63 Cal. 305 | Cal. | 1883
This is an action of ejectment. The plaintiffs had judgment as to defendants Burr, Wortham, and H. Jones, who have appealed.
The suit was commenced January 20, 1874, against Burr and one O’Reilly, who were served and answered. March 8, 1875, the plaintiffs filed an amended complaint, naming as defendants O’Reilly, Wortham, Burr, Silva, and John Doe Jones. A second amended complaint (on which, and answers thereto, the action was tried) was filed August 29, 1878, naming as defendants O’Reilly, one Haubricht, Burr, Wortham, Silva, Henry Jones, John Doe, Peter Roe, and Richard Roe, the last three
On the trial plaintiffs gave in evidence a patent of the State of California (swamp and overflowed lands), dated November 29, 1871, to themselves; also a certificate of purchase, dated September 9, 1859, to F. P. Tracy, together with evidence to show that they had acquired the right of F. P. Tracy under the certificate.
First. The evidence as to possession showed that O’Eeilly was not in possession when the suit was commenced, January 20, 1874. He had been in possession, and on the 10th of December, 1873, executed a deed to Burr and Northam, who have ever since claimed to own the land. From December 10, 1873 (when Burr and Northam took the deed from O’Eeilly), until about the middle of 1874, defendant Jones was in possession as tenant of Burr and Northam, at' which latter time Haubricht went in under lease from them; Haubricht was in possession at the time of filing the second amended complaint, by which he was made a party. It will thus be seen that when the suit was commenced, January 20, 1874, Burr and O’Eeilly were not proper parties defendant. O’Eeilly was made a party, but was not in possession; Jones was in possession, but was not made a party; and Burr being out of actual possession, ivas not joined with his tenant Jones.
By the first amended complaint, O’Eeilly was again erroneously made a party; and Silva, Jones, Northam, and Burr were joined with him. In the second amended complaint the error as to O’Eeilly was repeated; Haubricht (then in possession) was joined, as were his landlords Burr and Northam.
On motion of defendants’ counsel the court granted nonsuit as to defendants O’Eeilly, Haubricht, and Silva, and denied their motion for nonsuit as to Jones. The defendants then moved for nonsuit as to defendants Burr and Northam, and each of them, on the ground that it was not proven that either of them was in possession personally, or was the landlord of any defendant who was in possession at the time the action was commenced as against such defendant. As to these motions and rulings we have to say, the motion was properly granted as to
Second. The defendants assert that the land in controversy is located within five miles of the city and county of San Francisco, and claim that the patent is therefore void under section 70, Statutes 1869-70, p. 877. Conceding that the land is within the limits mentioned, it is sufficient answer to say that it appears from the certificate of purchase that the State received, September 9, 1859, payment in full for the land, and issued its certificate of purchase under the Act of 1858. (Statutes 1858, p. 198.)
The Act of 1858 did not forbid the sale of lands within the limits of five miles beyond the city and county of San Francisco. The purchaser had acquired vested rights under that act; by the terms of that act (§ 7) the purchaser or his assignee or legal representatives would be entitled to a patent after the lands should have been confirmed to the State. The Act of March 28, 1868 (Statutes 1867-68, p. 528, § 70), and the Act of April
Third. The defendants offered to prove that they and those under whom they claim had been in the exclusive, actual, and continued occupation and possession of the premises, claiming to own the same as against all the world, for more than ten •years prior to the issuance of the patent to plaintiffs, and for more than fifteen years prior to the commencement of this action; also that the State, or any one claiming under the State, had not received the rents, issues, or profits of the premises within that period. The giving of the testimony was objected to, and the objection was sustained.
This court held in Manly v. Howlett, 55 Cal. 94, regarding swamp and overflowed lands, that the certificate of purchase did not pass the title as title; that in a suit for the recovery of the land commenced after the issuance of the patent, the Statute of Limitations cannot be held to have commenced running prior to the date of the patent. The counsel for defendants, in commenting upon the application of the decision in that case to the case now before us, urge that sections 315 and 316 were not involved in that case, and therefore that decision has no application here. In a recent case in this court (Wright v. Rosebery, 63 Cal. 252), we had occasion to comment upon the effect of the acts of Congress regarding swamp and overflowed lands, especially the Acts of September 28, 1850, and July 23, 1866, requiring the commissioner of the general land office to" certify swamp and overflowed lands to the State. Although the Act of 1850 was a general grant to the State of all swamp and overflowed lands within the State, yet the character of swamp and overflowed would not be definitely fixed upon a specific tract until the action of the proper federal officers ; and the offer of the defendants did not embrace the proof that such action was had more than ten years before the suit was commenced. It is true the plaintiffs did not prove such action; but their patent raised the presumption that all neces
We see no error in the record prejudicial to the appellants.
The judgment is affirmed.
Thornton, J., and Sharpstein, J., concurred.
Hearing in Bank denied.
