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NEWCOMB v. CITY OF NEWPORT BEACH

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District Court of Appeal, Fourth District, California.

NEWCOMB v. CITY OF NEWPORT BEACH.*

Civ. 2154.

Decided: January 27, 1938

P. E. Keeler, James W. Bell, and Edward V. Jones, all of Los Angeles, for appellant. Roland Thompson, of Santa Ana, for respondent.

The plaintiff brought this action to quiet her title to certain lots within the bounds of the defendant city, which lots were found to be tidelands in Newport Bay. The defendant answered and filed a cross–complaint seeking to quiet its title to these lots. The plaintiff had obtained title under a patent issued by the state of California and the defendant claimed under certain tax deeds. On a former appeal, Newcomb v. City of Newport Beach, 7 Cal.2d 393, 60 P.2d 825, 832, the Supreme Court reversed a judgment in favor of the plaintiff. It was held that the tax deeds under which the defendant claimed were invalid but that the plaintiff, as a condition of having her title quieted, must repay the amount expended by the defendant for delinquent taxes. It was further held that these lands were subject to an easement in favor of the public for navigation, commerce and fishery purposes, and that the rights of the defendant city as administrator of these public trusts had not been sufficiently protected by the decree and judgment, and the trial court was directed “to make findings and enter judgment on this phase of the case in accord with the views herein expressed, and also to determine the amount which plaintiff must pay to the city as a condition to quieting her title, subject to the public trust, against the city.”

When the matter again came on for hearing in the trial court it was stipulated that the amount which the city had paid, and which had not been repaid to it, on account of the taxes in question was the sum of $708.75, with interest thereon at 7 per cent. from July 7, 1931. After the judge stated he would sign findings in accordance with the direction of the Supreme Court, counsel for the plaintiff moved to dismiss the complaint in the action, which motion was denied. Findings were filed on February 10, 1937. Among other things, it was found that the plaintiff is the owner of the land in question, “subject to the easement of the public for the public uses of nagivation, commerce and fishery” and to the right of the city as successor to the state of California as administrator and controller of these public trusts, with the right to enter and, in the preservation and advancement of said public uses, to alter, change, and improve said premises, and subject further to the right and power of the United States of America to fully control navigation, commerce, and fishery in and over said premises. It was further found that the defendant had paid the sum of $708.75 on account of certain taxes and penalties, that the defendant had received two tax deeds, both of which were void, and that the plaintiff had not paid or tendered to the defendant the sum of $708.75 so paid out by the city for taxes. Among other conclusions of law it was found that before the plaintiff is entitled to a decree quieting her title, subject to the public trusts which were mentioned and described, she “shall within five (5) days from and after the signing of these findings” pay to the defendant the sum of $708.75 on account of taxes and penalties paid by the defendant, with interest thereon from July 7, 1931, to the date of payment at the rate of 7 per cent. per annum; that the plaintiff is entitled to a decree quieting her title as against the defendant, subject to said public trusts, when and if she shall pay, within the time specified, the said sum of $708.75 with interest to the defendant; and that if the plaintiff should fail to pay said amount with interest to the defendant within five days from and after the date the findings were signed, or pay the same into court for the benefit of the defendant, then the defendant should be entitled to a decree quieting its title in said premises, subject to the public trusts thereinbefore mentioned. Notice was served on the plaintiff on March 17, 1937, that these findings were signed on February 10, 1937, which notice set forth the portions of the conclusions of law which have been referred to. The notice further stated that unless the sum of $708.75, with interest as specified, was paid to the defendant within ten days from the date thereof, or into court for the benefit of the defendant, as directed by the court, the defendant would apply to the court for a decree quieting its title in and to the premises, subject to the public trusts mentioned in the findings. The money was not paid within the time given or at all, and on May 15, 1937, a judgment was entered which, among other things, stated that the sum of $708.75 had not been paid to the defendant nor paid into court for its benefit, and which judgment quieted the title to the property in the defendant subject to the above–mentioned public trusts. From this judgment the plaintiff has appealed.

The main and almost the only point raised by the appellant is that the court erred in refusing to dismiss the action upon her request. Not only was the motion to dismiss made after all of the evidence had been received and the case practically submitted, but it fully appears that the defendant had filed a cross–complaint in which it sought affirmative relief. Under such circumstances a dismissal is not proper. Code Civ.Proc., § 581, as amended by St.1935, p. 1947; Calhoma Oil Corp. v. Conniff, 207 Cal. 648, 279 P. 771. This is particularly true in this case, since a former judgment in favor of this appellant had been reversed with specific directions to award certain relief to this respondent, and to which it was entitled in any event.

A further consideration here is that the appellant, not having complied with the order requiring the payment of a certain sum, is, under what is now the law of this case, entitled to no relief and the questions raised are, in so far as she is concerned, practically moot. Having failed to establish title in herself through performance of the necessary condition, it is immaterial, so far as this appeal is concerned, whether or not the record supports the judgment which was entered in favor of the respondent. Penn v. Dyba, 115 Cal.App. 67, 1 P.2d 461.

The statement is made by the appellant that there was no interlocutory decree imposing any condition upon her to be performed in any given time, although this matter is not argued. While no formal interlocutory decree was entered, the substance thereof was included in the findings and conclusions of law with definite provisions requiring that a certain amount be paid within a given time if judgment was to be entered in her favor. She was given formal notice of this, and judgment was not entered for nearly two months thereafter, and the required payment was never made or tendered. The appellant further states that the decree fixes certain rights in the United States which were not in issue and that the United States was not a party to this action. The rights of the United States government were discussed in the opinion on the former appeal and the findings followed the views therein expressed.

The judgment is affirmed.

BARNARD, Presiding Justice.

I concur: MARKS, J.

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