SANTA CRUZ ISLAND LITIGATION

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Santa Cruz Island Company Litigation: began after Albina Caire had made distributions of stock in the Santa Cruz Island Company to each of her six children in 1910. In 1912, two of her four daughters, Amelie Rossi and Aglae Capuccio, as stockholders, caused actions at law and in equity to be brought against her and their other sisters and two brothers, seeking distribution of assets of the corporation to its stockholders, an accounting, and partition of Santa Cruz Island among the several stockholders. The various proceedings were grounded on the inadvertent failure of the corporation to pay its $5 corporate license tax for 1911, and consequent forfeiture of its corporate charter. The dissident stockholders refused to join the others in seeking remission of forfeiture and revival of the corporation under applicable statute. Protracted litigation lasted until the final decree, Capuccio v. Caire, was filed on November 16, 1925, Superior Court of the State of California for the County of Santa Barbara.


October 1903: Aglae Caire, sixth child of Justinian and Albina Caire, marries Goffredo Capuccio.


October 30, 1906: Amelie Caire Rossi’s oldest child, Maria, marries San Francisco attorney, Ambrose Gherini.


Early 1910: Goffedo Capuccio is rehired by the Justinian Caire Company.


THE GIFT ~ December 1910: Albina Caire, who owns 100% of the stock in the Santa Cruz Island Company, gives gifts of shares of stock to her children.


October 8, 1911: Amelie Caire Rossi’s husband, Pietro Carlo Rossi, is killed in a buggy accident. She is left a widow with ten suirviving children.


THE TAX ~ December 1911: the Santa Cruz Island Company inadvertently fails to pay its $5 corporate license tax, opening the door for corporate dissolution. It was determined to have been the responsibility of secretary Capuccio to pay.


January 3, 1912: Amelie Caire Rossi announces she will not sign the Santa Cruz Island Company reorganization papers, now necessary because of the failure to pay the $5 corporation tax. Aglae Caire Capuccio also soon refuses to sign.


January 8, 1912: Goffredo Capuccio is fired.


January 31, 1912: Ambrose Gherini demands $250,000 [$5.7 million in today’s dollars] for each of his clients, Amelie Caire Rossi and Aglae Caire Capuccio.


LETTERS FROM ALBINA CAIRE TO ATTORNEY BLUXOME:

Oakland, 14 March 1912

Mr. J. F. Bluxome Nevada Bank Building San Francisco

Sir

I have learned that Mrs. Rossi through her lawyer has demanded that all of my children sign among themselves an agreement on the distribution of my estate after my death, independently of whatever I may desire or arrange. I must tell you, sir, that I consider this demand on the part of one of my daughters as a signal and that I regard it as an impertinence done completely as an attempt or threat to influence me in the disposition that I will make of my estate and such agreement an attempt to arrange the distribution of it whether during my life or after my death.

I do not recognize the right of any of my children to tell me what use I should make of what legally and morally belongs to me, and I feel still capable of judging things for myself without anyone having to dictate the law to me.

My children cannot fail to remember what I have had to repeat to all of them several times over the course of these last months without exception: that I have the intention of doing with my property what seems to me to be fair and proper. I authorize you to make my sentiments known to Mrs. Rossi’s lawyer and beg you to accept for yourself the assurance of my distinguished appreciation.

Albina C. S. Caire


Sir

I would beg you to draw up without delay the document of which I spoke with you during my visit, because I am more than ever absolutely decided to divide, in equal part, among my sons Arthur J. Caire, Frederic F. Caire and my two daughters Delphine A. Caire [H is written in above the last Caire] my 45 shares of Santa Cruz Island.

Please let me know what day I can come to your office.

Receive sir the assurance of my distinguished appreciation.

Albina C. S. Caire



June 13, 1912: First lawsuit Rossi v. Caire. Albina Caire, on her 81st birthday, was served with a summons and Notice of Complaint in the suit of her grandson, Edmund Rossi, acting on behalf of his mother, Amelie Rossi.


June 13, 1912 [SBI]: “Rumors which have been circulating for some time that Santa Cruz Island would be turned over to the Catholic church some time in the future were denied by A. J. Caire, one of the owners, while on his way to San Francisco. ‘I heard the report,’ said Mr. Caire, ‘and immediately telegraphed my brother in Oakland to find out where it had originated. He answered saying that there was no truth in it and as I had never authorized such a statement you may rest assured there is nothing in it. The island is family property and we are not even trying to sell it.’ So far nearly 30,000 head of sheep have been brought to the mainland from the island, and another big shipment is expected June 23.”


March 2, 1913 [SBMP]: “According to a San Francisco dispatch, there is discord in the wealthy Caire family which owns Santa Cruz Island. Edmund A. Rossi, [son] of Amelia Rossi, daughter of the founder of the Caire fortune, has brought action against other members of the family to compel a dissolution of the Santa Cruz Island Company, the assets of which are values at $200,000. It is very probable that A. J. Caire knows nothing about the bringing of the suit. He was in Santa Barbara about ten days ago, but has been over to the island for sometime. The suit was filed while he was absent from San Francisco. Mr. Caire has been giving attention to the island interests more than any other member of the family.”


March 20, 1913: A second lawsuit is filed by Aglae Capuccio, who has decided to act apart from her sister in an action against the family, rather than with her. (using Steiger?)


March 23, 1913 [SBMP]: “Santa Cruz Island involved in suit. Suit for seven shares of the stock of the Santa Cruz Island Company, owned principally by the Caire family, has been filed in superior court of San Francisco by Aglae S. Capuccio, a trustee and stock holder, who asks that a receiver be appointed to convert the assets of the corporation into cash and distribute to each stockholder his pro rata share. The defendants are A. J. Caire, Fred F. Caire, Albina C. S. Caire and Delphine A. Caire, who comprise the board of directors, and Helen A. Caire and Edmund A. Rossi, stockholder. The plaintiff alleges that disputes among the directors have led to the necessity for closing out the corporation. The company was formed in 1869 to engage in stock raising on Santa Cruz Island in the Santa Barbara Channel.”


April 18, 1913 [LAT]: “…Santa Cruz Island… The little world within itself is the property of the Santa Cruz Island Company, a defunct corporation owned and controlled by the heirs of the late Justinian Caire. It is managed by Arthur Caire, head of the Justinian Caire Company of this city, and has been the means of causing much dissension in the Caire family of San Francisco and Santa Barbara. In delivering judgment, Judge Sturtevant occupied two hours, during which time he reviewed the history of the island… The decree is the conclusion of an action brought by Edmund Rossi, son of one of the daughters of the decedent founder of the fortune, to compel the sale of the assets of the Santa Cruz Island Company and distribution of the proceeds among the members of the family holding stock in the corporation… Recently Arthur Caire, its manager, allowed the corporation tax due the State to become deliquent, and from that time his management of the property has been unsatisfactory to the other members of the family. When the dissenting members of the family sought to have Arthur Caire wind up the business he refused, and the suit was instituted by attorney Ambrose Gherini, council for Rossi. Besides the lands, the corporation owns a small portion of the livestock which originally roamed over the broad acreage. The balance has been sold. These, with other personal property on the island, it is said, had a total valuation of about $2,500,000. With the sale of the property the largest landholding by one family in the State, excepting the ownership of Henry Miller, will pass into history.”


April 18, 1913 [SFE]: “Santa Cruz Island, off the coast of Santa Barbara, which was received as a grant from the Spanish government by the pioneer Caire family [not true], is to be sold and the proceeds divided among disgruntled stockholders. The selling of the island was foreshadowed in the instructions given by Judge Sturtevant yesterday to counsel for Edmund A. Rossi to prepare findings to that affect and present them to him when he would render a judgment. Rossi, a member of the Caire family, is suing Arthur J. Caire, present manager of the Santa Cruz Island Company, for an accounting of his stewardship and to force him to wind up the affairs of the company and distribute the proceedings among the stockholders. Named as defendants with Arthur J. Caire are the other members of the family: A. C. S. Caire, F. F. Caire, Helene A. Caire, D. A. Caire and Aglae Capuccio. It is said that the heirs of Justinian Caire, who originally owned the island, have been unable to agree for some time about its management and have decided to disband their financial interests. Two years ago the company lapsed in its corporation tax payments and was ordered by the State to dissolve… The island was obtained by the late Justinian Caire as a grant from the Spanish government [not true]; it contains 64,000 acres of an estimated valuation of $2,000,000. For many years the Caire family have used the island for the raising of livestock, and according to the stockholders there are cattle on the island at present time of an aggregate value of $500,000.”


April 19, 1913 [SBMP]: “According to judgment handed down in San Francisco Thursday, Santa Cruz Island, consisting of 64,000 acres will be sold and the profits divided among various stock holders of the Santa Cruz Island Company. The judgment, which was informal and which will be followed by written findings, comes as a result of litigation instituted by Edmund Rossi, et al, against Arthur Caire, et al, and is part of a family misunderstanding, the company’s stock being held exclusively by the Caire family. It was alleged by some members of the family that Arthur Caire had mismanaged the property. A division was therefore demanded… The judge’s decision will cause the dissolution of the Company and the winding up of its affairs, allowing the various members of the Caire family to take their share of the proceeds of the sale just as if the action had been a partition.”


April 27, 1913 [SBMP]: “According to a report received from the Caire estate in San Francisco, a statement that has been made by Judge Sturtevant that there is no immediate prospect of Santa Cruz Island being sold. The reports to that effect appearing in all San Francisco papers, he stated, were untrue. His decision merely provided that the trustees of the island company render an accounting as of the date of the suit filed, and that there be a notice to creditors published. Further accountings are to be had when the court deems them necessary. Judge Sturdevant held that there has been no negligence oriven of trustees. He stated, in fact, that further proceedings on the part of the court would depend upon conditions and circumstances developed. The trustees were represented by attorneys Frank P. Deering and J. F. Bluxome. The minor stockholders were represented by attorneys David Friedenrich and Ambrose Gherini.”


June 9, 1913: San Francisco Superior Court Judge rules in favor of Edmund Rossi in Edmund A. Rossi v. Arthur Caire et. al. Case No. 43295. Trustees were directed to wind up the affairs of the corporation since it had forfeited its charter. Trustees announced they would appeal to the California Supreme Court.


June 20, 1913 [SBMP]: “Reports from Santa Cruz Island state that the spring shearing has revealed the fact that there are comparatively few sheep remaining on the island. It was commonly reported a year ago that the island was stocked with about 50,000 sheep. Less than 20,000 wsere sold during the round-up last year, and now only between 5,000 and 6,000 sheep can be accounted for by the shearers. It is believed that the deep canyons of the west end afford hiding places for hundreds of sheep that have become so wild that it is impossible to corral them. Threatened litigation between the Caire heirs is said now to have been adjusted and the family will retain control, one disgruntled member of the company having been bought out. Improvements contemplated include the fencing off the west end, so that future sheep-raising operators will not be attended by the losses that have marked the past. A. J. Caire and family are expected here within a few days to go to the island to spend the summer in the attractive bungalows constructed for them two years ago.”


April 3, 1914: San Francisco Superior Court Judge rules with an order to the Caires to distribute $35,000 derived from the sale of the property of the corporation. He further ordered them to sell the real and personal property of the company. He directs the distribution of certain money among the stockholders of the Santa Cruz Island Company and directing the defendants, as trustees, to sell the real and personal property of said company at public auction, the other being an appeal from an order denying the motion of the appellants for a new trial.


July 2, 1915: Aglae Capuccio’s husband, Goffredo dies of a stroke at Asti.


Later in 1915: The California Supreme Court reversed Judge Sturtevan’t ruling that the Trustees must sell all the corporate property and distribute all the cash. If the corporation has sufficient money to pay off the corporate debts, they could distribute the assets, including land in kind, to the shareholders rather than force a sale of the assets. The court noted that it did not affect the fact that the corporation had terminated and was to be wound up for the benefit of the stockholders.


January 1916: Joseph Bluxome, Caire family lawyer, is notified that Aglae has placed her matters in the hands of Ambrose Gherini, and out of the hands of Mr. Steiger.


December 16, 1919: ROSSI v. CAIRE 161 P. 1161 (Cal. 1916) decided December 16, 1916. This case involves two appeals, one from an order made on April 3, 1914, directing the distribution of certain money among the stockholders of the Santa Cruz Island Company and directing the defendants, as trustees, to sell the real and personal property of said company at public auction, the other being an appeal from an order denying the motion of the appellants for a new trial.

The Santa Cruz Island Company was incorporated under the California law in 1869 for the purpose of carrying on the business of raising and selling cattle and acquiring such property, real and personal, as should be convenient for that business. Its principal place of business was San Francisco. It acquired a large amount of personal property and also Santa Cruz Island, situated in the Pacific Ocean, in Santa Barbara County, containing about fifty-four thousand acres of land. On the thirtieth day of November, 1911, by reason of its failure to pay the license tax due under the act of March 20, 1905, and amendments thereto, said company forfeited its corporate charter. At that time the defendants, Arthur J. Caire, Fred F. Caire, Albina C.S. Caire, Delphine A. Caire, and Aglae S. Capuccio, were the directors of said corporation. The capital stock of the corporation was fifty thousand dollars, divided into one hundred shares of the par value of five hundred dollars each. At the time of said forfeiture of the corporate charter one Amelie A. Rossi owned seven of said shares. The remaining shares were owned in various amounts by the defendants in the case. On May 23, 1912, Amelie A. Rossi transferred to the plaintiff, Edmund A. Rossi, her seven shares and all her interest as stockholder in and to the property and assets of the corporation. Thereafter the said plaintiff began this action. Its object, as shown by the prayer of the complaint, is to enjoin the aforesaid directors from carrying on the business of the corporation and to compel them, as trustees thereof, to wind up its affairs, pay *77 its debts and distribute its assets to the stockholders according to their interests and, specifically, that they thereupon distribute to the plaintiff seven one-hundredths of said assets.

Answers were filed raising issues of fact, the cause was tried, and on June 9, 1913, the court made its findings and conclusions of law, and thereupon gave an interlocutory judgment declaring that the charter of the company was forfeited on November 30, 1911, that the said directors thereupon became trustees of said corporation and its stockholders, charged with the duty of settling its affairs, that the plaintiff and the other stockholders were entitled to an accounting from the trustees of the property and effects of the corporation, and to have distributed to them, after payment of its debts, their respective shares of said property. The decree also directed the trustees to publish a notice to the creditors requiring them to present their claims within a time stated, and that all claims not so presented would be barred from payment out of the funds in the hands of the trustees, and that they file a true and correct inventory of all of said property. It declared that all other proceedings in the settlement of the affairs of the company and distribution of its property were reserved for subsequent determination.

Thereafter the plaintiff moved the court for an order requiring the said trustees to distribute to the plaintiff and other stockholders the surplus funds in their hands, as shown by their account filed December 19, 1913, and also directing them to sell the real and personal property of the corporation in their possession as trustees at public auction, after such notice and on such terms as the court should see proper. On April 3, 1914, the court, in pursuance of said motion, ordered the trustees to distribute thirty-five thousand dollars of the money in their hands, derived from the property of said corporation, proportionately to the respective stockholders, within twenty days thereafter, and further ordered that said trustees proceed to sell the real and personal property of said company, at public auction for cash, after giving a certain prescribed notice. It is from this order that the appeal first mentioned is taken. The order denying a new trial, from which the second appeal is taken, was made upon a motion of the defendants to vacate the interlocutory judgment and the orders aforesaid, and for a new trial, *78 on the grounds that the evidence is insufficient to support the findings and interlocutory judgment or the said orders, that each of them was against law, and for errors of law occurring at the trial.


December 27, 1916 [SBDNI]: “Court denies division of Santa Cruz Island. Decision calling for division of Caire Estate is overruled by State Supreme Court. Possibilities of an early development of Santa Cruz Island as a pleasure resort, according to the suggestions and proposals of a number of capitalists again were delayed today by a decision of the state Supreme Court which overrules a superior court order for the distribution of the estate. The Supreme Court ruling leaves the estate, as it has been since the death of Justinian Caire, practically in the hands of his widow who refuses to allow even the renting or leasing of the island ground. As the case now stands, the island will not be sold to bring about a distribution to stockholders of the holding company. Superior Judge Sturtevant had decided that the island and property should be sold and the proceeds distributed among the stockholders of the Santa Cruz Island Company, principally Caire’s children and heirs. Mrs. Albina C. B. Caire, the widow, led the fight against the sale of the property, choosing that for sentimental reasons the island which brought wealth and happiness to her husband should not be sold during her lifetime. The original suit was brought by Edmund A. Rossi, son of Mrs. Amelie A. Rossi, a daughter of Caire, who sought to obtain a court order for the sale of the property. Justinian Caire obtained Santa Cruz Island years ago. He developed the property, which has an area of 54,000 acres, stocked it with cattle and developed a portion of it as vineyards.”


December 29, 1916 [Oxnard Courier]: “Widow Wins Fight Over Island Estate. Mrs. Albina C. B. Caire, widow of Justinian Caire, has won her suit in the supreme court of the state to prevent the sale of Santa Cruz Island and the distribution of the proceeds among the stockholders. She based her suit on sentimental reasons that the island, which brought wealth and happiness to her husband, should not be sold during her lifetime. Possibilities of an early development of Santa Cruz Island as a pleasure resort, according to the suggestions and proposals of a number of capitalists, again were delayed by the decision of the state supreme court which over ruled a superior court order for the distribution of the estate. The supreme court ruling leaves the estate, as it has been since the death of Justinian Caire, practically in the hands of his widow, who refuses to allow even the renting or leasing of the island ground. As the case now stands the island will not be sold to bring about a distribution to stockholders of the holding company. Superior Judge Sturtevant had decided that the island and property should be sold and the proceeds distributed among the stockholders of the Santa Cruz Island Company, principally Caire’s children and heirs. Mrs. Albina C. B. Caire, the widow, led the fight against the sale of the property. The original suit was brought by Edmund A. Rossi, son of Mrs. Amelie A. Rossi, a daughter of Caire, who sought to obtain a court order for the sale of the property. Justinian Caire obtained Santa Cruz Island years ago. He developed the property, which has an area of 54,000 acres, stocked it with cattle and developed a portion of it as vineyards.”


1916-17: Rossis file action for an accounting.


Early 1917: Judge Sturtevant dismisses the accounting action.


Date?: Rossi and Aglae appeal Judge Sturtevant’s dismissal.


1917: Amelie Caire Rossi dies.


May 17, 1918 [SBDN]: “Suit to secure her share of Santa Cruz Island was begun in superior court today by Aglae S. Capuccio, on complaint for partition of the property valued at $1,000,000 being filed with the county clerk. The defendents to the suit are Arthur J. Caire, Fred F. Caire, Albina C. S. Caire, Delphine A. Caire, trustees of the Santa Cruz Island company, a dissolved corporation and its stockholders, and Helene A. Caire and Edmund A. Rossi. The plaintiff claims she is the owner of a seven one-hundredths part of the estate and that upon the dissolution of the corporation a new one was formed without her knowledge or consent.”


June 21, 1918 [SFC?]: “To Whom It May Concern: In view of certain scandalous allegations made in various suits at law in which I have been made to appear as a defendant, I hereby declare and assert: That after the death of my husband, the late Justinian Caire, who made me his sole legatee, and until the month of May 1905, I was the sole owner and full possessor of the entire Capital Stock of the Justinian Caire Company and of the Santa Cruz Island Company, two corporations duly organized and existing under the laws of this State, and that until said time none of my children had any interest of any kind in either of said Corporations. That my daughters, Amelie A. Rossi and Aglae S. Capuccio did not have or possess any interest in either of said Corporations until the 21st day of December 1910, and that only on said day did they acquire an interest in the Santa Cruz Island Company and said interest was acquired through a gift made by me unto them (of property belonging to me), for love and affection. That all acts of my sons in the management of said Corporations have been performed in accordance with my wishes and under my direction and with my full approval and consent. I further declare that I do not hold myself accountable to any of my children for any disposition of my property made by me during my lifetime and hereby confirm any transfer of interest, of any kind or nature, that I have made to this date. When the Santa Cruz Island Company, through inadvertence, forfeited its charter, I became (under the law) one of the Trustees of the dissolved Corporation and I have taken part in all proceedings of the Trustees and in all matters pertaining to the rehabilitation of said Corporation and am at all times ready to accept the consequence of my actions in the premises. Oakland, Cal. June 21, 1918. Albina C. S. Caire”


June 23, 1918 [SFC?]: “The historic days of the Spanish dons in California, when valuable land grants were bestowed freely by the Mexican government to a chosen few, are recalled by litigation over the former estate of Justinian Caire, California pioneer and founder of the Santa Cruz Island Company, owner of Santa Cruz Island, off the coastline of Santa Barbara, comprising 56,000 acres, by two of his daughters, and the publication of a legal notice by his widow, Mrs. Albina C. S. Caire, 1426 Madison Street, Oakland, denying certain alleged malicious statements made against her and her two sons, Arthur J. Caire and Fred F. Caire, and her daughter Delphine Caire, as the result of suits now pending in the courts over the property. The publication by Mrs. Caire, the widow, is the result of a suit brought in Santa Barbara County by Aglae S. Capuccio against her and her two sons, Arthur J. Caire and Fred F. Caire, and her daughter Delphine Caire, as the trustees of the Santa Cruz Island Company, to compel them to partition the island or sell it, so that Mrs. Capuccio may come into possession of the value of her interest, which consists of seven shares of the 100 shares of the Santa Cruz Island Company. In the suit, Mrs. Capuccio accuses Delphione Caire and her two brothers of conspiring to defraud her, and to this Mrs. Albina Caire takes particular exception, for the reason that she has been acting as trustee and director jointly with the accused in the affairs of the island company. Another suit is pending against the same defendants in this city. The San Francisco suit was brought by Edmund Rossi, son of Mrs. Amelie Rossi, demanding that the affairs of the Santa Cruz Island Company be wound up and the proceeds divided among the parties interested in it, namely the two daughters of Mrs. Albina Caire, who are arrayed against her, and the two sons and two other daughters, who are on her side in the suit. Each of the children received in 1910 as a gift from their mother seven shares of stock in the Santa Cruz Island Company, and the suits are the outgrowth of this gift. The attorney in the suit brought in Santa Barbara county is Ambrose Gherini of San Francisco… The island was originally granted to Andres Castillero, a Mexican general, for services rendered to his country. Later the title passed from him to some English Barrons, who in turn conveyed it to the Santa Cruz Island Company, one of the founders of which was Justinian Caire, who gradually by purchases became sole owner of all the property. All of his holdings prior to his death were transferred to his widow, Albina Caire.”


July 13, 1918 [SBMP]: “’There will be no change in the management policy of Santa Cruz Island,’ says Arthur Caire of San Francisco, who is visiting in this city. ‘The island will be run as it has been for the last 20 years, purely as an industrial enterprise. With the exception of Captain Ira K. Eaton, no boating or camping privileges have been granted, as the management wishes to confine the island to the raising of cattle, sheep and to the wine industry,’ Caire declared. When asked what would become of the wine industry if the prohibition bill now pending before congress was passed, Caire shrugged his shoulders and said that they would have ‘to take their medicine like everyone else.’ He explained that the grapes were good for the making of wine only; that they could not be used for table or raisins. ‘We hope the bill, if passed, will allow time for the adjustment of affairs,’ he said, ‘but even then it is hard telling what can be done about the proposition.’ The wine producing industry on the island is a larger one. Approximately 70,000 gallons are produced every year. The Caire family is now camping on the island.”


July 14, 1918 [SBMP]: “Arthur Caire here to fight for Santa Cruz Island. The historic days of the Spanish don, when valuable land grants were bestowed freely by the Mexican government, are recalled by litigation over the estate of Justinian Caire, now pending in the courts of this county. In order to look after this matter, Arthur Caire of San Francisco is now in town to answer the suit brought against his mother, Mrs. Albina C. S. Caire; his sister, Delphine Caire; his brother, Fred Caire, and himself. The suit was filed by Mrs. Aglae S. Capuccio, a sister, who demands the partition of Santa Cruz Island, which is now in the sole possession of the Caire family. Mrs. Capuccio demands the partition of the island so that she may come into possession of the value of her interest, which consists of seven shares of the 100 shares of the Santa Cruz Island Company. She further charges the defendants with conspiring to prevent the winding up of the affairs of the corporation, which was dissolved in 1911 when it failed to pay its taxes, and in keeping control of the company and thereby preventing her from obtaining any revenue made by the plaintiff. Arthur Caire states that his mother takes particular exception to this charge as trustee and director jointly with the accused in the affairs of the island company. The value of Santa Cruz Island is now placed at $1,000,000 and in asking the partition the plaintiff sets the counsel fee at $75,000 and asks that all costs, including these fees, be paid by the parties interested in the island. Another suit is pending against the same defendant in San Francisco, wherein it is charged by Edmund Rossi, son of Mrs. Amelie Rossi, a daughter of Mrs. Albina Caire, demanding that the affairs of the Santa Cruz Island Company be wound up and the proceeds divided among the parties interested, namely, the two daughters of Mrs. Albina Caire, who are against her, and the two sons and two other daughters who are on her side in the suit. Each of the children received in 1910, as a gift from the mother, seven shares of stock in the Santa Cruz Island Company, and the suits are the outgrowth of the gift, it is said. In speaking of the approaching suit, Arthur Caire declared yesterday that his mother and four children, who stand by her in the suit, would fight it to the end. Caire has twelve more days in which to answer the allegations.”


July 27, 1918 [LAT/SB]: “Arthur Caire of San Francisco is here to look after the interests of his mother, Mrs. Albina C. S. Caire, in a suit brought by Mrs. Aglae S. Capuccio, a daughter, to secure the partitioning of Santa Cruz Island. The island is owned by the Caire estate, the plaintiff being entitled to seven of the 100 shares into which the stock of the Santa Cruz Island Company, holding corporation for the estate, is divided. The island is valued at $1,000,000. Another action affecting the Caire estate has been filed in San Francisco. Edmund Rossi, a son of Mrs. Amelie Rossi, daughter of Mrs. Albina Caire, demanding that the affairs of the Santa Cruz Island Company be wound up and the proceeds be divided between the parties interested, namely the two daughters of Mrs. Albina Caire who are allayed against her, and the two sons and two other daughters who are on her side in the suit. In 1910 Mrs. Albina C. S. Caire made each of her children a gift of seven shares of stock, and these suits are the outgrowth of the gift, it is said.”


February 12, 1919 [SBMP]: “Suit for partition of Santa Cruz Island to be tried soon. Suit involving the partition of the whole of Santa Cruz Island, or the sale of the property and the division of more than a million dollars among the individual owners, will soon be ready for trial in the Santa Barbara county superior court. The amended demurrer to the complaint is to be submitted to the court on briefs, as stipulated by the counsel for plaintiff and defendants yesterday. The defendants are given 20 days in which to file their opening brief. Twenty days time is allowed the plaintiff for reply, and the defendants are given 15 days to present their closing brief. Then the demurrer will be deemed submitted. The suit had its start May 16, 1918, when Aglae S. Capuccio filed a complaint for the partition of the island among the plaintiff and defendant owners. The defendants are Arthur J., Fred F., Albina C. S. and Delphine Caire, individually, and as trustees of the Santa Cruz Island Company, a dissolved corporation, and its stockholders, Helen A. Caire and Edmund A. Rossi and the Santa Cruz Island Company, claiming to be a revived corporation. The complaint alleges that plaintiff and defendants have an estate of inheritance in and are owners as tenants in common and hold and are in possession of Santa Cruz Island; the title of which was confirmed by a decision of the United States Supreme Court in an action entitled United States vs. Andres Castillero; that the plaintiff is the owner of an undivided 7-100 interest in fee simple; that the four Caire defendants and E. A. Rossi as successor in interest to Amelia A. Rossi are each owners of an undivided 7-100 interest, and that Albina Caire is the owner of 58-100 interest; that the defendants acquired title February 20, 1869, when the Santa Cruz Island Company was incorporated, for the purpose of raising cattle, and continued until November 30, 1911; that the corporation became defunct by proclamation of the governor, through failure of the corporation to pay its state corporation tax; it is alleged that thereafter the plaintiff and defendants became trustees of the corporation. The plaintiff avers that August 28, 1913, A. J., F. F. and D. A. Caire wrongfully applied trust funds to the payment of the corporation tax and caused themselves to be installed as directors of the alleged revived corporation and that defendants and Albina Caire have ever since claimed that the Santa Cruz Island Company is a revived corporation. It is further contended by the plaintiff that said revival of the corporation was nugatory and void, for the reason that all of the stockholders did not assent; but plaintiff and Rossi objected to the revival. It is alleged that the defendants conspired to prevent the winding up of the affairs of the dissolved corporation and prevent a distribution to plaintiff and to continue to control plaintiff’s interest and prevent her from obtaining any revenue therefrom and render her interest of no value, and thereby defraud her. The plaintiff charges that defendants as trustees of the defunct corporation transferred the property to the revived corporation without authority and that no deed of such conveyance is of record. She claims the market value of the property as being in excess of a million dollars and asks that her attorney fees of $75,000 be allowed. Her prayer is that she be adjudged the owner of an undivided 7-100 interest in the entire property between the parties as their interests may appear, or that the property be sold and the proceeds be divided. Ambrose Gherini of San Francisco represents the plaintiff; J. J. Squire, counsel. J. F. Bluxome and F. P. Deering are attorneys for defendants. The demurrer filed August 9 prayed for a dismissal of the action. The amended demurrer alleges that several causes of action have been improperly united in the complaint—the attempted action for partition of real property with an attempted cause for action for fraud, to quiet title, and to attack corporate existence.”


February 17, 1919: Court of Appeal of California, First District, Division One. ROSSI v. CAIRE 180 P. 58 (Cal. App. 1919) Decided Feb. 17, 1919. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge. Reversed. The facts are stated in the opinion of the court. D. Freidenrich, Ambrose Gherini and Orin K. McMurray for Appellant. Joseph F. Bluxome and Frank P. Deering for Respondents. The judgment is reversed and the cause is remanded for a new trial in the court below. Richards, J., and Kerrigan, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on March 19, 1919, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 17, 1919.


February 23, 1919 [LAT]: “Upon the outcome of a legal battle now pending in the Santa Barbara Superior Court for the partitioning of Santa Cruz Island among the Caire heirs hangs large development of the 60,000-acre island. A great pleasure resort, it is said, is destined for the island at no distant day, if the courts order the property partitioned. In the past four years several bids have been made for the property by resort promoters, and only three years ago the Caires conferred with Captain Hancock Banning in gathering information that would guide them in building a great hotel on their property. But the war put a check to these plans, and since then it has been reported that for sentimental reasons the island will never be changed from other than a sheep and cattle ranch, as long as the widow of Justinian Caire, the former owner, is living The island is conservatively valued at $1,000,000. But a court ruling in favor of Aglae Capuccio, a daughter , who seeks to have the Caire estate partitioned, would sweep aside sentiment, and mean the transforming of the island into a resort that would rival Catalina, it is said…”


February 1919: The California Appellate Court reversed the decision of Judge Sturtevant and said Rossi was entitled to an accounting.


Appealed by Caires: The judgment is reversed and the cause is remanded for a new trial in the court below. Richards, J., and Kerrigan, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on March 19, 1919, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 17, 1919.


State Supreme Court concurred, holding that when the corporation had died, the rights of the shareholders to receive the corporate assets became ‘vested.’


July 18, 1919 [SBMP]: “Demurrer avers island is owned by corporation; denies fraud charge. Trial of the suit for the partition of Santa Cruz Island among the several individual owners or the sale of the property and distribution of the money is still in the future, a demurrer having been filed yesterday by the defendants in the action brought in May of last year. The suit is of Aglae S. Capuccio vs. Arthur J. Caire, et al. The original complaint alleged that plaintiff and defendants have estate inheritance in and are owners of the island, the title of which was confirmed by a decision of the United States Supreme Court. Defendants are charged with wrongful appropriation of funds. It is alleged that they conspired to prevent the winding up of the affairs of the corporation and make a distribution of the funds, thus rendering it impossible for the plaintiff to derive any revenue from her interests in the property. The demurrer filed yesterday denies in general the allegations set up in the complaint and avers that plaintiff’s only interest is stockholder in the Santa Cruz Island Company , a revived corporation and owner of the island. Denial is made that defendants applied trust funds wrongfully or that the Santa Cruz Island Company is nugatory and void and aver that the Santa Cruz Island Company is an existing revived corporation. It is denied that the defendants confederated or conspired to prevent a winding up of the affairs of the corporation as to prevent distribution to plaintiff or her alleged distributive share or to defraud her in any way. There is also denial that the $75,000 asked for as attorney fee by the plaintiff is reasonable. The prayer of the demurrer is for judgment and costs of the action to be recovered from the plaintiff.”


August 15, 1919 [CDC]: “Island may be opened by suit. Action filed in Santa Barbara County Superior Court involves ownership of Santa Cruz Island… If a suit filed in Santa Barbara County superior court is successful, one of the wonder-spots of the Pacific coast will be thrown open to the public. The suit, which is brought by Aglae S. Cappuccio against Arthur J., Fred F. and Albina C. Caire, the Santa Cruz Island Company and others, involves the ownership of Santa Cruz, the largest of the Channel Islands… On Caire’s death the widow, holding one-half of the stock, combined her interests with those of one of her children, thus exercising complete control of the company and the island. A recent failure to pay the annual corporation tax gave the other heirs an opportunity to attack this control. The suit, it is believed by some of the protesting heirs, will result in the corporation’s being dissolved and the property divided into parcels in accordance with the stock holdings… There is a small settlement upon it. Part of the island is devoted to sheep grazing and part to wine grape cultivation, but the greater part is wild…”


September 16, 1919 [SBMP]: “Santa Cruz Island case set for January 13. The hearing of the Santa Cruz Island case, which has aroused much general interest here, was set yesterday for January 13. Leave to file amended answers and raise new issues were submitted to the court. This case is probably of the largest magnitude held in recent years in the local courts, involving partition of the entire Santa Cruz Island, or the sale of the property and the division of more than a million dollars among the individual owners. The attorneys for the plaintiff in court today were J. F. Bluxome and John J. Squier; for the defendants, D. Freidrichs and Ambrose Gherini.”


December 16, 1919: ROSSI v. CAIRE 161 P. 1161 (Cal. 1916) decided December 16, 1916. This case involves two appeals, one from an order made on April 3, 1914, directing the distribution of certain money among the stockholders of the Santa Cruz Island Company and directing the defendants, as trustees, to sell the real and personal property of said company at public auction, the other being an appeal from an order denying the motion of the appellants for a new trial.

The Santa Cruz Island Company was incorporated under the California law in 1869 for the purpose of carrying on the business of raising and selling cattle and acquiring such property, real and personal, as should be convenient for that business. Its principal place of business was San Francisco. It acquired a large amount of personal property and also Santa Cruz Island, situated in the Pacific Ocean, in Santa Barbara County, containing about fifty-four thousand acres of land. On the thirtieth day of November, 1911, by reason of its failure to pay the license tax due under the act of March 20, 1905, and amendments thereto, said company forfeited its corporate charter. At that time the defendants, Arthur J. Caire, Fred F. Caire, Albina C.S. Caire, Delphine A. Caire, and Aglae S. Capuccio, were the directors of said corporation. The capital stock of the corporation was fifty thousand dollars, divided into one hundred shares of the par value of five hundred dollars each. At the time of said forfeiture of the corporate charter one Amelie A. Rossi owned seven of said shares. The remaining shares were owned in various amounts by the defendants in the case. On May 23, 1912, Amelie A. Rossi transferred to the plaintiff, Edmund A. Rossi, her seven shares and all her interest as stockholder in and to the property and assets of the corporation. Thereafter the said plaintiff began this action. Its object, as shown by the prayer of the complaint, is to enjoin the aforesaid directors from carrying on the business of the corporation and to compel them, as trustees thereof, to wind up its affairs, pay *77 its debts and distribute its assets to the stockholders according to their interests and, specifically, that they thereupon distribute to the plaintiff seven one-hundredths of said assets.

Answers were filed raising issues of fact, the cause was tried, and on June 9, 1913, the court made its findings and conclusions of law, and thereupon gave an interlocutory judgment declaring that the charter of the company was forfeited on November 30, 1911, that the said directors thereupon became trustees of said corporation and its stockholders, charged with the duty of settling its affairs, that the plaintiff and the other stockholders were entitled to an accounting from the trustees of the property and effects of the corporation, and to have distributed to them, after payment of its debts, their respective shares of said property. The decree also directed the trustees to publish a notice to the creditors requiring them to present their claims within a time stated, and that all claims not so presented would be barred from payment out of the funds in the hands of the trustees, and that they file a true and correct inventory of all of said property. It declared that all other proceedings in the settlement of the affairs of the company and distribution of its property were reserved for subsequent determination.

Thereafter the plaintiff moved the court for an order requiring the said trustees to distribute to the plaintiff and other stockholders the surplus funds in their hands, as shown by their account filed December 19, 1913, and also directing them to sell the real and personal property of the corporation in their possession as trustees at public auction, after such notice and on such terms as the court should see proper. On April 3, 1914, the court, in pursuance of said motion, ordered the trustees to distribute thirty-five thousand dollars of the money in their hands, derived from the property of said corporation, proportionately to the respective stockholders, within twenty days thereafter, and further ordered that said trustees proceed to sell the real and personal property of said company, at public auction for cash, after giving a certain prescribed notice. It is from this order that the appeal first mentioned is taken. The order denying a new trial, from which the second appeal is taken, was made upon a motion of the defendants to vacate the interlocutory judgment and the orders aforesaid, and for a new trial, *78 on the grounds that the evidence is insufficient to support the findings and interlocutory judgment or the said orders, that each of them was against law, and for errors of law occurring at the trial.


January 2, 1920 [ODC]: “The trial of the suit filed by Aglae S. Capuccio against Arthur J. Caire et al has been set for January 13, and notice of the time of the trial filed with the county clerk. If this suit is successful, one of the wonder spots of the Pacific coast will be thrown open to the public as the suit involves the ownership of Santa Cruz, the largest of the Channel Islands… A recent failure to pay the annual corporation tax gave the heirs an opportunity to attack this control. The suit, it is believed by some of the protesting heirs, will result in the corporation being dissolved and the property divided into parcels in accordance with the stock holdings…”


December 14, 1920 [SBMP]: “With the denial yesterday by Superior Judge Crow of two motions in the extended litigation over Santa Cruz Island, the way was opened to take the case to the supreme court. One was a motion to set aside the interlocutory decree of distribution recently handed down by Judge Crow in the case of Aglae Capuccio against Arthur F. Caire and others, and the other was a motion for a new trial in the same case. Both were offered by Frank P. Deering of San Francisco, attorney for the defendants. The suit had its inception in May 1918 when Aglae S. Capuccio filed a complaint for the partition of the island among the plaintiff and defendant owners. The defendants are Arthur J., Fred F., Albina C. S. and Delphine Caire, individually, and as trustees of the Santa Cruz Island Company, a dissolved corporation, and its stockholders, Helen A. Caire and Edmund A. Rossi, and the Santa Cruz Island Company, claiming to be a revived corporation. Alleging that the defendants had conspired to defraud her of revenue and interest from her share of the estate, the plaintiff sued for partition, claiming to be the owner of an undivided 7-100 interest in the properties. There has been considerable discussion, as to the effect that a partition of the island would have on its future development. Since the Santa Cruz Island Company was first incorporated February 20, 1869 for the purpose of raising cattle, owners have steadfastly stood against any promotion by outside capital. Since the island case has come into the courts, however, there have been a number of rumors afloat as to probable ventures to be made should a partition be made and a portion of the land be put up for sale. One of these rumors was to the effect that a corporation of wealthy capitalists would at once bid for the land and attempt to establish an island resort on the same order as that maintained at Catalina.”


July 28, 1921, 1922: “San Francisco. No. 9402. In Bank.—July 28, 1921. Edmund A. Rossi, Plaintiff and Appellant, v. Arthur J. Caire et al., Defendants and Respondents; Algae S. Capuccio, Individually and as Trustee, etc. Defendent and Appellant.

[Edmund A. Rossi, Plaintiff and Appellant, v. Arthur J. Caire et al.] pages 544-553


July 29, 1921 [LAT]: “San Francisco. July 28. Edmund A. Rossi, San Francisco capitalist, was given a one-seventh interest in a fifty-nine [thousand?]-acre holding valued at $2,500,000 on Santa Cruz Island off the Ventura county coast, in a State Supreme Court decision today, which ended ten years’ of litigation over the property. Rossi originally was a stockholder in the Santa Cruz Island Company, which was formed to develop the island resources. The company became financially embarrassed and was refinanced. Rossi charged he was deliberately eliminated from the new company and sued for a seventh interest in its holdings.”


July 29, 1921 [OT]: “Court decides title to Island of Santa Cruz. Legal owners of land valued at $2,000,000 are named. Another chapter in the litigation which has surrounded title to Santa Cruz Island, consisting of 64,000 acres off the coast of Santa Barbara county, valued at $2,000,000, is now closed with the decision of the State Supreme Court that Edmund A. Rossi and Mrs. Aglae S. Capuccio are the legal owners of an undivided 14% of the property. Immediately after the decision was handed down, attorneys for Arthur J. Caire, Fred F. Caire and Delphine A. Caire, the defendants, gave notice that a petition for a rehearing of the case would be filed within ten days. Rossi brought the suit in the superior court of San Francisco in 1917 to force an accounting of the sum of $60,000 by Arthur J. Caire and others as trustees of the Santa Cruz Island Company, contending that the sum remained in the treasury of the corporation after the charter was forfeited to the date in 1911 for non payment of its license taxes. Rossi was joined in this suit by Mrs. Capuccio and a sister of the defendant Caires. The Supreme court held that on forfeiture of the charter the corporation becomes absolutely dead and its holdings belong to the individual stockholders as of the date of forfeiture. Title to the island dates from 1880 when it was acquired by Justinian Caire through an old Spanish [Mexican] land grant. The island company was incorporated in 1869. Santa Cruz Island is one of the California islands which Gen. Obregon, de facto president of Mexico, claimed for his country in a memorandum recently addressed to the state department at Washington.”


November 30, 1921 [LAT]: “The Superior Court yesterday granted Edmund A. Rossi an order for an accounting by former trustees of the defunct Santa Cruz Island Corporation involving Santa Cruz Island in the Santa Barbara group. Litigation over the island has been carried on in State courts for the past ten years.”


April 5, 1922 [OPC]: “Santa Cruz Island May Become Popular Through Development. Partitioning of Santa Cruz Island off the Ventura coast, in keeping with a final order of the supreme court of the state is expected to begin during the next few months. Several surveys, it is said, have been made of certain portions of the island, but to meet the full measure of the court's order it is declared the entire will have to be surveyed, so that the various subdivisions can be allotted by court order to the various heirs. In 1917, Edward A. Rossi, of San Francisco, one of the heirs of the Justinian Caire estate, brought suit in the superior court of Santa Barbara and in San Francisco asking for an accounting of some $60,000 by Arthur J. Caire, and others as trustees of the Santa Cruz Island company, composed of Caire heirs. Rossi set up the claim that the sum named remained in the treasury of the company after the company's charter was forefeited to the state for failure to pay the corporation tax in 1911. In this suit Rossi was finally joined by Aglae S. Capuccio, sister of Arthur Caire, Fred F. Caire and Delphine Caire. Judgment was given to the Caires on the ground that the company had been rehabilitated. The supreme court reversed this decision and ordered the prayer of Rossi and his co-petitioners, that the island be partitioned, be granted, and it is under this ruling of the supreme court that engineers will shortly begin the extensive surveys while will eventually divide the island, parcel by parcel, among various heirs. Much speculation is rife regarding what will follow after the final partitioning of the island. In some circles it is said there is a syndicate ready to buy certain parcels, that this syndicate has in view plans for an island resort that will put Catalina in the shade, and it is said that actual development of the island resort will begin just as soon as the syndicate is in possession of title.”


July 15, 1922 [LAT]: “San Francisco. July 14. Santa Cruz partition case is reopened. Supreme Court announces granting of hearing on appeal. San Francisco, July 14. The State Supreme Court announced today that it had granted a hearing on an appeal on a District Court of Appeal decision denying Mrs. Aglae S. Capuccio, the right to the partition of Santa Cruz Island, lying off the coast of Ventura and Santa Barbara counties. The Supreme Court order has the effect of putting the District Court decision aside, according to officers of the higher court. Mrs. Capuccio sued Arthur J. Caire and others for the partition on the ground that the original Santa Cruz Island Company, which included her one seventh interest in the island property, had been rechartered and refinanced without her consent, after its charter had been revoked for the non-payment of taxes. She won in the lower court, but the District Court reversed the judgment. The properties of the company are valued at $1,000,000.”


September 13, 1922: Rossi v. Caire [209 P. 374, 508 (Cal. 1922)] Motion to dismiss an appeal from an interlocutory judgment. Granted. Frank P. Deering and J. F. Bluxome for Appellants. D. Freidenrich, Orrin K. McMurray and Ambrose Gherini for Respondent. The facts are sufficiently set forth in our former decisions in the cases of: Rossi v. Caire, 174 Cal. 74 [161 P. 1161]; Rossi v. Caire, 186 Cal. 544 [199 P. 1042]. In the latter of these cases the judgment in the defendant’s favor was reversed and the cause remanded for further proceedings consistent with the views expressed in that decision. Thereafter the trial court made and entered its interlocutory judgment in the plaintiff’s favor, declaring the status of the plaintiff as a stockholder of the Santa Cruz Island Company, a defunct corporation, and directing the defendants as trustees thereof to render and file a full inventory and accounting of the properties of said corporation in their hands as thereof, and take all necessary and proper steps to obtain possession of all such properties. The decree further orders “that all further proceedings in the matter of the accounting and settlement of the affairs of the Santa Cruz Island Company are reserved for disposition as may be hereafter determined and adjudged therein.” It is from this decree that the present appeal has been aken and the ground of the respondent’s motion to dismiss said appeal is “that the said interlocutory decree appealed from is a nonappealable order.”

We think the motion must be granted. In the first case of Rossi v. Caire, 174 Cal. 74 [ 161 P. 1161], this court, in discussing a similar decree in a previous action between the same parties, for substantially the same relief, held that the judgment in that action "merely declared the status of the plaintiff as a stockholder, the number of his shares, his right to distribution and directed the trustees to give notice to creditors and file an inventory of the assets of the corporation. In its nature and effect it was preliminary and interlocutory and not final." The appeal in that case was from certain subsequent orders made upon the filing of such inventory and which directed the sale of the properties and distribution of the funds of the corporation as reported therein. This court held that these orders were appealable as final judgments and that upon such appeal "there may be a review of the previous proceedings, including the sufficiency of the findings to support the interlocutory judgment. These rulings cover the precise situation as presented upon the appeal except that the appeal in this case is from the interlocutory judgment itself. Said interlocutory judgment is not one of the interlocutory judgments, orders or decrees specified in section 963 of the Code of Civil Procedure from which appeals are permitted to be taken, and the court is therefore without jurisdiction of the attempted appeal. (Krotzer v. Clark, 178 Cal. 736 [ 174 P. 657].) It follows that this appeal must be dismissed and it is so ordered. Richards, J., pro tem., Shaw, C. J., Lennon, J., Lawlor, J., Wilbur, J., and Waste, J., concurred. *509


September 17, 1922 [LAT]: “Santa Barbara. September 16. Santa Cruz Island promises to be the scene of extensive resort development following a decision handed down by the Supreme Court at San Francisco, ordering the island, which lies off the Santa Barbara coast some thirty miles, partitioned among the heirs of Justinian Caire. Interests whose identity cannot be learned have been on the island during the past two weeks and from there comes word that an offer of $2,000,000 cash had been made to the Caire heirs for their interest. Surveyors made by these interests make the offer disclose, it is said, that there are at least eleven splendid hotel locations, each on a different bay or inlet of the island, and that if the sale takes place millions will be spent in developing an immense island resort of high class. Those making the offer, it is said, are prepared to start building hotels at once and to put on a line of fast pleasure steamers plying between the island bays and Port Los Angeles as well as Santa Barbara. For many years litigation among the heirs of Justinian Caire has kept the courts busy. It is claimed that the Supreme Court decision just handed down brings all this litigation to conclusion, thereby opening the way to the resort development suggested.”


November 1, 1922 [SBMP]: “Santa Cruz Island will be partitioned and developed... Instructions to proceed immediately with the partition was received yesterday by Frank F. Flournoy, one of the referees, from the attorneys of the two heirs. The other referees are George W. McComber and Frank M. Whitney. The Survey of the island is to be made under the direction of Mr. Flournoy, who said yesterday that the work would begin in the immediate future...”


November 11, 1922 [LAT]: “Santa Barbara. November 21. Court action holding up the partitioning of Santa Cruz Island has recalled the referees, F. F. Flournoy, G. W. McComber and F. M. Whitney, who were ready to start a year’s task of dividing the island into fourteen [seven] parts for the heirs of Justinian Caire under a Supreme Court order. Arthur J. Caire today filed a petition with the Superior Court asking that the referees be directed to first examine the island and report whether or not the property is so situated that partition can be made without great prejudice to the owners. If the report shows that the partition can be made without prejudice the petitioner, representing the Santa Cruz Island Company, asks that the referees be instructed in making such partition to set apart to the Santa Cruz Island Company eighty-six one-hundredths of the island. The contestants also have filed notice warning the referees to incur no expense in making surveys, charts, maps and classifications of the island, or surveys of water supply. This petition, which came just as the referees were sailing away to the island, will be argued next Monday in the Superior Court here.”


November 21, 1922 [ODC]: “Santa Cruz Isle to be partitioned, 14 parts. Santa Barbara, Nov. 21—Partitioning of Santa Cruz Island, in keeping with an order of the Supreme Court, started Monday. Former County Surveyor F. F. Flournoy, George W. McComber and Frank M. Whitney, all local men named by the court to make the division, today took their oath before County Clerk C. A. Hunt and leave for that island Monday morning. Their first move in the task while will require a full twelve months will take them on a cruise about the island to check up on the general contour and locate bays and streams. After that they will establish permanent camp and start on a foot tour to locate all the fresh water sources, look over and map the tillable land, the grazing land and timber areas. The island must be divided into fourteen parts, each part equal in value for division among the fourteen heirs in keeping with the court's ruling in the suit of Aglae S. Capuccio, daughter of the late Justinian Caire, whose estate held control of the island. Mrs. Capuccio brought suit against her brother, Arthur J. Caire, as head of the Santa Cruz Island Company, to secure the partitioning. She set up the claim that the Santa Cruz Island Company had lapsed as a legal entity because of failure to pay the [$5] corporation tax some years ago. Judge S. E. Crow of the Superior Court before whom the suit was tried here, gave judgment for the plaintiff. On appeal this judgment was reversed in the District Court of Appeal. The plaintiff carried it to the Supreme Court and the higher court set aside the reversal of the District Court of Appeal and affirmed the order of Judge Crow...”


January 9, 1923 [SBMP]: “Santa Cruz Island case up again for new court ruling. The Santa Cruz Island subdivision case bobbed up again in the superior court yesterday when an amended motion for order of instructions to referees was made by the defendants in the case of Aglae S. Capuccio against Arthur J. Caire and others. The original motion asking that the court instruct the referees, F. F. Flournoy, F. M. Whitney, and George W. McComber, not to go to great expense and to take orders from none except the court itself in subdividing the island in accordance with a decree upheld by the Supreme Court, was to have been ruled on January 15. The amended motion filed yesterday was taken under advisement by the court.”


January 14, 1923 [SBMP]: “Santa Cruz Island case up for order to three referees. The postponed motion of Aglae S. Capuccio against Arthur J. Caire and others asking court instruction to the referees appointed to subdivide Santa Cruz Island will be heard in the superior court of Judge S. C. Crow tomorrow morning, according to the calendar. The Supreme Court recently upheld the order of Judge Crow authorizing a subdivision in favor of Mrs. Capuccio against the Caire interests who control five-sevenths of the stock of the defunct corporation. The motion for instruction to the referees, Frank F. Flournoy, F. M. Whitney and George W. McComber was made by the Caire trustees, and asks that expense of subdivision be curtailed. The motion was filed some time ago, the day before actual work was to start.”


February 18, 1923 [SBMP]: “Referees will start island partition March 1. Legal obstacles put aside and party is ready to enforce court order. Resort plan hinted. Santa Cruz Island used as Mexican penal colony before U.S. took it over. Partitioning of Santa Cruz Island will begin about March 1, Frank F. Flournoy, one of the referees appointed by Judge S. E. Crow, announced yesterday. The court having denied a motion to hold up the work, nothing prevents immediate action, he said. At that time, Mr. Flournoy, accompanied by George W. McComber and E. J. Doulton, the other referees, will make an extended tour of the island and lay preliminary plan...”


March 13, 1923 [SBMP]: “New attempt to halt island partition. Caire estate appeals lost motion seeking to curb referees. Another step, aimed at to hold up the partition of Santa Cruz Island, was taken yesterday when the Caire interests, chief owners, filed a bill of exception, appealing to the higher court from the ruling of Judge S. E. Crow, which denied a motion to instruct the referees in the matter of expenses and making maps. In the motion made by F. P. Deering of San Francisco, it was claimed that existing maps and plats of the island are sufficient for the purpose of participation. The motion also asked that the court instruct the referees, Frank F. Flournoy, George W. McComber and H. J. Doulton, to take orders from none but the court in making the survey. It was held by the Caire interests in this motion that unnecessary expense will be incurred unless the referees are restrained by the court, and it was also requested that the referees first view the island and then report as to whether or not it can be partitioned without great prejudice to all parties. The motion, denied by Judge S. E. Crow, also asked that 86 percent of the island be set apart, intact, for the Caire estate, should it be found that a partition is advisable. The original motion was made in the superior court here last December after the Supreme Court had upheld Judge Crow’s decree ordering the partition. As the referees have started work on the island it is not believed that the appeal, instituted yesterday, will delay matters.”


March 13, 1923 [SBMP]: “Government may own portion of Santa Cruz Island under Mexican grant and patents. Research shows maps and plats in conflict, but over 3,000 acres uncovered by land patents; excess areas cause speculation. The United States government has claim to a portion of Santa Cruz Island. This became known last week when preliminary work was done preparatory to the sailing of the referees yesterday morning to start a partition of the island under decree of the Santa Barbara superior court, upheld by the Supreme Court, in the case of Aglae S. Capuccio vs. Arthur J. Caire, and others. Under the terms of the settlement, the Capuccio interests will be assigned two-sevenths of the estate and the Caire estate the remainder. One of the first questions to be considered by the referees, Frank F. Flournoy, George W. McComber and H. J Doulton, is how much of the island is contained in the original land grant...”


March 17, 1923 [SBMP]: “Engineers will survey island water line. Equipped with life lines, first accurate map will be made. Frank F. Flournoy, one of the referees appointed to partition Santa Cruz Island, will leave with a party of six surveyors Monday morning to make a detailed survey of the island. Mr. Flournoy, accompanied by George W. McComber and H. J. Doulton, the other referees, returned Thursday night from their initial trip. Making a complete cruise around the island in the Sea Wolf, under Captain Ira Eaton, they located nine camps for the survey to begin Monday...”


April 29, 1924 [SBMP]: “The Santa Cruz Island partition suit was placed on the court records again yesterday when the three referees appointed by Superior Court Judge S. E. Crow filed a preliminary report and a petition for allowance of expenses. Judge Crow set the hearing on the petition for May 13. The three referees, Frank F. Flournoy, George W. McCumber and H. J. Doulton, report, through Attorney W. G. Griffith, that they have made considerable progress in running the boundary line and in triangulation work, having spent approximately $8000 for expenses. They report that it will cost at least $20,000 more to complete the partition which was ordered by Judge S. E. Crow and affirmed by the supreme court. The suit to partition the island was brought by Aglae S. Capuccio against Arthur J. Caire and others and was decided in favor of the plaintiff, who represents two-sevenths of the stockholders of the company. The division of the island was halted several months ago when suit was opened in the United States district court in Los Angeles by the defendants, on the ground that the federal government has an interest in the island, dating back to a reservation of 100 acres for lighthouse purposes made when the original land grant was patented by the United States land office.”


September 3, 1924 [SBMP]: “Isle partition truce reached. Resumption of Surveys for division of Santa Cruz property planned. Decision to complete the partition of Santa Cruz Island in accordance with an order given by Superior Judge S. E. Crow and sustained by the Supreme Court was reached by the referees yesterday, according to Frank F. Flournoy. Mr. Flournoy, George W. McComber and H. J. Doulton were appointed to survey and divide the island between contesting owners and had completed about half the work when the suit was reopened in the federal courts. Mr. Flournoy and a party of engineers will leave for the island today and remain a week, he announced yesterday. The petition of the partitioners to the superior court to be allowed expenses for the work already done was continued until next Monday by Judge Crow yesterday. Suit to partition the 58,000-acre island was started by Aglae S. Capuccio, representing two-sevenths of the owners, against Arthur J. Caire, representing the other trustees of the defunct Santa Cruz Island corporation. The island company lost its corporation rights in 1919 by failure to pay the state tax and soon after that Mrs. Capuccio started her long fight to obtain control over her portion of the huge estate and the right to improve or sell it. Mr. Flournoy said yesterday that the partitioners are acting entirely on their own initiative in rushing the work of completion without awaiting the outcome of the suit in the federal courts.”


October 2, 1924 [SBMP]: “The survey of Santa Cruz Island which was ordered four years ago by the Superior Court will be completed in about 30 days, as soon as field notes are transcribed and maps completed, Frank F. Flournoy announced yesterday upon his return from the island. Mr. Flournoy is one of the three referees appointed by Judge Crow to settle the dispute over subdivision of the island. H. J. Doulton and George McComber will assist Mr. Flournoy in allotting two-sevenths of the island to the heirs represented by Mrs. A. Capuccio, while remaining portions will go to the faction headed by Arthur J. Caire. Mrs. Capuccio has announced her intention of improving the portion of the island allotted to her and possibly selling it. The division will be made so as to allow her two-sevenths of the appraised value of the island, including harbors and agricultural land.”


December 21, 1924 [SBMP]: “Partition of Santa Cruz to stir contest. Renewal of controversy over island is anticipated. Survey is finished. Case scheduled to be brought up in court tomorrow. Another contest over partitioning Santa Cruz Island is due to break in the superior court tomorrow when the final report of the referees appointed to survey and divide the island between contesting owners is submitted. According to Frank F. Flournoy, who heads the board of referees, the report is completed and either will be submitted tomorrow afternoon or on December 29 if all three referees cannot be present tomorrow...”


December 28, 1924 [SBMP]: “Island report will be read. Santa Cruz referees are scheduled to appear in court tomorrow. The final report of the referees on partitioning of Santa Cruz Island will be made to Superior Judge S. E. Crow tomorrow afternoon and set for hearing, according to the court calendar. The filing of the report will be the signal for another court battle in the seven years’ litigation to determine whether or not Mrs. Aglae S. Capuccio has a right to dispose of her one-seventh share of the island as she sees fit. Mrs. Capuccio has been upheld in her suit against the Caire estate by Judge Crow and the Supreme Court has confirmed his judgment. Frank F. Flournoy, H. J. Doulton and George W. McComber were appointed by the court to partition the 60,000-acre island as a basis for setting aside Mrs. Capuccio’s separate estate. It is this report which is due to be submitted to the court tomorrow.”


December 30, 1924 [SBMP]: “Island partition report postponed. The report of the referees on the partition of Santa Cruz Island was indefinitely postponed by Superior Judge S. E. Crow yesterday when he ordered the matter dropped from the calendar to be restored on five-days’ notice. The referees, Frank F. Flournoy, H. J. Doulton and George W. McComber, have completed their final report.”


February 10, 1925 [SBMP]: “Island report to be heard tomorrow. The hearing on the referees report on partitioning Santa Cruz Island will open in the superior court at 10 o’clock tomorrow morning when the contesting parties will be represented by San Francisco attorneys. The referees, Frank F. Flournoy, George W. McComber and H. J. Doulton, have retained attorney William J. Griffith to represent them in court in an effort to obtain their fee and expense allowance of approximately $28,000. The extreme east end of the island has been set aside by the referees to Mrs. Aglae S. Capuccio and Edmund Rossi, who, according to their attorneys, expect to develop it as soon as the referees’ report is accepted.”


February 27, 1925 [SBMP]: “Island suit peace seen. Two owners pay share of cost of dividing 62,000-acre tract. An early settlement of the suit over partitioning Santa Cruz Island was indicated yesterday when Mrs. Aglae S. Capuccio and Edmund A. Rossi paid their share of the cost of dividing the 62,000-acre estate between seven contesting parties. The significant part of the settlement made yesterday is the fact that court had allowed the parties 30 days after final acceptance of the referees’ report in which to pay the costs, and the final hearing has been set for argument on March 18. A receipt for $2372.58 was filed with the county clerk yesterday by Frank F. Flournoy, H. J. Doulton and George W. McComber. This amount covers costs only and does not include the shares of $37,500 commission already agreed to by the owners of the island. Mrs., Capuccio and Mr. Rossi have been allotted approximately 13,000 acres at the extreme east end of the island, but they have petitioned the court for an additional frontage between Prisoners’ Harbor and Punta Diablo, and for a public road between the east end of the island and Prisoners’ Harbor. The largest portion of the island, consisting of 51 percent of the total acreage, has been allotted to the estate of Mrs. Justinian Caire, who died in San Francisco several months ago. This property will be distributed to the heirs of her estate who are the other four contesting owners of the island.”


March 19, 1925 [SBMP]: “Court continues island hearing. Case will be reset by Crow next Monday; report also deferred. The hearing on the partitioning of Santa Cruz Island that was to have been held in the superior court yesterday morning was continued until next Monday, to be reset by Judge S. E. Crow on motion of attorney W. G. Griffith, representing the referees. Both the report of referees Frank F. Flournoy, George W. McComber and H. J. Doulton and the objection by Mrs. Aglae S. Capuccio and Edmund A. Rossi were continued yesterday.”


November 16, 1925 [LAT]: “Sues for fees. Attorney in famous case has trouble getting pay. Santa Barbara, Nov. 15. — Attorney Ambrose Gherini of San Francisco, who represented the Capuccio and Rossi interests in the division of the 62,000 acre Santa Cruz Island, lost his motion for $75,000 attorney's fees, on the grounds that his action was not to the benefit of all concerned, according to papers filed with the County Clerk. Although Mr. Gherini won his suit for division of the island, he must appeal to the Supreme Court if he continues his demand for fees from the losing parties. "Never before has the point been taken to the Supreme Court," Attorney John W. Heaney said. The case if appealed will have to stand on its own merits. Mr. Heaney represented the interests of the Caire family in the island division suit.”


January 21, 1926 [SBMP]: “As a means of perfecting an appeal in the supreme court, Attorney Ambrose Gherini of San Francisco, representing Mrs. Aglae S. Capuccio and Edmund A. Rossi in the Santa Cruz Island case, will petition Superior Judge S. E. Crow to settle reengrossed bills of exceptions at 9 o’clock this morning. The bills of exception as drawn up by Mr. Gherini, were made to Judge Crow’s order denying his motion to modify the report of the island referees in which the 62,000 acre estate was divided and to the Judge’s order sustaining opbjections to Mr. Gherini’s motion for allowances of $75,000 attorney’s fees. The present appeal is the fifth in the Santa Cruz Island litigation to be taken to the supreme court.”


1926: Aglae Capuccio sold the remainder of her island interests to the Rossi/Gheini family.


1932: Ambrose Gherini and his wife, Maria Rossi Gherini own all of the shares of the eastern end of the island—the two parcels received by Aglae Capuccio and the interests of Maria Caire Rossi in the partition action.


May 23, 1932: Capuccio v. Caire. Supreme COurt of California in Bank. AGLAE S. CAPUCCIO, RESPONDENT, v. ARTHUR J. CAIRE ET AL., DEFENDANTS; SANTA CRUZ ISLAND COMPANY, APPELLANT; EDMUND A. ROSSI, RESPONDENT. APPEAL from orders or decrees of the Superior Court of Santa Barbara County granting counsel fees in an action in partition. Frank C. Collier, Judge Presiding. Affirmed. This is an appeal from certain orders or decrees granting the plaintiff's motion for counsel fees, fixing the reasonable value of the fees at $75,000, apportioning the same between the parties to this partition action, and denying the appellant's application for special findings. The litigation out of which this appeal arises is of long standing, having received the attention and consideration of this court on several occasions. Its protracted character, and the effect upon this appeal of what has gone before, may best be illustrated by quoting from our most recent decision in the cause (207 Cal. 200 [73 A.L.R. 8, 277 Pac. 475]), in part as follows:

"The legal troubles and disputes of the parties to this action, in so far as these relate to their contentions upon these and certain former appeals, date their inception from the year 1912, when a certain corporation known as the Santa Cruz Island Company, and of which the parties to this litigation, or the predecessors of some of them, were the stockholders, failed to pay the corporate license tax due under the provisions of the act of March 20, 1905, and the amendments thereto, and in consequence forfeited its corporate charter. In May, 1912, Edmund A. Rossi, one of the appellants therein, acquired from Amelia A. Rossi her shares and interest as a stockholder in and to the property and assets of said corporation and thereupon commenced an action against the directors or trustees of said corporation, the purpose of which action was to enjoin the said directors and trustees from continuing to carry on the business of said defunct corporation and to compel them as the trustees thereof to wind up its affairs, pay its debts and distribute its assets among its stockholders according to their respective interest therein. When that action reached this court upon appeal one of the questions presented for determination related to the nature of the interest which the stockholders of such corporation had, respectively, in its real and personal properties and assets from and after the date of the forfeiture of its corporate charter, and this court, while holding that this question was incidental to the relief which was the main object of the action, nevertheless deemed it necessary to determine that, the corporation having ceased to exist and being thus no longer capable of holding the title of property, such property belonged to the persons who were its stockholders at the time it ceased to be a corporation, subject to the temporary possession of its directors, who, upon its dissolution, had become its trustees for the purpose of winding up the affairs of the former corporation and making distribution of its assets to the real owners thereof, which owners, in so far as the real estate was concerned, were held to have become tenants in common thereof. There were certain other matters determined upon said appeal not necessary now to be referred to, but the orders appealed from were reversed and the cause remanded to the trial court for further proceedings. The decision of this court upon that appeal was handed down on December 16, 1916, and the remittitur therein was duly issued thirty days thereafter (174 Cal. 74 [161 Pac. 1161]). Thereafter, and on August 8, 1917, another action was instituted by said Edmund A. Rossi, which had for its purpose that of obtaining an accounting and distribution among the former stockholders of said corporation according to their respective interests in its property arising from the forfeiture of its corporate charter. The principal questions presented in that action and upon appeal from the judgment rendered therein related to an attempted revival of said corporation under certain later amendments to the earlier statute under the terms of which it had suffered the forfeiture of its charter. When that action reached this court upon appeal it was held, in conformity with the earlier decision above referred to, that said corporation, having ceased to exist under the state law as it stood when its said charter was forfeited, it could not be the subject of a revival, at least in the absence of a consent on the part of all its former stockholders whose respective rights in and to its properties had become vested when such corporation had ceased to exist. This court in the state of said appeal did not deem it necessary to determine the precise nature of the interests of the former stockholders of said defunct corporation in its properties, but apparently assumed that that question had been correctly decided upon the former appeal. The judgment of attempted revivor was reversed and the cause remanded to the trial court for further proceedings not inconsistent with the views expressed in the opinion. The decision of this court upon that appeal was handed down on July 28, 1921, and in due course became final (186 Cal. 544 [199 Pac. 1042]). In the meantime, and while this latter action was pending upon appeal in this court, and in the month of May, 1918, the plaintiff herein instituted in said superior court the present action, which had for its purpose the partition of the lands of Santa Cruz island among the parties to this action who, the plaintiff alleged were tenants in common thereof. Santa Cruz island, which is the largest of the so-called Channel islands, is situate off the coast of the county of Santa Barbara, but is included within its boundaries, and consists of about 58,800 acres of land; and prior to the dissolution of the aforesaid Santa Cruz Island Company had constituted the real estate holdings of said corporation and the lands and real properties thereof to which, according to the terms of the first case of Rossi v. Caire, 174 Cal. 74 [161 Pac. 1161], the former stockholders of said defunct corporation had succeeded as tenants in common thereof. The trial court, upon the issue joined in this latter action, determined that the plaintiff therein was entitled to an interlocutory decree of partition of said real properties among the parties thereto and who constitute the tenants in common thereof in conformity with the earlier decision of this court in the first case of Rossi v. Caire. Upon appeal to this court the judgment of the trial court to that effect was affirmed in an opinion filed on September 14, 1922 (189 Cal. 514 [209 Pac. 367, 374]), and which in due course became final. Upon the going down of the remittitur upon that appeal the trial court proceeded to carry into effect its interlocutory decree through the appointment and activities of certain referees selected to make and to report a proper distribution of said real estate in conformity with the terms of said interlocutory decree, in order to enable said court to enter its final decree of partition therein. Upon the return and report of said referees, and during the time when the said court was proceeding to hear such matters as had relation to the form and content of its said final decree of partition, the plaintiff herein gave and duly caused to be served a motion to the effect that on Monday, September 28, 1925, 'the plaintiff will move the said court for reasonable counsel fees herein in favor of the plaintiff, to be paid by the parties respectively entitled to share in the land divided in proportion to their respective interests. Said motion will be made on the ground that said plaintiff is entitled to such allowance and that it is just and equitable that the same should be made'. At the time fixed for the hearing of said motion counsel for the moving parties therein, in presenting the same, stated to the court that the moving parties to said motion were making the same under the provisions of section 796 of the Code of Civil Procedure. The parties to said action other than the plaintiff and Edmund A. Rossi, one of the defendants therein, appeared and presented certain objections to the hearing and determination of said motion. The first of these objections related to the form of the notice of said motion and was based upon the ground that in said notice of motion it had not been expressly stated that said motion was to be a motion 'for reasonable counsel fees expended by plaintiff for the common benefit', as required by the provisions of section 796 of the Code of Civil Procedure. The second objection which was urged to the hearing and determination of said motion was the objection that in said action, which purported to be an action for partition, the defendants thereto other than said Edmund A. Rossi had denied and contested the existence of a cotenancy between the parties to said action, and hence that in the presence of and existence of such denial and contest counsel fees of plaintiff in said action were not allowable under the provisions of said section of the Code of Civil Procedure. This objection also went further, to the extent of setting forth that in said action certain other contested issues had been presented and determined and that as to all contested matters in said action both the plaintiff and defendants had been represented by counsel, and for this additional reason counsel fees were not recoverable to any extent whatever by the plaintiff in the action. Upon the presentation of the foregoing objections to the hearing and determination of said motion the moving parties thereto offered to produce witnesses in support of their motion, but the trial court, while holding that as to the first of said defendants' objections that it was technical and that the plaintiff's motion was sufficiently noticed under the provisions of section 796 of the Code of Civil Procedure and was so understood by counsel for the defendants, refused to permit the production of such or any evidence in support of said motion upon the ground urged in the defendants' aforesaid second objection and thereupon made and entered its order dismissing said motion..."
From this order the plaintiff appealed. (207 Cal. 200 [73 A.L.R. 8, 277 Pac. 475].) Upon that appeal, and in support of the order dismissing plaintiff's motion for counsel fees, the defendant (appellant upon this appeal) urged "that in a contested action for partition the plaintiff [is] not permitted to recover any counsel fees whatever under the . . . provisions of section 796 of the Code of Civil Procedure". In answer to this contention, and in reversing the order of the court below, this court said (at pp. 206, 209):
"We are satisfied that the foregoing objection to the hearing and determination of the plaintiff's motion for an allowance of counsel fees as made in the trial court under the provisions of section 796, Code of Civil Procedure, was and is not sustainable either under the provisions of said code applicable to actions for the partition of real property, or under the authorities cited by counsel for the respondents in support thereof, or under the facts and circumstances in the instant case. This, as we have seen, was an action for the partition of certain real property, which action was instituted and has been thus far conducted under the provisions of chapter IV, part II, title X, of the Code of Civil Procedure. This chapter of said code commences at section 752 thereof and extending to section 801, inclusive, thereof, embraces a complete and elaborate scheme for the institution and maintenance of an action for partition. It provides in section 752 thereof that such an action may be brought by any one or more of several cotenants owning real property as joint tenants or tenants in common and having an estate of inheritance or for life or lives or for years therein. It imposes upon the plaintiff in such action the duty of setting forth in his complaint the full details as to the interests of all other persons in the property and the nature of such interests or ownerships so far as known to said plaintiff. It requires that the plaintiff shall immediately record in the office of the recorder of the county or of the several counties in which the property is situated a notice of the pendency of the action containing the names of the parties so far as known, the object of the action and a description of the property to be affected thereby. It directs the issuance of a summons containing much more in detail than is required in the ordinary process issued in civil actions. It provides for the publication by the plaintiff of such summons and its service by that method upon all parties to the action whose share or interest is unknown and who themselves either reside out of the state or cannot be found therein. It further provides that when necessary the plaintiff may procure an abstract of title of the property to be partitioned for the inspection and use of all the parties to the action and requires that the expense reasonably incurred in procuring such abstract shall be allowed to the party incurring it. All of the foregoing requirements imposed upon the plaintiff in the first instance arise prior to any appearances on the part of the defendants in the action. This title of said code further proceeds to set forth a considerable number of important matters in the further course of the proceedings for the partition of the real property involved in said action, including the ascertainment of the rights of lien holders, the procedure for the appointment, qualification, services and report of referees to be appointed by the court for the purpose either of making a proper distribution of said property in kind and in severalty to those who may be found entitled thereto or to report and recommend a sale of said property either in whole or in part and the distribution similarly of the proceeds of such sale. It will thus be seen that from the inception of an action for partition instituted by any one or more of several contenants having the right as such and as plaintiffs to institute such an action there is a considerable succession of required procedural details which must be initiated and carried forward by the plaintiff or plaintiffs in the action and which at the final analysis inure to the common benefit of those parties to the action who shall be found to be respectively entitled to a share of the lands to be thus divided. It was doubtless for the purpose of making a just and equitable provision for the division of the expenses entailed either by the plaintiff or by any one or more of the defendants in pursuing the required courses for the partition of the property involved in said action whenever such expenditures could be shown to have been made for the common benefit that section 796 of the Code of Civil Procedure was formulated and embraced in said title thereof. Assuming that the action for partition was properly brought and that the trial court shall have so determined upon the issues as framed in said action and having so determined shall proceed to distribute said property or the proceeds thereof among the several persons so found to be the owners as cotenants of hitherto undivided interests therein we are of the opinion that the more just and equitable rule to be applied to such cases would require a proper division of the expenditures entailed in the maintenance of such actions for the common benefit among those who shall have been found to be entitled to their respective shares and interests in said property by the ultimate judgment of the court regardless of whether or not there had arisen and been litigated controversies either over the question as to whether or not the parties to the action were cotenants or over the extent of their respective interests as such in the property thus sought to be divided. It is not to be understood that in so holding we are deciding that the cost of litigating purely controversial issues arising in such actions between parties thereto who have their own counsel and are incurring their own costs in the effort to sustain their adverse claims shall be chargeable or recoverable against the losing party or parties to such controversy. It is evident that such was not the intent of the framers of section 796, Code of Civil Procedure, since it is expressly provided therein that it is only when the costs, including counsel fees entailed in said action, shall be found to have been expended for the common benefit that they shall be chargeable or recoverable by whichever of the parties, plaintiff or defendant, shall have so expended the same. The cases to which we have been referred by counsel for the respondents in support of said objection are not persuasive as

furnishing to this court a sufficient reason for interpreting the provisions of the title of our Code of Civil Procedure relating to actions for partition otherwise than as we have thus construed it, since in the main such cases have arisen in jurisdictions the statutes whereof differ materially from our own; or in cases other than actions for partition. We have been cited by appellants and respondents to the case of Watson v. Sutro, 103 Cal. 169 [37 Pac. 201], wherein in an action for partition in which the parties thereto were represented by opposing counsel and also in which certain parties had engaged in various controversies some of which at least involved their respective claims of title to the property in question and in which the attorney for the plaintiff sought to have allowed and apportioned among said parties certain counsel fees alleged to have been expended for the common benefit the trial court took testimony as to the reasonable value of the services so rendered by plaintiff's counsel for the common good and made an award and allotment therefor among the parties which it had found respectively entitled to share in the lands divided in proportion to their respective interests therein. This court affirmed upon appeal such award and allowance and in so doing placed an interpretation upon section 796 of the Code of Civil Procedure, which we are constrained to follow in the instant case. We are moved so to do by a consideration of the facts and circumstances which we have set forth in an earlier stage of this opinion and which have reference to the prolonged controversy between the parties to this action respecting the real estate which it was the purpose of this proceeding to partition between them."

The judgment was reversed and the cause remanded to the trial court for further proceedings upon the motion of the plaintiff for an allowance of counsel fees in accordance with the views expressed in the opinion. Upon the going down of the remittitur, plaintiff renewed her motion for counsel fees for services rendered for the common benefit, and the orders granting the motion and fixing the fees are the subject of the attack on this appeal.

In support of the motion, plaintiff's counsel testified at length as to the steps taken to bring the partition litigation to a successful conclusion. In view of the conclusion we have reached, we deem it unnecessary to here set out even a synopsis of his long and detailed testimony. It would unduly lengthen this opinion. In the witness' opinion, the reasonable value of the legal services rendered by plaintiff's counsel, over the eleven-year period during which the litigation progressed, was $75,000. In arriving at this figure, he excluded all services performed on the motion to modify the referees' report, on the motion to fix counsel fees, and on any and all collateral matters.

Plaintiff also offered in evidence the deposition of Mr. W. H. Devlin, a practitioner of long standing, who gave as his opinion that the reasonable value of the services rendered by plaintiff's counsel for the common benefit was $87,500. In arriving at this figure, the witness excluded from consideration all collateral matters, but kept in mind the protracted character of the litigation, as well as the great value of the property partitioned.

Defendants offered no evidence to controvert plaintiff's showing as to the reasonable value of the services rendered by plaintiff's counsel for the common benefit. Instead, by a series of objections, they attempted to exclude substantially all of the evidence offered by the plaintiff on the ground that the matters thus being elicited were controversial in nature, and therefore not competent to be considered on a motion to fix and apportion the reasonable value of the services rendered by plaintiff's counsel for the common benefit of all the parties to the action. The trial court overruled defendants' many objections, and awarded plaintiff $75,000 as the reasonable value of the services performed by her counsel for the common benefit, defendants' portion thereof being fixed at $64,500. The defendant Santa Cruz Island Company, having succeeded, pendente lite, to the rights of the other defendants, thereupon noticed this appeal.

It is earnestly contended by the appellant that the services performed by plaintiff's counsel in connection with the many controverted issues presented by the partition litigation may not be considered in fixing the reasonable value of the services rendered "for the common benefit". This is substantially the contention urged by and decided adversely to the appellant upon the last appeal (207 Cal. 200 [73 A.L.R. 8, 277 Pac. 475], from which decision we have quoted (supra). At the expense of repetition, we again quote briefly from our former decision. At page 208 it is declared: "Assuming that the action for partition was properly brought and that the trial court shall have so determined upon the issues as framed in said action and having so determined shall proceed to distribute said property or the proceeds thereof among the several persons so found to be the owners as cotenants of hitherto undivided interests therein we are of the opinion that the more just and equitable rule to be applied to such cases would require a proper division of the expenditures entailed in the maintenance of such actions for the common benefit among those who shall have been found to be entitled to their respective shares and interests in said property by the ultimate judgment of the court, regardless of whether or not there had arisen and been litigated controversies either over the question as to whether or not the parties to the action were cotenants or over the extent of their respective interests as such in the property thus sought to be divided. "

By this language, it was our intention to declare that counsel fees may be allowed under the provisions of section 796 of the Code of Civil Procedure for services rendered for the common benefit even in contested partition suits. Appellant can derive but little comfort from the following sentence, also appearing in our former decision: "It is not to be understood that in so holding we are deciding that the cost of litigating purely controversial issues arising in such actions between parties thereto who have their own counsel and are incurring their own costs in the effort to sustain their adverse claims shall be chargeable or recoverable against the losing party or the parties to such controversy." This sentence was inserted in the opinion for the sole purpose of caring for the exception provided for in the code section itself (sec. 796, supra), which, after providing that the plaintiff in a partition suit may recover reasonable counsel fees expended "for the common benefit", goes on to state: "When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them."

The evidence upon which the court below based its finding as to the reasonable value of the legal services rendered fails, in our opinion, to disclose the inclusion of any services falling within the statutory exception, and which should have been excluded in determining such reasonable value. The trial court was careful. Evidence of a competent witness called as an expert by plaintiff was excluded upon the ground that the witness, in arriving at his conclusion, had considered matters other than the services rendered for the common good of the parties. We are satisfied that the services considered by the trial court were services "for the common benefit" within the meaning of section 796 of the Code of Civil Procedure, as that section has been judicially construed in this particular litigation. (Capuccio v. Caire, supra.) That the fee so fixed is a reasonable one is attested by the nature and quantum of the services performed, the protracted character of the litigation, and the great value of the property partitioned. The stipulated fee of $37,500, allowed to the referees for services performed over the comparatively short period of a year, is also somewhat indicative of the reasonableness of the fee allowed by the court below for legal services performed "for the common benefit" over an extended period of time. We find no merit in the contention that an allowance of counsel fees under section 796, supra, is proper only when such fees have been actually "expended" or paid by the plaintiff, rather than merely incurred. A reasonable construction of the code section seems to require that the word "expended" be construed to be the equivalent of the word "incurred". (Chavez v. Scully, 62 Cal. App. 6, 8 [216 Pac. 46].) Though not appearing on the face of the opinion, the point was, in effect, decided adversely to the appellant when heretofore we reversed the order denying the motion for allowance of counsel fees (207 Cal. 200 [73 A.L.R. 8, 277 Pac. 475]), because the order there reversed was based in part upon the trial court's conclusion that only fees actually "expended" might be allowed under the code section, and the present appellant vigorously contended for such an interpretation in his briefs filed on that appeal.

What has been said sufficiently disposes of appellant's contention that it was entitled to findings "as to what services were upon required procedural details and what upon controversial issues". In fixing the counsel fees for services performed, the trial court properly excluded all evidence of services falling within the exception contained in the code, and considered all other services testified to as having been rendered "for the common benefit". That being so, there was no necessity for findings designating and segregating the various services.

Appellant next contends that plaintiff has transferred a two-sevenths part of her interest in Santa Cruz Island to her counsel, who are, therefore, parties in interest and not entitled to a fee. The code section provides for an allowance of counsel fees to the plaintiff, in which allowance the attorney has no personal interest. (Chavez v. Scully, supra.) Moreover, the uncontradicted evidence shows that the transfer, if any, was made in payment for work done for the individual benefit of plaintiff, and not for the common benefit, and that the agreement for such a fee was terminated and canceled upon the death of associate counsel. The transfer cannot, therefore, deprive plaintiff of her right to an award for counsel fees for services rendered for the common benefit. Any agreement which plaintiff might have had with her counsel looking to their reimbursement, while admissible in evidence for whatever assistance it might lend in measuring the reasonable value of the services performed, should not serve to deprive plaintiff of the fees provided for in section 796, supra. In addition, counsel for plaintiff testified, as already intimated, that the agreement introduced in evidence by the defendant had been terminated and canceled upon the death of associate counsel.

We find nothing further in the case requiring discussion. The orders or decrees appealed from are, and each is, affirmed. Curtis, J., Shenk, J., Tyler, J., pro tem., Preston, J., Langdon, J., and Seawell, J., concurred. Rehearing denied. 19320523


July 13, 1964: the Santa Cruz Island Company was dissolved (C0474269).


June 24, 1997: the Santa Cruz Island Company was activated by John Gherini (C2014882).