Hart v. Carnall-Hopkins Co.

Harrison, J.—

I concur in denying the motion. The complaint alleges that the plaintiff paid to the defendant one hundred dollars in consideration of its agreement to “locate” him on certain vacant government land in the county of San Benito, and that the defendant had wholly failed to carry out its agreement. In its answer the defendant alleges that it did so “ locate” the plaintiff, and that the property on which the location was made was “open to location,” and that no other person had any “valid claim thereto”; and that in consequence thereof the determination of the action involved the title and possession of real property. From these averments we cannot determine whether the title or possession of real property is necessarily involved. What significance must be given to the term “locate” must depend upon the sense in which it was used by the parties to the agreement and whether the property upon which the defendant claims to have “located” the plaintiff in purported performance of its agreement was “open to location,” or whether any person had a “valid claim” thereto, may present questions involving the title or possession of real property. Upon the present motion we are limited to the averments in the pleadings, and cannot look at the evidence introduced in support thereof. If upon the hearing of the appeal on its merits, it shall appear that the case before the court below did not involve the title or possession of real estate, we can then dismiss the appeal. But upon the matter as now presented, the motion should be denied.