I dissent. A wealth of decisions in California support the view that when a ease is tried upon a certain theory, whether within or without the issues presented by the pleadings, the litigants are concluded. The principle on which these decisions rest is that of equitable estoppel, it being held that a party who acquiesces and participates in the trial of an issue without objection as if it arose from the pleadings, when he might have objected on the ground that the issue was not made by the pleadings in the trial court, and where objection might have been met by amendment of the pleadings or otherwise, so that it would have operated less injuriously on the other party than if first made on appeal has thereby *1057waived the objection and therefore should not be heard to make it on appeal. (2 Cal.Jur. 237 et seq.)
In the instant case the rights of the parties are determined by the prior action in condemnation. The judgment in the condemnation proceeding awards $13,000 to the defendants for the real estate, together with the improvements thereon, and their costs and disbursements incurred in the action. Jurisdiction was expressly reserved by the court to thereafter try to determine the proportions and amounts in which said award of $13,000 is to be allocated as between the defendants Jane P. Joslyn and Walter Church. The judgment does not, as filed, separately assess each and every separate estate or interest therein as required by section 1248 of the Code of Civil Procedure, Subdivision 1. In this section the words ‘1 and all improvements thereon pertaining to the realty” are found. I do not believe that this section limits the condemnation to improvements pertaining to the realty. Code of Civil Procedure, section 1240, defines what may be taken in condemnation. Subdivisions 6 and 7 of said section read:
“6. Rights of way. All rights of way for any and all the purposes mentioned in section 1238, and any and all structures and improvements on, over, across or along such rights of way, and the lands held or used in connection therewith shall be subject to be connected with, crossed, or intersected by or embraced within any other right of way or improvements, or structures thereon.
“They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury.
“7. Other Property. All classes of private property not enumerated may be taken for public use, when such taking is authorized by law.”
It will be seen that the provisions of the Statute just cited extend the right to condemn all structures and improvements on, over, across or along such rights of way, without narrowing them to such as pertain to the realty.
After the trial and after judgment entered, a stipulation was entered into by the defendants Joslyn and Church, allocating the proceeds of the judgment, and which said stipulation appears as an exhibit in the instant case. The signifi*1058cant clause in this stipulation reads, after referring to Church’s lease, “wherein the said Jane P. Clapp is the lessor and Walter Church is the lessee, that all damages fixed and allowed by the Court in said proceeding for condemnation, with reference to the said property, including both the land and fixtures and improvements thereon, shall be divided between the said Jane P. Joslyn and Walter Church by the said Jane P. Joslyn receiving Nine-tenths (9/10ths) of said amount and the said Walter Church receiving. One-tenth (l/10th) which shall be taken and accepted by said parties as their full respective rights and interest in said property so being condemned.” This stipulation is broad enough to include all improvements, whether pertaining to the realty or not, and the property moved away by Walter Church certainly consisted of equipment placed upon the premises to facilitate the conduct of Church’s business. It is true that this stipulation is not between the parties litigant in the instant ease and cannot be binding on the State, but it is certainly a definite record of the theory upon which the case was tried. By this stipulation Church received $1,300 for all improvements of whatsoever kind or character on the premises and he cannot now be permitted to assert that he is entitled not alone to that proportion of the judgment but also to some of the improvements.
Such being my view of the case, it is idle to speculate upon the question of “fixtures pertaining to the realty” or to lose ourselves in the fog of decisions. By this stipulation the State became the purchaser and Church the vendor of all the improvements of every kind and character. It would have, perhaps, been better had the Court in the condemnation proceeding asserted its reserved power to allocate the judgment either by approving the terms of the stipulation or otherwise, but whether the court did or not becomes, I believe, immaterial under my view of the case.
Support for the views expressed will be found in Daniels v. Gualala Mill Co., 77 Cal. 300 [19 P. 519]; Barbour v. Flick, 126 Cal. 628 [59 P. 122]; City of Oakland v. Wheeler, 34 Cal.App. 442 [168 P. 23],
The rule of equitable estoppel must be applied when it appears that the rights of litigants depend upon the theory upon which the condemnation ease was tried. It is true that most of the decisions on the theory of the case phase have to do with a change of theory on appeal. The reason for the rule, *1059however, must extend to a separate and distinct case in which the rights and interests of the parties depend upon the theory of an earlier case.
The judgment should be reversed.
Appellant’s petition for a rehearing was denied April 12, 1943, and the following opinion then rendered: