The "right of way" enters the golf club's property on its northerly boundary and runs in a wide curve to lands of Henry Doelger lying [ Cal. See Ocean Shore R. Doelger, Cal. The notice of appeal speaks of the "defendant and appellant" in the singular; the notice to prepare clerk's and reporter's transcript refers to the defendants in part in the plural and in part in the singular; counsel for the railroad company appeared below for both defendants; no specification is made in the appeal papers where "defendant" is mentioned as to which defendant is intended as appellant.
It was conceded, however, by defendants' counsel at the trial that Ocean Shore Railroad, Inc. In view of the ambiguity above mentioned we shall consider this appeal as being taken by both defendants but shall refer to "appellant" in the singular throughout the opinion.
The trial resulted in a transcript of over 2, pages, besides numerous exhibits. A motion for new trial made on behalf of both defendants was denied. After the Ocean Shore Railway Company predecessor in interest of the defendants was organized in for the purpose of constructing and operating a railroad along the coast from San Francisco to Santa Cruz, it acquired in by grant from the Spring Valley Water Company a right of way "for railroad purposes only" over the water company's property.
The railroad was operated for a number of years on tracks which never reached continuously from San Francisco to Santa Cruz; a mile gap in the line located part way between the two cities was bridged by bus service. In the company went into receivership, and its assets were transferred to the Ocean Shore Railroad Company, one of the defendants and appellant. This new corporation functioned as a public utility until the year when it applied to the California Railroad Commission and the Interstate Commerce Commission for permission to abandon operations as a public carrier.
The request was granted by the two commissions, and the railroad company also filed with the California Secretary of State a certificate of diminution of stock, stating that it was no longer a public utility. The company removed its tracks and ties, sold its rolling stock, equipment and terminal facilities and made some 20 distributions of assets to its stockholders. In its official applications the company stated that it proposed to engage in no other business than that incidental to liquidation and that it did not intend to reestablish a railroad.
