Plaintiffs’ counsel, in their petition for rehearing, press upon our attention the case of Richmond Wharf & Dock Co. v. Blake Brothers Co., et al., 66 Cal.App. 541 [227 P. 223], cited by them in their reply brief on the original hearing, and which they assume to have been overlooked in our decision because not specifically referred to in the opinion. That ease was not overlooked, but deemed inapplicable for the reasons stated by counsel for respondent in his supplemental memorandum in which it was analyzed. If the property there involved was to be treated as pertaining to the realty, the plaintiff in that case who claimed under the eondemnee would have no title to it because the defendant there, claiming under the condemnor, would have taken it under the condemnation decree, whereas in the alternative, if it were deemed not to pertain to the realty but to be personal property only, the plaintiff would still have no right to it, since it would in that event belong to another, namely, the party or the assignee of the party who placed it on the premises. In neither alternative had the plaintiff any standing in court to object to its conversion by the condemnor. No parallel state of facts arises in the case at bar.
Some comment is made in the petition upon the circumstance that the judgment was entered on the jury’s verdict in the condemnation suit which preceded the present action without the filing therein of any findings other than those contained in the judgment itself. This we think entirely immaterial. The pleadings in that case were not in evidence before the municipal court but, even if they had been, it is not claimed that they specify any particular improvements included in the property sought to be condemned and therefore, unless they did so, findings that the particular items involved in the ease at bar were or were not improvements pertaining to the realty could not in the condemnation case have been made.
The petition for rehearing is denied.
Kelly, J., voted for a rehearing.