47 Cal. 269 | Cal. | 1874
Lead Opinion
The plaintiff was nonsuited upon his opening statement. It appears therefrom that the plaintiff entered into the actual possession of the premises in controversy in Hovem
The plaintiff claims that by means of those acts, and the operation of the statutes above referred to, he acquired the title in fee to the premises. By the 5th section of the act of Congress of July 1st, 1864, all the right and title of the United States to the lands within the corporate limits of San Francisco, as defined by the Act of April 15th, 1851, with certain exceptions therein named, were relinquished and granted to the city “ for the uses and purposes specified in the ordinances of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, 1858, entitled an act concerning the city of San Francisco, and to ratify and confirm certain ordinances óf the Common Council of the city.’”
One of the ordinances referred to in that act is an ordinance which is commonly known as the Van Hess Ordinance. That ordinance having been ratified and confirmed by the Act of March 11th, 1858, took effect by relation, as of the date of its passage. The plaintiff’s position is that he took whatever right, title or interest the city then held, and intended to transfer by the ordinance, and that therefore he is one of the persons for whose use the right and title of
The right, title or interest which was transferred by virtue of the ordinance, may, for convenience, be denominated the Van Hess Ordinance title. The beneficiaries provided for by the ordinance may be divided into four classes: First, those who held title by virtue of the grants and conveyances enumerated in the ordinance; second, those who were in the actual possession, by themselves or by their tenants, on the first day of January, 1855, and so continued up to the twentieth day of June, 1855; third, those whose possession had been “ interrupted by an intruder or trespasser, ” and “had been recovered by legal process;” and fourth, those whose possession had been “interrupted by an intruder and trespasser,” and “may be recovered by legal process.” The plaintiff, if entitled to benefits of the ordinance, falls within the fourth class.
The defendants having been in the actual possession of the premises on the first day of January, 1855, claiming adversely to the plaintiff, and having continued in possession from thence up to the 20th day of June, 1855, and up to the commencement of this action, are prima facie entitled to the Van Hess Ordinance title; and the plaintiff, in order to show that he is entitled to the benefits of the ordinance, and acquired that title, must make it appear not only that his possession was “interrupted by an intruder or trespasser” —that is to say, that he ivas ousted from the possession— but also that the possession from which he was ousted “may be recovered by legal process.” The question as to whether he is entitled to the benefits of the ordinance, depends upon the construction to be given to the language of the ordinance, “ may be recovered by legal process.” By the words “legal process” is meant an action brought in a Court of competent jurisdiction. The only difficult matter for construction is the words “may be recovered;” and the question arising upon those words is whether they import a right of recovery only, or a recovery in fact—that is to say, whether the Van Hess Ordinance title devolved upon the person who then possessed the right of recovery as against
If this be the proper construction of the ordinance, the Van Ness Ordinance title has not vested in the plaintiff, and, of course, he cannot rely on it for a recovery in this action. The ordinance declares, in effect, that a person included in the fourth class, who shall recover the possession of the lands from which he was ousted, shall have the Van Ness Ordinance title, but does not declare, nor can it be inferred therefrom, that he shall receive that title not only as the fruits, but also for the purpose, of a recovery.
When such a person has only a prior possession, as the ground upon which to recover the possession from the trespasser or intruder, his rights and his remedies are measured by tlie-same rules that they would be in an action brought for the recovery of the possession of lands situated without said city, and in which the plaintiff relied solely on prior possession. The plaintiff’s opening statement shows only one ground upon which he can claim a right of recovery in this action, and that is his prior possession. The statute of March 11th, 1858, gave him no new or additional ground of recovery. It mérely ratified and confirmed the ordinance, leaving it in all respects, so far as regards the matters here involved, as it would have been had the Common Council, at (the time of the passage of the ordinance, possessed competent authority to dispose of the right, title, or interest of the city in or to the lands within its corporate limits, in the mode adopted by the ordinance. Nor does the plaintiff derive any aid in the solution of the question here involved from the Act of Congress of July 1st, 1864. The right, title, interest, or estate in, or power over, those lands which the city held, prior to the passage of the Act of Congress, she held subject to the control of the Legislature of the State alone; and Congress could not control the city in that respect, in any manner, or for any purpose whatsoever. The act of Congress merely relinquished and granted to the city, for the uses and purposes specified in the ordinance, whatever right or title the United States then held in or to the lands
The sole ground, as already stated, upon which the plaintiff can rely for a recovery, is his prior possession; and if he fails in that, the nonsuit was right. The defendants were in the actual possession of the premises on and before the first day of January, 1855, and so remained from that time up to the time of the commencement of this action— the seventeenth day of April, 1868—holding adversely to the plaintiff, and they set up the Statute of Limitations. The statute commenced running on the eleventh day of April, 1855, the day of the passage of the amendatory statute, and had fully run when this action was commenced.
If the construction we have given to the ordinance be maintainable, the Statute of Limitations is as applicable here as to a case in which the controversy turns on the relative right of the parties growing out of the prior possession of one party and the adverse possession of the other party, of lands situated without the city of San Francisco. "We see nothing in the case which leads to the conclusion that the Statute of Limitations is not applicable. Had the ordinance provided that the YanNess Ordinance title should vest in the person who should recover from an intruder or trespass!’ in an action to be commenced within a designated time, can it be doubted that a person claiming the benefits of the ordinance must have commenced his action within the designated time? There is nothing in the ordinance which gives a further or other time for the commencement of an action than is prescribed by the Statute of Limitations, nor can it be inferred therefrom that it was intended that such statute should not be applicable to actions that might be brought to recover the possession of the lands
Our conclusion upon this point is, that a person who comes within the fourth class of the beneficiaries provided for by the ordinance, and who at its passage had no other right or title than such as proceeded from prior possession, and who sues an intruder or trespasser to recover the possession of lands, in order to entitle himself to the Tan Ness Ordinance title, must have commenced his action within the time prescribed by the Statute of Limitations; and that the statute commenced running in this case upon the passage of the Statute of Limitations of April 11th, 1855; and that more than five years having elapsed, after that date, before the action was commenced, and the defendants, during all that time, holding the possession adversely to the plaintiff, the action is barred by the statute.
Judgment affirmed.
Dissenting Opinion
I cannot agree to the construction placed by the majority of the Court upon the second section of the Van Ness Ordinance.
No estate was acquired by any one by means of the ordinance alone; but, in considering its language, it is convenient to regard the ordinance as effecting the purpose intended. That purpose, as I understand it, was to release and grant (in prcesenti), the right and claim of the city to all the classes of persons mentioned in the second section. The section begins: “The city of San Francisco hereby relinquishes and grants,” etc. Much stress has been placed on the words, “has been or may be recovered by legal process;” “may” being considered the equivalent of “shall,” and the recovery by legal process held to be a condition precedent to the vesting of the grant. But it is admitted that the rights of such persons as were in possession during the period mentioned, and of those who, having been previously ousted, had recovered the possession before the passage of the order, became fixed—so far as the city could fix them—when the ordinance ivas adopted; and the granting words equally cover those who had not recovered the possession when the ordinance was passed, but who then had the right of possession by virtue of a prior occupation.
The persons included within the last class could ordinarily acquire the enjoyment of their property only by an action for the recovery of the possession—an action which would determine the prior possession and ouster; and the words “may re'cover,” etc., are simply a declaration of what would have been the legal effect of the grant had these words been omitted. With or without the clause referred to, a proper suit was the mode of ascertaining whether the plaintiff was entitled to the benefits of the ordinance when it took effect. The right and claim of the city was transferred at the date of the ordinance; the result of the legal process, if the plaintiff should be successful, being only to identify, the grantee and place him in possession.
If the plaintiff was connected with the pueblo title, an action by him was not barred by the Statute of Limitations until July 1st, 1869. (Montgomery v. Bevans, 1 Sawyer R., 653; Henshaw v. Bissel, Sup. Ct. U. S., Oct. T. 1873.)
I express no opinion as to the other questions presented by the record.