This action was commenced in the court of a justice of the peace to recover damages consequent upon the alleged nonperformance of an agreement.
It was alleged in the complaint that, in consideration *135of one hundred dollars, the defendant agreed “ to locate the plaintiff on certain vacant government land in the county of San Benito, state of California; but this plaintiff avers that said defendant failed to carry out and fulfill said contract and agreement, in that they (it) failed and neglected to locate this plaintiff on said or any lands pursuant to their said contract.”
A copy of the contract is set out in the complaint as follows:
“ San Francisco, July 22, 1892.
“ Received of J. D. Hart, Esq., one hundred ($100) dollars, in full payment for ten (10) shares of the capital stock of the San Carlos Oil Company, and our services for locating the said J. D. Hart, Esq., on the limit of the number of acres allowed by the homestead law, not to exceed one hundred and sixty (160) acres. Said location to be on vacant government land in San Benito county, California.
“ The Carn all-Hopkins Co.,
“ By Gibbs and Zimmerman,
“Mngs. C. A. Dep.”
Those parts of the verified answer of the defendant pertinent to the questions raised on this appeal are substantially as follows:
1. ' Defendant alleges “ that the determination of this action will necessarily involve the question of title and possession to real property, to wit: the title and possession of the northwest quarter of section 27, township 16 south, of range 10 east, county of San Benito, state of California.”
2. Admits the execution of the instrument of July 22, 1892, above set out, and the receipt of one hundred dollars therein mentioned; and alleges “that defendant did locate plaintiff on vacant government .land in San Benito county, California, and said location was on the northwest quarter of section 27, township 16 south, range 10 east, in said county, and said property was at said time open to location, and no other person bad any valid claim thereto .... That defendant is informed and believes *136that plaintiff claims that said lands were not vacant government lands, but that they were in the possession of some other person; and defendant alleges that they were vacant government lands, and not in the possession of any other person at the time of the location of plaintiff thereon; and, in consequence thereof, the determination of this action involves the title and possession of real property.....Wherefore, defendant asks that judgment be rendered and entered in favor of defendant for its costs; that plaintiff take nothing herein; and that this court suspend all further proceedings herein."
The docket of the justice of the peace shows that the action was tried January 3, 1893, the parties being represented by their attorneys; that three witnesses testified on behalf of plaintiff,, and that no evidence was offered on behalf of the defendant; and that the cause was submitted by the parties, and that judgment was rendered in favor of the plaintiff for the sum of one hundred and sixty-five dollars damages and for costs.
From this judgment the defendant appealed to the superior court of the city and county of San Francisco “ upon questions of both law and fact."
The cause was tried de novo in the superior court, where plaintiff again recovered judgment against the defendant for the sum of one hundred and sixty-eight dollars and eighty-five cents and costs, from which and from an order denying its motion for a new trial the defendant appealed to this court.
Respondent moved in Department One of this court to dismiss the appeal, on the ground that the judgment of the superior court was final. On this motion an opinion denying it was written by Mr. Justice Paterson, concurred in by Mr. Justice De Haven. Mr. Justice Harrison concurred in the order denying the motion, but, after alluding to the averments of the complaint and answer above set out, said:
“ 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 *137‘ 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.”
Upon the whole record, including the evidence brought up in the bill of exceptions, on which the motion for a new trial was made, the sense in which the word “locate” was used, understood, and acted upon by the parties is quite apparent. It is that the defendant was to lead or direct the plaintiff to, and point out to him, public land of the United States which was subject and open to be settled upon and entered as a homestead by any person having the qualifications required by law to settle upon and enter such land. Of course, the settlement and entry were to be made by the plaintiff himself, according to the laws of the United States, which will not permit these acts to be done for him by another. And so the plaintiff understood and acted upon the contract. After the northwest quarter of section 27, township 16 south, had been pointed out to him by defendant, the plaintiff applied at the United States land office “to file upon” that quarter section under the homestead laws, and paid the requisite fees, etc., for that purpose; and it appeared, from the evidence on the trial in the superior court, that his only complaint was that the land was not subject or open to a homestead settlement or entry, for the reason that one Ben venga had made a prior settlement thereon, and was in possession *138thereof at the time the land was- pointed out to him by defendant, and at the time he applied to the land office to file his application. On the trial in the superior court, it having been proved and admitted that the land had been selected and pointed out to plaintiff by defendant,- and that it was government land, the question arose whether or not Benvenga was a settler upon, and was entitled to, the possession at the time the land was pointed out to plaintiff by defendant; and this question was material for the purpose of determining whether the defendant had complied with its contract to point out vacant public land, and was the principal question contested in the superior court, although it does not appear to have arisen or to have been tried in the justice’s court; and, I think, as suggested by Mr. Justice Harrison, that the pleadings do not show that title or possession of real property was or would be necessarily involved in the trial. The allegation of the complaint is that the defendant failed to point out (“ to locate the plaintiff on”) any land pursuant to the agreement; and had the proof shown that defendant had failed to point out to plaintiff any government land, such proof would have disposed of the case in plaintiff’s favor, regardless of any question of title or possession of real property; and, for aught that appears, such may have been the proof in the justice’s court, where, as shown by the record, the defendant introduced no evidence whatever. Nor did it appear by the answer of the defendant that title or possession of real property was necessarily involved, but only that it would become involved upon the happening of certain contingent events, namely: If, in case of proof that defendant pointed out to plaintiff government land, the plaintiff should then claim, as defendant was informed and believed he would, that such land was not vacant government land, but was in the possession of some other person. Besides, the answer contained no prayer for a transfer of the cause to the superior court; nor does it appear that either of *139the contingent events above mentioned happened in the justice’s court.
For aught that appears on the face of the record here, the justice of the peace did not exceed his jurisdiction in proceeding to try the case, nor in rendering final judgment, since it does not appear that the predicted contingent events occurred on the trial in the justice’s court. Had they occurred during that trial, however, the justice, in obedience to section 838 of the Code of Civil Procedure, should have declined to hear evidence touching the question of possession thereby raised, and should have certified the pleadings (both written and oral) with a copy of his docket, to the superior court; and if he had failed or refused to do so, the defendant might have appealed on questions of law alone, whereupon, by a statement, according to section 975 of the Code of Civil Procedure, he could have shown the occurrence of the contingent events predicted in his answer, and that evidence had been admitted upon the question as to whether the land “was in the possession of some other person”; but in no other way could he have made it appear to the appellate court that the right of possession of real property became involved on the trial in the justice’s court; since it did not so appear on the face of the pleadings, nor from the copy of the docket, or any other paper which the justice was required to transmit to the superior court. It is true, however, that if the pleadings had shown that the right of possession of real property was necessarily involved, or if the docket or other papers properly sent up by the justice had shown a want of jurisdiction for any other reason, there would have been no necessity for a statement (Southern Pacific R. R.'Co. v. Superior Court, 59 Cal. 474); but in the case at bar no error appears in the docket or other papers sent up by the justice. Besides, instead of appealing on questions of law alone, the defendant appealed upon questions of both law and fact, thereby necessitating a trial de novo in the superior court; yet, when the case was called for trial in that court, and the *140plaintiff proceeded to offer evidence, defendant objected to any trial de, novo, on the alleged ground that the superior court had no jurisdiction, for the reason that the justice’s court had not jurisdiction of the subject matter originally, claiming that it appeared by the answer that a question as to the possession of real property was necessarily involved. The court overruled this objection, and proceeded with the trial, to which the defendant excepted.
The principal point urged here by the appellant is that the superior court erred in overruling this objection, and in trying the case de novo, whereas it should have reversed the judgment of the justice’s court and remanded the cause, with instruction to certify a transcript thereof back to the superior court in the mode provided by section 838 of the Code of Civil Procedure.
Conceding, for the sake of the argument, that the justice’s court had not jurisdiction of the subject matter, and that the superior court had no appellate jurisdiction to try the issue as to the possession of real property, yet the superior court had original jurisdiction of all questions pertaining to possession of real property, and having jurisdiction of the parties, properly tried the issue as to whether Benvenga was entitled to possession of the land, that being the only material issue contested in the superior court. (City of Santa Barbara v. Eldred, 95 Cal. 378.) The defendant cannot be heard to deny that the superior court had jurisdiction of the parties, since it not only appealed the case to that court, to be there tried on questions of both law and fact, but it voluntarily appeared, and moved for judgment of reversal on the record which it had procured to be transmitted to that court, and also made its defense on the merits by offering evidence on the trial—and all this, without even suggesting that its appearance was limited to any special purpose. Nor, as before remarked, did it appear on the face of the transcript transmitted to the superior court that the right of possession of real property was necessarily involved, nor that any issue relating to such *141possession had been tried in the justice’s court. For aught that appears, that issue was first developed in the course of the trial in the superior court, by proof that defendant had pointed out to plaintiff government land, representing it to be vacant, and by evidence on the part of plaintiff tending to prove that the land so pointed out was not vacant. When this issue was thus developed, the superior court was not obliged, as contended by appellant, to reverse the judgment of the justice of the peace, and to remand the case for the purpose of having it transferred to the superior court, according to section 838 of the Code of Civil Procedure, in order to obtain original jurisdiction to try it, since the superior court had such original jurisdiction, without this circuitous, dilatory, and vain process. Yet'the relief asked here by appellant requires a still more circuitous and dilatory proceeding, which is, that this court reverse the judgment and order of the superior court, and remand the cause, “ with instructions to vacate the judgment of the justice’s court, and order the papers certified to the superior court in accordance with section 838 of the Code of Civil Procedure”—and all this, it is claimed, is necessary to give the superior court original jurisdiction of the subject matter.
From the foregoing considerations it follows that the superior court obtained original jurisdiction of the issue as to the possession of Benvenga, and did not err in trying the case de novo. And, from this conclusion, that the superior court properly exercised original jurisdiction, it further follows that this court has appellate jurisdiction, and should deny respondent’s motion to dismiss the appeal.
In opposition to this second conclusion, however, it is urged by respondent that possession of real property was only incidentally involved, and, therefore, the superior court had not original jurisdiction, and to this point respondent cites the case of Schroeder v. Wittram, 66 Cal. 636, in which the opinion of Mr. Justice McKee (in Bank) seems to countenance his contention. But *142that opinion was concurred in by only one of the other justices, while two justices concurred in the judgment only upon other grounds, and the chief justice wholly dissented. Therefore, the opinion of Mr. Justice McKee on this point cannot be regarded as authoritative, and was not so considered in the latter case of Copertini v. Oppermann, 76 Cal. 181. It is clear that it was developed by the plaintiff’s evidence on the trial in the superior court that Benvenga’s prior settlement and right of possession were conditions upon which plaintiff’s right to recover depended, and that the court must have decided whether or not these conditions existed, in order to determine the case; and it appears that evidence tending to prove them was introduced by plaintiff. It follows that the possession of real property was necessarily involved in the sense of section 4 of article VI of the constitution, which gives this court appellate jurisdiction “in all cases at law which involve the title or possession of real estate,” without excepting cases in which the title or possession is only incidentally involved. If the issue of title or possession is so involved that it must be decided in order to determine the case, the superior court has original, and in this court appellate, jurisdiction, whether the involution may be said to be merely incidental or not. (Copertini v. Oppermann, 76 Cal. 181; Holman v. Taylor, 31 Cal. 341; Code Civ. Proc., sec. 838; Const., art. VI, secs. 4, 5, 11.)
On the hypothesis that the superior court did not err in trying the case de novo, counsel for appellant contend that the judgment should be reversed for errors occurring at the trial.
Only two of these points are sufficiently plausible to merit consideration, one of which is that the court erred in sustaining plaintiff’s objection to the introduction in evidence of the following letter, offered by defendant:
“San Benito County, July 24, 1892.
“Gentlemen: I have located upon the N. W. quarter of section 27, T. 16 S., R. 10 E., and am well pleased *143with my location, and have found every thing as represented to me by your agent. James D. Hart.”
Conceding that the court should have admitted this letter, I think the error was harmless.
Plaintiff filed his application in the land office August 1, 1892, six days after writing this letter, and twenty-three days before Benvenga filed his application for the same land and gave notice of his contest, which he did on August 24, 1892. Before the letter was offered by defendant, plaintiff had repeatedly testified that until he received notice of Benvenga’s adverse claim he was well pleased and fully satisfied with the land, and there was no evidence to the contrary. The proffered letter would have added nothing to plaintiff’s testimony and admissions on the trial.
It is also contended that there is no finding upon the issue tendered by the answer “as to the land being open and vacant.”
The finding is: “ But that said defendant failed to carry out and fulfill its contract and agreement, in that they failed and neglected to locate this plaintiff on said land, or any land or lands, pursuant to their said contract; nor has said defendant, since the date of said contract and agreement, ever offered to locate said plaintiff on any vacant, unoccupied government land in said San Benito county, or elsewhere.”
This is a finding that no land upon which defendant located the plaintiff was vacant, and fully disposes of the issue.
I think respondent’s motion to dismiss the appeals should be denied, and that the judgment and order appealed from should be affirmed.
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion, respondent’s motion to dismiss the appeals is denied, and the judgment and order are affirmed.
McFarland, J., Fitzgerald, J.
De Haven, J., concurred in the judgment.