Grimm v. Curley

43 Cal. 250 | Cal. | 1872

By the Court,

Crockett, J.:

The land in controversy is a narrow strip, five or six feet wide, included within the fifty-vara lot numbered one thousand four hundred and two, in the City of San Francisco, and fronts on the dividing line between that lot and the fiftyvara lot numbered one thousand three hundred and eighty-one. The plaintiff deraigns title under a valid Alcalde grant to that portion of lot one thousand four hundred and two which includes the demanded premises, provided the executors of "Woodruff", the original grantee, had power, under his will, to sell and convey said premises without having first obtained an order of sale from the Probate Court; but I deem it unnecessary to pass upon that point, inasmuch as I think tlie defendants made out a valid defense under the Statute of Limitations.' The action was commenced in June, 1869, and it appeared in proof that the defendants entered more than ten years before the commencement of the action, under deeds purporting to convey to them severally portions of lot number one thousand three hundred and eighty-one. It further appears that they entered upon the demanded premises in good faith,- under the belief that said premises were a portion of lot number one thousand three hundred and eighty-one, and were included within their respective deeds.

It also appears that from the time of their entry they have been in the continuous, open, notorious, and adverse possession, claiming to hold and own the same adversely to all persons whomsoever. A possession of this character comes fully within the definition of an adverse possession, as established by an unbroken current of authorities. Nor can there be any doubt that the plaintiff, or his grantors, might, at any time during said adverse holding, within five years from the commencement thereof, have maintained an action to recover the possession. If the cause of action was not before barred, it was clearly so at the expiration of five years from the time, when the-Act of April 18th, 1863, amending the Statute of Limitations, took effect. (City of San Jose v. Trimble, 41 Cal. 536.)

J udgment affirmed.

Mr. Chief Justice Sprague and Mr. Justice Wallace did not participate in this decision.