190 Cal. 168 | Cal. | 1922
Lead Opinion
The following portion of the opinion of the district court of appeal is adopted as correctly stating the facts of this case:
"This case was formerly before the Supreme Court (
"As to said agreement of purchase, appellants admit that the evidence is sufficient to support the finding of the court and 'that it is now too late to argue evidence in which there is a conflict or urge the relative equities of the parties as to matters upon which the finding of the lower court is conclusive.' They contend, however, that their case is that of an innocent purchaser for value without notice of plaintiff's equities. In this connection, it is conceded, though, that notice was imputed to them of the occupany of the land covered by the buildings, a small tract, the extent of which was not shown by the evidence. But as to the lands not so occupied by the buildings, their claim is that plaintiff 'did not use or possess them in such a manner as to give notice *171 to an innocent purchaser of the legal title such as defendant.' "
[1] The crucial question in this case is as to whether the evidence was sufficient to establish such actual possession of the premises in question by the plaintiff as to impart notice of his rights and equities therein to the defendant as purchaser of the entire tract of which these premises were originally a portion from the estate of John L. Ivett, deceased. As to the possession by the plaintiff of that portion of said premises occupied by his dwelling-house, outhouses and corral, the evidence in the case sufficiently shows that shortly before the purchase by the defendant of the Ivett properties from the estate, the president and manager of the defendant corporation, during a visit of inspection to and over said properties, saw the buildings and improvements of the plaintiff upon that portion thereof involved in this case, and hence had actual knowledge that the plaintiff was residing upon and occupying at least that portion thereof upon which such buildings and improvements actually stood at the time of such inspection. The appellant, however, contends that since the plaintiff was not in possession of any portion of the premises under color of title his possession of the portion thereof occupied by his said improvement did not suffice to impart notice of his claim of ownership of the entire tract of forty acres, which he now seeks to have conveyed to him. We are of the opinion, however, that it is not necessary to discuss the question as to whether the plaintiff herein does or does not hold under color of title, in view of our conclusion hereinafter expressed as to the nature and extent of the plaintiff's actual possession of the entire tract. In the present case the evidence goes much further than that of merely proving that the plaintiff was in actual possession of the limited area occupied by his dwelling, outhouse and corral, since it sufficiently appears that from the time in the year 1888, when the oral agreement for the purchase of said forty acres of land was made between the plaintiff and John L. Ivett, the plaintiff took and held possession of the whole of said forty acres of land, and he then proceeded and has ever since continued to put said land and the whole thereof to the ordinary and usual uses to which said land was adapted, viz.: to that of grazing or pasturage purposes; that of pasturing his own cattle and horses upon said land and that of keeping all other stock off said land. It is true that there is *172
also some evidence that when the feed ran short upon his own land he permitted his stock to go on the adjoining lands of Ivett by an agreement with the latter that he might do so; but we do not regard this latter circumstance as entitled to much significance, and certainly not as a controlling factor in determining the sufficiency of the plaintiff's possession of the land; [2] since in reason, as well as upon authority, a possessor of land using the same for pasturage could neither be expected nor required to continuously keep his stock upon his land after its feed was gone in order to avail himself of his rights of possession dependent upon his use of the premises for pasturage. (Coryell v. Cain,
The judgment is affirmed.
Shaw, C. J., Lennon, J., Waste, J., Lawlor, J., and Sloane, J., concurred.
Dissenting Opinion
I dissent.
As to the property unoccupied by the buildings and corrals of the plaintiff, I think the evidence is insufficient to justify the finding of notice by reason of possession, because the possession established by the evidence as to the balance of the forty acres is not that open and visible possession indicating occupation adverse to the record title within the rule as laid down by this court in Randall v. Allen,