by the supreme court of California in Hoadley v. San Francisco, supra. As we understand the decisions of California, they place the non-running of the statute of limitations upon the ground that the public is in the use of the land, and that while in such use a trespasser may neither erect a nuisance thereon, nor acquire a right to hold the land based upon a supposed grant to the land from the owner. Hoadley v. San Franciso, supra; People v. Pope, supra. In reference to dedications to public use, it was said by the supreme court of the United States, in City of Cincinnati v. White's Lessee, 6 Pet. 440: "There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. This was the doctrine in the case of Jarvis and Dean, already referred to, with respect to a street, and the same rule must apply to all public dedications." "The law applies to them rules adapted to the nature and circumstances of the case." Id. 434. "All public dedications must be considered with reference to the use for which they are made." Id. 437. After diligent search no case has been found in the books presenting the same state of facts as this record shows. The issue upon which the contest was deWe see no reason why the use of county land termined was the testamentary capacity of for court-houses, jails, county hospitais, and the deceased. Some witnesses were examother public buildings may not be placed up-ined on both sides as to their opinions of the on the same footing as being public places. mental sanity of the deceased, on the ground Public policy requires that such protection that they were intimate acquaintances, withshould be given to public rights. We there- in the meaning of subdivision 10, § 1870, of In bank. Appeal from superior court, San Joaquin county; A. VAN R. PATERSON, Judge. Carter & Smith and S. D. Woods, for appellants. Amos H. Carpenter, for respondents. MCFARLAND, J. This is a contest over the will of Charles W. Carpenter, deceased. Special issues were submitted to a jury, who found that the will was not procured to be made through fraud exercised by any one, and was not procured to be made in the form in which it was made through undue influence exercised by any one, and was executed and attested according to law; but the jury also found that the deceased, at the time of the execution of the will, was "of unsound mind," was "incompetent to make a will," and did not have "suflicient mental capacity to comprehend fully,” etc. Thereupon the court entered an order revoking the will (which had previously been admitted to probate.) The proponents, executor of the will, and devisees and legatees, appeal from said order, and also from an order denying a new trial. |