28 Cal. 484 | Cal. | 1865
By the Court,
This is an action of ejectment. "The trial was by jury, who returned a special verdict upon issues submitted to them by the Court. Judgment was entered upon the findings in favor, of the defendants. The plaintiff appealed, and at the July term, 1864, the judgment was reversed by this Court and a new trial ordered, on the authority of Carpentier v. Webster. The appellant moves that the"order be vacated, and for judgment in his favor upon the special verdict.
The jury have found: First—That the plaintiff, on and prior to the first day of September, 1858, was, and that he still is, the owner in fee of the equal undivided half of the Rancho of San Ramon, embracing the premises described in the complaint, and of a further undivided interest equal to three hundred and twenty acres. Second—That all the
“ San Ramon, December 20, 1862.
■ “ Sir : You will please to take notice that the lands and premises now occupied by you are part and parcel of the Rancho San Ramon, of w,hich I am the principal owner, and that I demand to be let into the immediate possession and enjoyment of the same, and every part and parcel thereof.
“ Respectfully yours,
“ H. W. Carpentier.”
Fifth—The rental value of each of the parcels occupied by the respective defendants.
Two questions have been discussed by counsel—first, is the plaintiff entitled to judgment on the special verdict? and if so, then, secondly! for what amount by way of damages ?
The second question it will be unnecessary for us to con.sider, for we are satisfied that the special verdict does not lay an adequate foundation for a judgment in the plaintiff’s favor on the main question involved.
The trouble with the verdict is, that it does not find an ouster, either in terms or by legal conclusion. A demand is found, and a refusal matching the demand; but “ demand and
But it is insisted that the verdict finds an ouster of the plaintiff by all the defendants, except Stout, White, and' Slankard, prior to the demand and refusal, and independent of it, to wit: their unlawful entry upon the premises in September, 1858—a year and a half before the rights of the defendants as tenants in common were acquired.
It is said, in support of this position, that the possession acquired in 1858 was by disseizin, and it is added, “ that the possession never lost its hostile character;" and it is upon this assumption of fact that the whole argument turns. But the verdict demonstrates that the possession unlawfully taken in 1858 did lose its hostile character, prima facie, on the 9th of March, 1860, when, as the verdict finds, they became tenants in common with the plaintiff. The moment the defendants became tenants in common with the plaintiff, their possession lost its hostile character by the legal effect of the fact; and it cannot be presumed that the possession was otherwise than amicable thereafter, until the contrary is made to appear.
It is further claimed that an ouster is manifested on the face of the answers; and here we are referred to Harrison v.
Though we have declined to pass upon the question of the amount of damages to which the plaintiff is entitled, for the reason that on this record it doe? not appear that he is enti-' tied to any, still, as the case must go back for a new trial, under the order already made, we deem it proper to state the principles by which the question of damage must be controlled. . ,
As to damages which accrued prior to March 9th, I860, . traceable to the ouster of 4 858, they cannot be recovered in this action. For the reasons already stated, that ouster has become unavailable as a basis of recovery in chief, and it is therefore unavailable in this action as a ground for the recovery of damages resulting from it. A party may recover specific real property, “ with damages or without them,” (Prac. Act, Sec. 64,) but when he sues to recover such property with damages, he cannot recover damages if he fails to recover the property. The Practice Act states an exception to this rule, í>ut the case at bar is not within it. (Prac. Act, Sec. 256.)
As to damages during the interval between the 9th of March, I860, when the defendants, or most of them, became tenants in "common with the plaintiff, and the demand and refusal of December, 1863, neither damages nor rents -and profits can be recovered in this suit, for in legal judgment the possession of the defendants during that time was not adversary, but amicable, and in strict keeping with the title.
As to damages that have accrued since the demand and refusal, if it shall turn out as matter of fact that the refusal was not supported by some legal right to refuse—having in
Motion for judgment on the verdict denied.
Mr. Justice Rhodes expressed no opinion.