32 Cal. 15 | Cal. | 1867
Lead Opinion
It appears from the testimony of the plaintiff’s witnesses that Tracy, from whom the plaintiff deduces title, claimed the south half of Block Number Two Hundred and Eighty-nine, in the Western Addition to San Francisco ; that Flint claimed the northern half of the block; that in 1853 Tracy and Flint jointly inclosed the whole block with a fence; that the fence was five feet high and consisted of posts eight feet apart and two rails, two by three inches; that in June, 1862, a cross fence was built which, with other fences, constituted the northern fence of the southern half of the block—the premises in controversy; that the fences were from time to time repaired as the rails were found down, up to the entry of the defendant’s grantor; that the lots and the adjacent streets, were covered with scrub oaks when the fence was built, and1 have so continued, and that the plaintiff and those under whom she claims have done nothing on the lot besides the building and keeping up of the fences.
There can be no doubt that those acts on the part of the plaintiff’s grantors were not sufficient to entitle them to the benefits of the Van Ness Ordinance. They did not have such
The plaintiff does not rely for a recovery solely upon title acquired under the operation of the Van Ness Ordinance, but also contends that she is entitled to recover on the ground of prior possession and the usual legal presumption arising therefrom. In each of the opinions delivered in Wolf v. Baldwin, the position which was requisite in order to answer the demands of the Van Ness Ordinance, was defined in terms more comprehensive than would be necessary in describing such possession as would be held sufficient when shown by a person claiming the benefits of the Statute of Limitations. Something it was thought was due fo the word “ actual ” as qualifying “possession,” and also to the words “occupied and possessed,” as they are employed in the proviso to the first section; and the object of the ordinance was kept in view, which was considered to be “ to protect actual possessors— parties who were seeking by settlement to build up houses within the city limits, and not migratory squatters or mere land speculators.”
Adverse possession may be sustained upon evidence that does not come up to the full measure indicated in that case, as required of those claiming under the ordinance. The party setting up adverse possession, in most cases wherein he prevails, proves that he or his tenants or agents resided upon or
The difficulty attending the attempt to define possession of lands, or to lay down precise rules by which the sufficiency of a given state of facts to constitute possession may be determined—whether it is such as is required to be shown by a person claiming adversely without color of title, or by one relying on prior possession—has often been experienced and admitted by Courts of the highest standing; and indeed none but very general rules can be laid down, leaving each case to depend mainly on its own circumstances. All concur in one respect, and that is the only point involved here, taking the case as presented by the plaintiff’s testimony, and that is, that the possession must be actual. (See 2 Smith’s Lead. Cases, notes to Nepean v. Doe; 2 Wash, on Real Prop. 480.)
A difficulty is again encountered in defining actual possession. It is a mixed question of law and fact. The facts being
The general rule as first stated, without the subsequent modifications or exceptions, very nearly conforms to the doc
These provisions of the statute were not adopted as rules applicable in cases of asserted prior possession, but there is no difference as to the mode of acquiring or holding the actual possession in the two cases, and the acts that would be required in one case will suffice in the other; so that when the actual possession is shown in support of a claim to prior possession, if there is also proven the claim of title in hostility to that of the true owner, it will amount to adverse possession. The statutory rule "recommends itself by its simplicity and comparative certainty, and no good reason appears why it should not also be applicable to cases of prior possession.
Under that rule, the inclosure which is relied upon to establish prior possession must be shown to be substantial. The purpose of an inclosure is to protect the land; and to be considered as substantial it must be sufficient to protect the land against the intrusion of cattle—not that it must be so high, strong and close as to preclude the possibility of its being broken, but it should be of such strength as a prudent farmer erects to protect his growing crops. An inclosure that falls short of this serves no other purpose than to mark the
The fences which constituted the only inclosure of the lots in controversy, admitting that they were erected and maintained as the plaintiff’s witnesses stated, fall far short of a substantial inclosure. ' We are therefore of the opinion that the defendant’s motion for a nonsuit should have been sustained.
Judgment reversed and the cause remanded.
Dissenting Opinion
The evidence shows an-inclosure by a fence—not very substantial, it is true—maintained during a period of more than ten years, and other acts of dominion exercised over the lot by the plaintiff and her grantors. It also discloses a recorded title derived from the original locators of a larger claim taken
Concurrence Opinion
I concur in the judgment on the ground that the plaintiff’s evidence had no tendency to prove a possessio peclis.
Dissenting Opinion
While I am of the opinion that the plaintiff’s fence was not of a character sufficient to constitute an adverse possession against the true owner, it was, taken in connection with the other proprietary acts exercised by the plaintiff and her grantors in respect to the property, sufficient, in my judgment, to establish her possession and right ,of possession as against tortious intruders; therefore J dissent from the conclusion to which a majority of the Court have come.