ANGELLOTTI, J.
This is an appeal from an order denying defendant’s motion for an order transferring the cause from the superior court of the city and county of San Francisco to the superior court of Kern County. Both parties are corporations which have their principal places of business in San Francisco. The action was to recover damages for injury to real property situate in Kern County. The complaint shows that plaintiff had constructed and was maintaining a canal over land belonging to defendant, which defendant, as is alleged, wrongfully obstructed to the damage of plaintiffs in the sum of twenty-five thousand dollars. This appeal was heard and determined in Department, where it was held that, as the answer contained allegations of such a nature that the right to an easement will necessarily be involved, the case was brought within that portion of section 5 of article VI of the constitution, which provides that “all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated,” and that, consequently, the superior court.of the city and county of San Francisco had no jurisdiction of the action. Accordingly, it was ordered that the cause be remanded, with directions to the superior court to dismiss the action. A rehearing was granted, and, upon further consideration, we are satisfied
that the constitutional provision above cited can have no application to the case at bar.
This is a case which, so far as the complaint shows, was within the jurisdiction of the superior court of the city and county of San Francisco. It was, under the complaint, an ordinary action for damages to real property, the plaintiff seeking nothing but a judgment for twenty-five thousand dollars damages, and the complaint containing nothing to indicate that the defendant claimed any right or title to the easement. This was the construction given to the complaint on the appeal from an order refusing to change the place of trial before answer.
(Miller & Lux
v.
Kern County Land Co.,
134 Cal. 586.) The provision of the constitution above cited is a limitation on the general jurisdiction of the superior court, and is to be strictly construed. It goes no further than to prohibit the
commencement
of certain enumerated actions affecting real property in counties other than those in which the realty is situated. It simply provides that actions
for the recovery of the possession of, quieting the title to,
or
for the enforcement of liens upon
real property, shall be
commenced
in the county where the real property is situated. The complaint here did not show an action falling in any of these classes. It, therefore, stated a ease within the jurisdiction of the San Francisco court, and, upon its filing, that court acquired jurisdiction of the cause. The action having been properly commenced, so far as the constitutional provision is concerned, and jurisdiction having once attached, we cannot construe that provision as operating to divest jurisdiction merely because the answer contains allegations that make it apparent that the determination of the action will necessarily involve the question of title to or possession of real property. The filing of such an answer cannot operate to change the character of plaintiff’s action: Numerous instances might be cited of cases purely personal in their nature, where, by reason of the answer, the question of title to or possession of real property becomes involved. A construction that will make the determination of the question of jurisdiction depend upon what may be done by the defendant subsequent to the commencement of the action is not to be favored. The law should be such as to inform a plaintiff
with certainty as to the place where he may bring his action. But the provision in question affords little room for construction. It refers solely to the time of the commencement of the action, and makes the question of jurisdiction depend upon the condition of the record at that time. If the framers of the constitution had intended otherwise, they could have made such intention clear by providing that such actions must also be tried in the county where the realty is situated, as the legislature has done in section 392 of the Code of Civil Procedure, or they could have provided for a transfer of the cause to such county whenever it appeared that a question as to realty was involved, by a statute substantially like that relating to justice’s courts. . (Code Civ. Proc., see. 838.) But they industriously stopped with the word “commenced,” and it is not for the courts to legislate in the matter. They must take the law as it is written. It is suggested that, so construed, the constitutional provision may be systematically evaded, and that an action solely for damages for trespass could often be substituted for an action to quiet title at the option of the plaintiff. That may be true, but it is no answer. As said before, the law must be taken as it is written. But it may be suggested that the danger is more fanciful than real. If the defendant be not a corporation, with its principal place of business in some county other than that in which the land is situated, he may have the action transferred to the county in which the property is situated, under the provisions of section 392 of the Code of Civil Procedure.
(Miller & Lux
v.
Kern County Land Co.,
134 Cal. 586.) The cases of
Fritts
v.
Camp,
94 Cal. 393, and
Pacific Yacht Club
v.
Sausalito Bay Water Co.,
98 Cal. 487, are not in point, for in each of those cases the complaint showed that the action was brought to quiet title to real estate. This was pointed out in the Department opinion on this appeal. In the former of those cases, the court said: “Where such questions are brought in after the suit has been commenced, or arise incidentally, there is room for argument. But where, as here, one avowed purpose of the action is to quiet an adverse claim to real estate, courts outside of the county in which the land is situated have no jurisdiction.”
If there is anything inconsistent with the views herein expressed in the commissioner’s opinion in
Staacke
v.
Bell,
125 Cal. 309, it must be disapproved.
We have fully considered the other questions arising upon this appeal, and find no warrant for a reversal of the order of the court below. Much is necessarily confided to the discretion of the trial court on motions for a change of place of trial on the' ground of convenience of witnesses, and it is only where it is clear -that there has been an abuse of such discretion that this court will interfere. It cannot be said that such an abuse of discretion appears in the case at bar. The stipulation filed by plaintiff at the hearing of the motion, to the effect that certain facts would be admitted at the trial, was of such a nature that it renders unnecessary the presence of many of the witnesses named in defendant’s affidavit at the trial; so many, in fact, that it cannot be said that the preponderance in number of witnesses as to material facts is in favor of defendant.
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ANGELLOTTI, J.
This is an appeal from an order denying defendant’s motion for an order transferring the cause from the superior court of the city and county of San Francisco to the superior court of Kern County. Both parties are corporations which have their principal places of business in San Francisco. The action was to recover damages for injury to real property situate in Kern County. The complaint shows that plaintiff had constructed and was maintaining a canal over land belonging to defendant, which defendant, as is alleged, wrongfully obstructed to the damage of plaintiffs in the sum of twenty-five thousand dollars. This appeal was heard and determined in Department, where it was held that, as the answer contained allegations of such a nature that the right to an easement will necessarily be involved, the case was brought within that portion of section 5 of article VI of the constitution, which provides that “all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated,” and that, consequently, the superior court.of the city and county of San Francisco had no jurisdiction of the action. Accordingly, it was ordered that the cause be remanded, with directions to the superior court to dismiss the action. A rehearing was granted, and, upon further consideration, we are satisfied
that the constitutional provision above cited can have no application to the case at bar.
This is a case which, so far as the complaint shows, was within the jurisdiction of the superior court of the city and county of San Francisco. It was, under the complaint, an ordinary action for damages to real property, the plaintiff seeking nothing but a judgment for twenty-five thousand dollars damages, and the complaint containing nothing to indicate that the defendant claimed any right or title to the easement. This was the construction given to the complaint on the appeal from an order refusing to change the place of trial before answer.
(Miller & Lux
v.
Kern County Land Co.,
134 Cal. 586.) The provision of the constitution above cited is a limitation on the general jurisdiction of the superior court, and is to be strictly construed. It goes no further than to prohibit the
commencement
of certain enumerated actions affecting real property in counties other than those in which the realty is situated. It simply provides that actions
for the recovery of the possession of, quieting the title to,
or
for the enforcement of liens upon
real property, shall be
commenced
in the county where the real property is situated. The complaint here did not show an action falling in any of these classes. It, therefore, stated a ease within the jurisdiction of the San Francisco court, and, upon its filing, that court acquired jurisdiction of the cause. The action having been properly commenced, so far as the constitutional provision is concerned, and jurisdiction having once attached, we cannot construe that provision as operating to divest jurisdiction merely because the answer contains allegations that make it apparent that the determination of the action will necessarily involve the question of title to or possession of real property. The filing of such an answer cannot operate to change the character of plaintiff’s action: Numerous instances might be cited of cases purely personal in their nature, where, by reason of the answer, the question of title to or possession of real property becomes involved. A construction that will make the determination of the question of jurisdiction depend upon what may be done by the defendant subsequent to the commencement of the action is not to be favored. The law should be such as to inform a plaintiff
with certainty as to the place where he may bring his action. But the provision in question affords little room for construction. It refers solely to the time of the commencement of the action, and makes the question of jurisdiction depend upon the condition of the record at that time. If the framers of the constitution had intended otherwise, they could have made such intention clear by providing that such actions must also be tried in the county where the realty is situated, as the legislature has done in section 392 of the Code of Civil Procedure, or they could have provided for a transfer of the cause to such county whenever it appeared that a question as to realty was involved, by a statute substantially like that relating to justice’s courts. . (Code Civ. Proc., see. 838.) But they industriously stopped with the word “commenced,” and it is not for the courts to legislate in the matter. They must take the law as it is written. It is suggested that, so construed, the constitutional provision may be systematically evaded, and that an action solely for damages for trespass could often be substituted for an action to quiet title at the option of the plaintiff. That may be true, but it is no answer. As said before, the law must be taken as it is written. But it may be suggested that the danger is more fanciful than real. If the defendant be not a corporation, with its principal place of business in some county other than that in which the land is situated, he may have the action transferred to the county in which the property is situated, under the provisions of section 392 of the Code of Civil Procedure.
(Miller & Lux
v.
Kern County Land Co.,
134 Cal. 586.) The cases of
Fritts
v.
Camp,
94 Cal. 393, and
Pacific Yacht Club
v.
Sausalito Bay Water Co.,
98 Cal. 487, are not in point, for in each of those cases the complaint showed that the action was brought to quiet title to real estate. This was pointed out in the Department opinion on this appeal. In the former of those cases, the court said: “Where such questions are brought in after the suit has been commenced, or arise incidentally, there is room for argument. But where, as here, one avowed purpose of the action is to quiet an adverse claim to real estate, courts outside of the county in which the land is situated have no jurisdiction.”
If there is anything inconsistent with the views herein expressed in the commissioner’s opinion in
Staacke
v.
Bell,
125 Cal. 309, it must be disapproved.
We have fully considered the other questions arising upon this appeal, and find no warrant for a reversal of the order of the court below. Much is necessarily confided to the discretion of the trial court on motions for a change of place of trial on the' ground of convenience of witnesses, and it is only where it is clear -that there has been an abuse of such discretion that this court will interfere. It cannot be said that such an abuse of discretion appears in the case at bar. The stipulation filed by plaintiff at the hearing of the motion, to the effect that certain facts would be admitted at the trial, was of such a nature that it renders unnecessary the presence of many of the witnesses named in defendant’s affidavit at the trial; so many, in fact, that it cannot be said that the preponderance in number of witnesses as to material facts is in favor of defendant. All except three of the witnesses named in defendant’s affidavit are officers and employees of defendant, and the residence of two of these three was disputed by plaintiff’s affidavit. The stipulation filed by plaintiff, consenting that the action pending in Kern County should be transferred to San Francisco, disposes of the objection that this action should be transferred to Kern County, so that the two actions might be tried together. The location of the property relating to which the controversy arises is not conclusive in applications of this character. On all the facts appearing in the record, it was clearly within the discretionary power of the lower court to either grant or .deny this motion, and that court cannot be held to have abused that discretion, whichever way it decided the motion.
Two errors in the action of the lower court in excluding evidence offered by defendant are alleged. One relates to the exclusion of an alleged affidavit by a physician as to the physical condition of an officer of defendant corporation whose presence will be essential at the trial, both as a witness and for the purpose of caring for defendant’s interests. Conceding that the paper was in proper form, its exclusion was without prejudice to defendant. It contained the testimony of the physician of the witness to the effect that the witness
was affected with chronic bronchitis, and that he considered it dangerous to the health of the witness to be in the climate of San Francisco
“at this season of the year,”
and was sworn to on November 9, 1898. This was immaterial on a motion for a change of place of trial, however material it might be on a motion to fix a time for trial, or on a motion for a continuance. It can hardly be held, as suggested by learned counsel for defendant, that this court will take judicial notice that the climate of San Francisco is at all times dangerous to one afflicted with chronic bronchitis, simply because it is dangerous at one season of the year. But in addition to this, the uncontradicted affidavit of Mr. Drum fully covered this matter. The other alleged error relates to the exclusion by the court below of a large portion of an affidavit offered by defendant in rebuttal. The court sustained an objection of plaintiff to such portion made on the ground that the same was not in rebuttal, in so far as the same related to the additional witnesses mentioned therein not mentioned in the prior affidavits of defendant, and considered the affidavit in all other respects. The excluded portion as to all questions, except that of the susceptibility of plaintiff’s land to irrigation from certain waters, was clearly a part of defendant’s original case, and not rebuttal. As to the portion of such affidavit relative to witnesses who would testify on the question of such susceptibility of plaintiff’s land to irrigation, it is claimed by defendant that such testimony was made essential by an amendment to the complaint filed on the day of the hearing of this motion, and immediately prior to the commencement of such hearing. The original complaint had alleged that plaintiff’s land had been irrigated by such waters, and by the amendment such allegation was omitted, and an allegation to the effect that such lands were susceptible to such irrigation was substituted. Such proposed amendment had been served twenty days prior to the hearing of the motion. The defendant, in its original answer, had denied the original allegation as to irrigation, but at the time of the hearing of this motion had in no way answered the amended allegation. Issue had not been joined thereon, and it does not appear that any effort was made to postpone hearing on the motion until such joinder could be made; nor is there
anything to show that defendant proposed to contest such allegation, except so far as the statements in the offered affidavit to the effect that certain of the witnesses named would testify that the lands were not so susceptible tend to show such intent. Plaintiff claims that there was no material change made by the amendment. If this be so, the proposed testimony was within the original issues, and defendant’s original affidavit should have contained the showing. If it was not within the original issues, it was not material on the hearing of the motion, for no issue had-been joined on the amendment. The courts in passing on motions for a change of venue on the ground of convenience of witnesses will not consider any proposed testimony unless it is material to some issue already made. Although the objection made by plaintiff did not specify this particular ground, the ruling of the court below sustaining the objection must be affirmed, if “there appears any reason for which the evidence should have been excluded.”
(Davey
v.
Southern Pacific Co.,
116 Cal. 325 (330).)
The order is affirmed.
Van Dyke, J., Shaw, J., and McFarland, J., concurred.