San Joaquin Valley Bank v. Dodge

Citations

• 125 Cal. 77
• 57 P. 687
• 1899 Cal. LEXIS 804

Syllabus

<p>Wat of Necessity—Title Under Foreclosure of Mortgage— Wat Over Homestead of Mortgagor.—A way of necessity arises when one grants a parcel of land surrounded by his other lands, or where the grantee has no access to it from the public road except over the land of the grantor, or that of a stranger; and this rule applies to a grantee who takes title under foreclosure of a mortgage to land so situated that there is no access thereto excepting across a homestead of the mortgagor, which was included in the mortgage, but was not sold thereunder.</p> <p>In.—Sufficiency oe Complaint—Description of Wat—Stipulation—Appeal.—A complaint to establish a way of necessity, which sets forth the facts as to the ownership by the different parties, and shows the right to a way of necessity, is not fatally defective for not describing the way, the location of which the defendant had the right to dictate; and where the case was tried on the theory that the complaint was sufficient, and the parties stipulated as to the proper description of the way, if it should be adjudged that one exists, the complaint will be held sufficient upon appeal.</p> <p>Pleading — Amendments — Discretion — Presumption. — Amendments to pleadings are within the discretion of the court below; and it is presumed that such discretion will be exercised in furtherance of justice, and with a view of disposing of cases; upon their merits. The appellate court will not interfere, unless such discretion is abused.</p> <p>Id.—Amendment to Answer—Statute oe Limitations—Submission oe Cause.—It is not an abuse of discretion to refuse to allow an amendment to the answer, so as to plead the statute of limitations, where the application therefor was not made until after the case was tried and submitted.</p>