72 Cal. 371 | Cal. | 1887
This is an action to recover damages for trespass upon real property.
It is alleged in the complaint that for more than two years last past, the plaintiffs had been seised and possessed of all that certain tract of land in the counties of Fresno and Tulare, known as the rancho Laguna de Tache, containing about forty-eight thousand acres, and for which a patent, dated March 6, 1866, was issued by the United States to Manuel Castro; that on the seventeenth day of December, 1883, the plaintiffs were engaged in constructing a fence of posts and wire along the right bank of Kings River, which is the southern boundary of
The defendants, by their answer, deny that the plaintiffs are or ever were seised or possessed, or entitled to the possession, of the lands described in their complaint; deny that the plaintiffs at the time named, or at any time, were engaged in constructing, or had constructed, any fence along the right bank of Kings River; and deny that at any time they, or either of them, ever cut or destroyed any fence for any distance, on any sections, in any township or range, or cut or destroyed any posts on any sections, in any township or range, or at all, upon any lands of plaintiffs, or any or either of them, or that the posts or fence, alleged to have been cut or destroyed, were situate upon any lands of the plaintiffs, or either of them.
At the trial, the plaintiffs introduced in evidence the patent, with the map attached thereto, from the United States to Castro, deeds from Castro conveying the whole rancho-to Jeremiah Clark, and a lease of the whole rancho, dated May T, 1880, from Clark to-the plaintiffs, for a term often years. They then-called a-witness to prove the buildingof the fence and setting of the posts along the right bank of Kings River- on the seetions named, and that the fence and posts were cut and destroyed by certain parties, who said they were in the employment of defendants.
The defendants then called several witnesses, some of
The defendants then introduced in evidence swampland certificates of purchase, and patents from the state, conveying to the defendant, John Heinlen, all the lands lying between the river and slough, and on which the fence and posts were placed, except that part thereof lying in section 30, township 18 south, range 20 east, and for that they introduced a similar patent to Justin Esrcy.
The defendants then offered to prove by competent witnesses that for the last ten or fifteen years they had been in the quiet and peaceable possession of all the land described in their patents and certificates of purchase, and that they had continuously used and occupied it, by farming a portion of it, and grazing stock upon it. The plaintiffs objected to this testimony, upon the ground that the defendants had not pleaded the statute of limitations, and therefore it was incompetent and inadmissible under the pleadings.
The court sustained the objection, the defendants reserving an exception; and this presents the principal question for consideration in the case.
It will be observed that the plaintiffs claimed to be tenants of the property, and that they offered no proofs to show that they had ever taken, or been in, the actual possession of it. And that they did not claim possession is shown by statements made by their counsel during the
The question then is, What must a tenant show in order to maintain an action of trespass quare clausum?
In Pollock v. Cummings, 38 Cal. 685, the court says: “ In an action of trespass upon real property, the plaintiff may recover upon alleging and showing, in addition to the injury complained of, his possession of the premises; and his right to the possession is not involved, unless the defendant tenders an issue upon that fact, and in such case, as was said in Holman v. Taylor, 31 Cal. 338, the right of recovery depends both upon possession in fact and the right of possession.”
In Uttendorffer v. Saegers, 50 Cal. 496, the defendant pleaded a general denial, and the court said: “The action is trespass quare clausum. Its gravamen is the alleged possession of the plaintiff at the time of the entry of the defendant. In this view, the offer of the defendant to show that a tenant of the plaintiff, and not the plaintiff himself, was in the actual possession at the time of the alleged trespass, should have been allowed.”
In Raffetto v. Fiori, 50 Cal. 363, the plaintiffs obtained a patent for mining ground, and brought an action of trespass against the defendants for working the ground and taking gold therefrom. The defendants were in possession of the ground, claiming title thereto before the patent was issued; and when the action was brought and tried, it was held that the action of trespass could not be maintained.
There have been several other analogous cases in, this state, where it was held that the owner of land could not maintain replevin for crops harvested therefrom by one in the adverse possession of the land, the court saying: that the title to real property could not thus be tried in a personal action. (Page v. Fowler, 37 Cal. 100; S. C., 39 Cal. 412; Penneybecker v. McDougal, 46 Cal. 661.)
There are many other authorities to the same effect, but they need not be cited.
Here the defendants denied the plaintiff’s possession of the locus in quo, and offered to show their want of possession by proving that defendants had been in possession of the land, using it for farming and grazing purposes, for ten or fifteen years. The object was not to prove title in the defendants under the statute of limitations, and it was not necessary that the statute should have been pleaded in order to make the testimony admissible.
In our opinion, the court erred in excluding the offered testimony, and the judgment and order should therefore be reversed, and the cause remanded for a new trial.
Foote, C., and Hayne, C., concurred.
For the reasons given'in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.