123 P. 294 | Cal. | 1912
This is an action to quiet plaintiff's alleged title in fee to a tract of land containing some 16.75 acres described in the complaint as being situate in the county of Alameda, state of California, and sufficiently shown by the evidence to be in the city of Oakland in said county. There were exceeding one hundred defendants. The defendants answered, setting up their respective claims. At the trial, plaintiff having introduced his evidence and rested, a motion for a nonsuit, based upon seventeen grounds, was granted. Judgment of nonsuit was thereupon given. This is an appeal by plaintiff from such judgment.
The rules applicable in determining the question of the correctness of a ruling granting a nonsuit are well settled in this state. As was said in Freese v. Hibernia Savings LoanSociety,
The real claim in support of the ruling of the trial court is that plaintiff failed to sufficiently show any title in himself as to any part of the land.
The plaintiff did not in terms allege that he was in possession of any part of the land, his allegation in this regard being simply that he "is now and at all the times herein mentioned was the owner in fee of all that certain lot, piece or parcel of land" etc. No allegation of possession was essential, however, in view of the fact that our statute (Code Civ. Proc. sec. 738) authorizes the maintenance of an action of this character by any person, whether in or out of possession. The allegation that plaintiff is "the owner in fee" was a clear and unqualified allegation of a seisin in fee in "ordinary language" (see Payne
v. Treadwell,
Plaintiff's only proof of ownership of the legal title was such as tended to show actual possession of the greater part of the property at the time of the commencement of the action. *517 A quitclaim deed of the premises bearing date December 23, 1909, purporting to be the deed of the Oakland Prospect Homestead Association and Charles J. King and J.F. Crosset as the sole surviving trustees or directors of said corporation, and of Charles J. King and J.F. Crosset as individuals, to plaintiff, delivered to him on January 3, 1910, was introduced in evidence as the individual deed of Messrs. King and Crosset. There was nothing to show legal title to any interest in this land at any time in either King or Crosset. But there was absolutely nothing in the evidence tending to show that any of the defendants ever had any interest, legal or equitable, in any of the land, and so far as the land actually inclosed by plaintiff's fences is concerned, which will be referred to hereafter, nothing to indicate any prior possession on the part of any of the defendants except in so far as a "real estate sign" indicating one Cameron as an owner of some indefinite portion of the property was on the land. Whether this was the Cameron who was named as a party defendant, but who apparently did not appear in the action, is not shown. There were some ten or fifteen other "real estate signs" on various portions of the property at the time plaintiff took possession, but what they indicated as to ownership, if anything, did not appear. There were also in one place the remnants of an old fence, a few posts and old wires, but by whom constructed or originally maintained does not appear, and there was nothing to indicate any existing inclosure of any portion of the property involved in the action. There was an occupied dwelling-house on the property, but no connection is shown between the occupant of this house and any of the defendants and the ground upon which the same stood was not inclosed by plaintiff's fence, but was intentionally omitted from any taking of actual possession by him. There was also a dwelling-house in course of construction on another part of the land, but there is nothing to indicate that any of the defendants had any interest in the land upon which the same was being constructed. Whether this was included in plaintiff's inclosure did not clearly appear, but the matter is not of any particular importance. We have said this much to make it clear that at the time of the granting of the nonsuit, there was nothing tending to show that any of the defendants had any interest in the property or had ever been in possession of any part *518 thereof, and that it must be held, so far as this appeal is concerned, that they each and all occupy the position of strangers to the title. There was no such admission on the part of plaintiff on the trial as would warrant a different conclusion. Under the circumstances, there can be no doubt that in so far as plaintiff showed actual possession of the property at the time of the commencement of his action, he made a primafacie case of ownership against the defendants, unless the evidence given was such as to compel the conclusion, in view of the rules we have already referred to as applicable on a motion for nonsuit, that, notwithstanding such possession, he had no interest therein.
Learned counsel for defendants claim, as we have already indicated, that proof of actual possession is not sufficient to make out a prima facie case of ownership in an action to quiet title, and especially under such allegations of title as we have in the complaint before us. The contrary is thoroughly established by the decisions in this state. We have already shown that under such allegations as are presented, the plaintiff was entitled to prove ownership by any evidence competent for that purpose. It is declared by our statutory law to be presumed "that things which a person possesses are owned by him," and "that a person is the owner of property from exercising acts of ownership over it." (Code Civ. Proc., sec. 1963, subds. 11 and 12.) These provisions are in accord with the settled law everywhere, and while such presumptions are disputable and may be controverted by other evidence, they afford full and sufficient evidence of ownership of land unless controverted (Code Civ. Proc., sec. 1961). As against an entire stranger to the title, actual possession of land has uniformly been held, both in ejectment and actions to quiet title, to make out a prima facie case, sufficient to sustain a conclusion of ownership. (See Zilmer v.Gerichten,
There can be no doubt that the evidence was sufficient to support a conclusion that plaintiff did take actual possession of the greater portion of the property described in the complaint under claim of title in himself thereto on January 8, 1910, and did remain in such possession thenceforth. This action was commenced January 10, 1910. During the afternoon of January 8, 1910, between about 1:30 and 6:30 P.M. he inclosed such greater portion of the property in two separate parcels by the construction of substantial five-strand barbed wire fences, with redwood posts, twelve or fourteen feet apart, making two complete inclosures. It cannot well be claimed that these two parcels were not thenceforth each protected by a substantial inclosure (maintained by him), to an extent sufficient to satisfy the requirements of section
It is also to be borne in mind that so far as the evidence shows, none of the defendants had ever been in possession of any portion of the property, and that the evidence was not such as to compel the conclusion that any one at all was at the time of plaintiff's entry in possession of the property that was actually inclosed by him.
But the evidence must be taken as showing without conflict *521
that plaintiff's possession was taken by him in contemplation of this action less than two days before the commencement thereof, and with a view to the possible advantage to be obtained by him by being in possession at the time of the commencement of the proposed action. But we do not see that this detracts from the effect of his actual possession at the commencement of the action, as prima facie evidence of title in him as against third persons who are not shown to have any interest in the property or to have ever been in possession of any portion thereof. Learned counsel for defendants have cited some cases from other states as supporting the propositions that "the possession contemplated by the law is limited to possession peaceably and rightfully acquired," that "courts will not assume jurisdiction where the possession was acquired by use of unfair or corrupt means," and "that possession taken in contemplation of an action is not sufficient." As we have seen, there is nothing here to compel the conclusion that the possession was taken otherwise than peaceably, or that any portion of the property inclosed was in the actual possession of any other person at the time. This sufficiently distinguishes this case from that of Rubert v.Brayton,
We have gone over the evidence word by word to ascertain whether there was anything in the evidence to compel the conclusion as matter of law that notwithstanding plaintiff's actual possession of the greater portion of the land, he nevertheless was not the owner of any interest therein. If such a condition was affirmatively shown by the evidence, doubtless the prima facie presumption of ownership arising from mere actual possession should be held to be overcome. (See Shelton LoggingCo. v. Gosler,
We are unable to escape the conclusion that as to the property actually inclosed by plaintiff, a sufficient case was made to preclude the granting of a nonsuit for want of evidence of ownership of any interest in plaintiff. If, as is suggested by counsel for defendants, the plaintiff is, as matter of fact, without any interest in the property, and his action was "as bold and brazen a piece of land jumping as appears in the *523 history of land jumping in this state," it is unfortunate that defendants did not introduce the necessary evidence, which must have been easily procurable, and press the case to a judgment on the merits, thus terminating the litigation, instead of resorting to a motion for a nonsuit, generally a proceeding of the most doubtful expediency for one who is able to prove a good defense on the merits.
We see nothing in other claims made in respondents' brief in support of the action of the trial court in granting the motion for nonsuit. What has been said disposes of the claim made by the seventeenth specification of the motion. The tenth specification referred only to lands lying outside of the plaintiff's inclosure, as to which it may be assumed plaintiff made no case, but, as we have seen, the fact that a plaintiff fails to make aprima facie case as to a portion of the land involved does not warrant the granting of a motion for a nonsuit as to the remainder of the property as to which he has made such a case. There was sufficient evidence to support a conclusion that the lands inclosed by plaintiff's fences are a portion of the land described in plaintiff's amended complaint, with the possible exception of a "small portion, northwesterly portion" of one of the inclosures, which, according to the testimony of Mr. Squires, a civil engineer, had been improperly included within plaintiff's fence. But even if we should assume that by reason of the presence in such inclosure of this somewhat indefinite quantity of land not embraced in the description contained in the complaint, as to the ownership of which there is no evidence whatever, except plaintiff's possession, a motion for nonsuit could properly have been granted as to all the land embraced in said inclosure, which of course, is not conceded, it would still remain that the motion should not have been granted as to the other inclosure. No other special ground stated as a basis for the nonsuit requires discussion.
In view of our conclusion that the motion for nonsuit was erroneously granted, it is unnecessary to consider any other question discussed in the briefs.
The judgment is reversed and the cause remanded for further proceedings.
Shaw, J., and Sloss, J., concurred.
*524Hearing in Bank denied.