Fritts v. Camp

Citations

• 94 Cal. 393
• 29 P. 867
• 1892 Cal. LEXIS 698

Syllabus

<p>Venue of Action — Quieting Title — Injunction against Mining . DAbris— Adverse Claim of Easement. — An action to enjoin the defendants from dumping mining débris into a creek above the plaintiff’s land, to his injury, under an adverse claim of an easement to flow and deposit the débris upon the plaintiff’s premises, which the complaint alleges to be without right, and which the answer seeks to justify, is in effect an action to quiet the plaintiff’s title as against the defendants’ claim of the easement, within the meaning of section 5 of article VI. of the constitution, requiring actions to quiet title to real estate to be commenced in the county in which the real estate, or any part thereof affected by the action, is situated.</p> <p>Id.—Change of Venue — Affidavit of Merits — Second Motion — Waiver. —In an action to quiet title to land, upon the supposition that it is proper to move for a change of venue on the ground that the land is situated outside of the county in which the action is brought, it is incumbent upon the court to transfer the cause to the proper county upon a mere suggestion, and no affidavit of merits is necessary; nor does a failure to appeal from a first order denying a motion for such change, for want of an affidavit of merits, constitute a waiver of right to move again for the transfer of the cause to the proper county.</p> <p>Id. —Jurisdiction —Waiver — Dismissal of Action. — Where one of the purposes of an action is to quiet an adverse claim to real estate, the action must be originally brought in the county where the land is situated; and where the action is brought in a court outside of such county, the court has no jurisdiction over the case, and this is an objection which cannot be waived, but the action should be dismissed for want of jurisdiction.</p>