Pomeroy

In April, 1894, the defendant, Bell, entered upon certain lands in the county of Calaveras owned by the plaintiffs and took possession thereof, with their consent, for the purpose of prospecting for gold and mineral ores, under a written agreement, by the terms of which he had the option of purchasing the land for the sum of thirty-five thousand dollars, payable at a future designated day, and while so in possession placed thereon, and permanently affixed to the land, certain buildings, machinery, and fixtures. In September of the same year, and prior to the expiration of the time within which the purchase was to be completed, the defendants commenced to remove from the land the property that had thus been placed upon it. Plaintiffs thereupon commenced the present action to restrain them from so doing. The cause was tried by the court and judgment rendered in favor of the plaintiffs, in accordance with their complaint. The defendants have appealed therefrom, and also from an order denying their motion for a new trial.

The court finds that all of the property placed upon the land by the defendant Bell was permanently attached and affixed to the land, and. that it was so affixed by…

concurring. I concur in the judgment. There is an express finding of the court that the parties did not occupy the relation of landlord and tenant at the time the mill, etc., were erected on the land. This finding is not attacked by any specification in the statement on motion for new trial, and there is no admission in the pleadings, or other finding of the court, which invalidates it. It must therefore be accepted as a fact established, and is conclusive of the case. If we were permitted to look to the evidence, and especially to some of the terms of the written agreement under which the defendant entered, I should be inclined to hold that he was a tenant within the meaning of section 1019 of the Civil Code.