38 Cal. 666 | Cal. | 1869
Concurrence Opinion
The action is ejectment to recover a lot in the Western Addition to San Francisco, and the plaintiff relies on prior possession alone. On the first trial the cause was tried before a jury, which rendered a verdict for the plaintiff, and judgment was entered accordingly. On appeal to this Court, the judgment was reversed, on the ground that the evidence was insufficient to establish a prior possession in the plaintiff. On the second trial, the cause was tried before the Court, without a jury, and findings were filed, on which a judgment was entered for the defendants, and the plaintiff appeals. It is very evident that on the second appeal we
But all the findings must be construed together; and in the sixth finding the Court finds “that during said period of time, said plaintiff and her predecessors or grantors did not live upon or cultivate said premises, except as above stated in the fourth finding hereof, and did no other acts of possession on said Block No. 289, except to Tteep said fences in repair.” By the fourth finding, it appears that the plaintiff’s grantor erected a house and resided upon another portion of the larger tract, separate from the premises in controversy, and which was enclosed with a separate fence. I do not understand that the Court intended, in the third finding, to state that there was any other “ exclusive occupation” of the premises in controversy, except such as resulted from the erection of the fence and keeping it in repair. On the whole, I can perceive no means to escape the conclusion that the decision on the first appeal is conclusive of this, and I therefore concur in affirming the judgment.
Lead Opinion
This case has been here before, and will be found reported in 32 Cal. 15. It was brought here then by the defendants, and we reversed the judgment against them upon the general ground that the evidence failed to show, on the part of the plaintiff, such a possession as is required by the Van Ness Ordinance, or such a prior possession as is required by the common law, in order to maintain ejectment, and sent the case back for a new trial. It has been again tried, and this time the judgment was against the plaintiff, who has brought the case here.
In all essential respects the facts disclosed by the present record are the same as those presented by the record on the former appeal. Such being the case, we could not disturb the present judgment without in effect reversing our judgment on .the former appeal, which we could not do even if we were dissatisfied with our former judgment. Whether right or wrong, that judgment has become the law of this case.
Judgment and order affirmed.
Dissenting Opinion
I think the plaintiff entitled to a judgment on the findings. It seems to me that the findings present a stronger case of possession than was shown when the case was here before, and for this reason I think the former decision not conclusive. In my judgment, the findings show a prior possession in plaintiff’s grantors. I am, therefore, compelled to dissent. I think the judgment should be reversed and judgment for plaintiff entered on the findings.