Opinion
Hearing Granted by Supreme Court March 18, 1927.
Appeal from Superior Court, Riverside County; William H. Ellis, Judge.
Action by Riverside County against the Title Insurance & Trust Company, to enforce a statutory lien for the eradication of noxious weeds and extermination of ground squirrels. Judgment for plaintiff, and defendant appeals. Modified and affirmed. COUNSEL
Woodruff & Shoemaker, of Los Angeles, for appellant.
Albert H. Ford, Dist. Atty., of Riverside, for respondent.
OPINION
STURTEVANT, J.
The plaintiff commenced an action to foreclose a statutory lien. The defendant answered, and the trial court made findings in favor of the plaintiff, and caused a decree to be entered in accordance therewith. The defendant has appealed from the judgment, and has brought up a bill of exceptions.
The defendant is the owner of certain lands, including, among others, lands described in the plaintiff’s complaint. So far as the record discloses the entire holding of the defendant is known as Fairhaven Farms, which was heretofore mapped and platted and a map thereof was filed of record. In the bill of exceptions there is evidence to the effect that Limonite street runs east and west and that some of the lands owned by the defendant are on the north side and some are on the south side of that street. It further appears that running along the north side of Limonite street is a fence. No other fences are mentioned in the record.
According to the uncontradicted evidence, on the 8th day of July, 1919, Russian thistle was growing in more or less abundance on the lands owned by the defendant. At the same time there were many ground squirrels on the same lands. The horticultural commissioner made an inspection, and, on finding the presence of the thistles and squirrels, proceeded to take steps to abate the nuisance. It is not disputed but what he attempted to follow the provisions of section 2322a of the Policital Code (chapter 508 of the Statutes of 1917).
On July 8, 1919, he caused Frank Babel, an inspector theretofore appointed by him, to serve a notice on the defendant to abate the nuisance. Said notice required the defendant to abate the nuisance "within ten days after the service" of the notice on the defendant. As the defendant did not reside in Riverside county, the notice was served by posting it and by mailing a copy to the owner. Those acts were done on July 8, 1919. Babel posted the notice on lot 8, which is bounded by Limonite street on the south, and which is about one-half way from the east toward the west in crossing over Limonite street. Thereafter, no steps having been taken by the defendant to abate the nuisance, the horticultural commissioner sent men and teams to do the work. The work consisted of scattering poisoned wheat to kill the ground squirrels and of plowing and raking the ground and thereafter of burning the débris for the purpose of destroying the thistles. The expense incurred in scattering poisoned wheat, etc., was $15, which sum was included by the trial court in estimating the amount of the plaintiff’s lien. The men and teams entered on the lands owned by the defendant and commenced the work on July 18, 1919. As found by the trial court, they did not enter the lands described in the complaint until July 24, 1919. The judgment appealed from does not include any moneys expended for labor done prior to July 24th. Other expenditures were eliminated.
The appellant contends that its demurrer should have been sustained. In this behalf it claims that, as it was served with the notice at Los Angeles, 60 miles away, therefore it was entitled to commence work at any time within the 10-day notice, plus two additional days. However, it points out that in the complaint it is alleged the work commenced July 18; that is, three days before the defendant’s time had expired. The vice in the contention is that plaintiff’s complaint contains several allegations as to when labor was done and performed, and it does not appear therefrom that any of the expenditures now claimed by the plaintiff were incurred for labor done or performed prior to the 22d day of July, 1919. The labor was not therefore prematurely rendered.
The appellant relies on the same facts to support its contention that the statutory procedure was not followed, and no valid lien ever attached to the premises, or any part thereof. In making this contention it relies on an allegation in the plaintiff’s complaint that some work was done on the 18th day of July, and a recital in the notice of lien to the same effect, but turning to the findings, it will be seen that the trial court found the fact to be "that said commissioner entered upon the premises described in the claim of lien and in the complaint on the 25th day of July, 1919." In doing so he was following the statutory procedure and the plaintiff’s lien was not rendered invalid for that reason. The appellant complains because the trial court did not find which particular lots were infested with thistle and impose a lien separately on those lots only which were infested. The first answer is that the statute contains no requirement supporting the contention of the appellant. The statute authorized the plaintiff’s officers to inspect "any premises," or "any other place," and to proceed accordingly. The statute did not impose the duty on the county official to proceed against the lands "by sections or fractions of sections." Pol. Code, § § 3628 and 3650. In other words, there is much in the statute to indicate that the Legislature intended that each holding could be proceeded against whether the entire holding was infested with the particular pest or only a portion was so infested. In this same connection the appellant points out that some of the work was done on the property south of Limonite street. That is true, but no part of the expenses for work done south of Limonite street is involved in this litigation. As a fence separates the parcels, the portion in the south was a different "premises."
The appellant contends that the claim for exterminating ground squirrels was premature and cites County of San Benito v. Wapple, 188 Cal. 423, 205 P. 673. We see no answer to the point. However, the claim included $15, and no more, and is entirely separable from the rest of the plaintiff’s claim; therefore it can be deducted without injury to the appellant.
The appellant argues that, if the several lots north of the road may be covered by putting up one notice, the same reasoning will include the lots south of the road, and that it follows that the entity is all of the defendant’s lands comprised, within the expression Fairhaven Farms. With this contention we do not agree. In the first place, a fence and a road divided the two properties; in the next place, if the statute must be construed as using the word premises or place as synonymous with Fairhaven Farms, it is equally to be contended that the statute would likewise be construed to include an entire township as being synonymous with those words. But there is nothing in the statute leading to such extremes.
As recited above, one of the statements contained in the notice of lien was that the horticultural commissioner entered upon the premises on July 18, 1919. The appellant asserts that such a statement is binding upon the plaintiff and that the findings of the trial court to the contrary create a fatal variance. That there is a variance it is quite clear, but there is no reason for saying that the variance is fatal. The statute does not attempt to state what shall be contained in the claim of lien. The appellant’s argument rests on the analogy which it would draw from the decisions which construed statutes regarding mechanics’ liens. Code Civ. Proc. § 1183 et seq. However, in California we have many statutes creating liens. There is no more reason why we should couple Political Code, § 2322a, and Code of Civil Procedure, § 1183 et seq., than that we should couple it with any other statute on the subject. Each of those statutes is an entity unto itself unless it contains a cross-reference. Keener v. Eagle Lake L. & I. Co., 110 Cal. 627, 631, 43 P. 14.
The appellant calls attention to the decision of the Supreme Court entitled County of San Bernardino v. Stewart, 173 Cal. 236, 159 P. 717, and thereupon it contends that the notice to abate the nuisance, although it was signed by the horticultural commissioner in person, it was not properly served, because it was served by Mr. Babel, who was not a deputy horticultural commissioner, but was a horticultural inspector, who was directed by the commissioner to serve the notice. The statute provides that "any person deputed by the said commissioner" may serve the notice. The statute, by the expression used, does not mean that the person serving the notice shall have the title of deputy, but it does mean that the person serving the notice must either be the principal or a person selected and authorized by the principal to perform the act. Cent. Dict. "depute."
We find no error in the record except the charge for exterminating ground squirrels. The judgment will be modified by deducting $15 from the principal amount contained in the judgment and as so modified the judgment will stand affirmed. It is further ordered that respondent recover its costs.
We concur: KOFORD, P. J.; NOURSE, J.