95 Cal. 206 | Cal. | 1892
This is an action of ejectment, and was commenced by plaintiff on February 20, 1866, in the former district court of the fifteenth judicial district, against John Butler and P. H. Owens, who were the only persons named as defendants. In the complaint it is averred that on the first day of January, 1863,
There was a former appeal in this case, reported in 69 Cal. 573; and from the opinion of this court, then delivered, it appears that Butler and Owens answered, denying all the averments of the complaint, averring that J. P. Treadwell was “ the owner and in possession” of the land sued for; that they (Butler and Owens) were there only by license of Treadwell, and praying that the latter be allowed to defend the action, and that they be dismissed; and that by leave of court Treadwell filed an intervention in which he set up matters upon which he claimed certain equitable relief. It appears further, that the district court, after having impaneled a jury to try the cause, and after the trial had commenced; concluded to try what were supposed to be the equitable issues first, and against the objections and exceptions of plaintiff, discharged the jury, and after a hearing of said equitable issues, rendered judgment perpetually enjoining plaintiff from further prosecution of his action. But on the appeal from that judgment this court held that there were no equitable issues, and that plaintiff was entitled to a jury trial, and reversed the judgment, with directions to strike out the intervention, and that the representative of the intervener (said Treadwell in the mean time having died) be allowed to defend the action.
When the case went down to the superior court, new answers were filed for Owens and Butler; and Mrs. Mabel Treadwell, who was then administratrix of said J. P. Treadwell, filed an answer, by leave of court, in her own name. In her answer she denied all the averments of the complaint; and she averred that at the commencement of the action, and for more than five years prior
There is only one assignment of error occurring during the trial, which will be noticed hereafter. The main contentions of appellant are, that the evidence is insufficient to justify the findings of fact, and that the decision is against law. It is clear, however, that if the findings are justified by the evidence, then the conclusion of law and the judgment are correct; so that the real question in the case is, Does the evidence justify the findings ?
At the trial, by consent of the parties, a large part of the testimony taken at the first trial was read without recalling the witnesses, and two or three depositions were introduced; and appellant contends that when a case has been decided by the lower court upon this kind of evidence, the rule that this court will not disturb a finding when there is a conflict of evidence does not apply, and that this court should sit practically as a
But even if the rule were as appellant contends, it would not apply to the case at bar; for in this case two or three witnesses, including the plaintiff himself, whose former testimony was read, were re-examined at the last trial, and about fifteen new witnesses were examined, whose testimony was to a large extent important and material; and under these circumstances, it is quite clear that the general rule as to conflicting evidence applies. (Blum v. Sunol, 63 Gal. 341.)
The appellant’s objections to the findings as not supported by the evidence refer mainly to those findings, which set forth the possessory right of the said J. P. Treadwell to the land in controversy at the time of the alleged ouster. The findings as to such right are, in brief, as follows: In the year 1853 one Alexander Speck entered upon a tract of land containing about forty-one acres, and known afterwards as the “Speck ranch,” being part of the premises described in the complaint. It was then part of the unoccupied pueblo lands of San Francisco. In that year (1853) he built a house on the land, and lived there during part of that year, and during the next year, and down to October, 1855. He made-charcoal at various times from wood on the land, and had a garden on it, and raised vegetables. A man named Killian claimed a piece of land containing about thirty-nine. acres, which adjoined the Speck ranch on the
The foregoing are the main facts found witli respect to the possessory right of Treadwell; but there are many details in the findings not necessary to be recited here. There was conflicting evidence as to some of the facts found, particularly as to whether the fences around the two tracts were kept up in good condition; whether Speck’s house was below or above the line between his land and that of Killian; whether Speck abandoned his claim when he went to the mines; whether Sheridan and Markgraf were in possession under Speck; whether Killian always recognized the right of Speck, and was in possession for both himself and Speck, etc. But upon an examination of the evidence, we find that it sufficiently supports the findings of the facts upon which Treadwell’s possessory rights are based, and we perceive no abuse of discretion committed by the lower court in making such findings. It is contended by appellant that the common inclosure of the two tracts by an exterior fence around both did not constitute possession by either claimant,—there being no tenancy in common between them. But if two owners in severalty of adjoining tracts of land, by mutual consent, inclose the two tracts together by a fence around the exterior boundaries of both, it seems clear enough that the inclosure thus made constitutes possession as against any third party who is a mere intruder. It is contended, also, that even if this rule were good as to private lands, it cannot be applied to the possession of public lands; but we fail to see the distinction, so far, at least, as to affect the case at bar. Here there is no question as to what kind of possession, or what acts, would give to the occupant of public land the right to acquire the title in fee from the public proprietor. The case merely presents a contest of alleged possessory rights between the parties to the action, and the title of the real. proprietary owner cuts no figure.
It is contended that the court erred in ruling upon the admissibility of evidence during the examination of the witness Mrs. Ann Cook. The alleged error, if it existed, would not be important enough to affect the determination of the case; but there was no error. The appellant was trying to get from the witness declarations of Speck, tending to show his abandonment of his claim to the land; and the record merely shows that the court sustained an objection to general conversations not relating to the land. Appellant then asked the witness, “Did he say in that conversation that he would not return to this land?” and an objection that it was leading was sustained. The question was then asked, “ Did he say anything about this land? if so, what?” and the witness, without any objection, went on to tell what he did say. In all this we see no error, — certainly no prejudicial error.
Judgment and order denying a new trial affirmed.
Garoutte, J., Sharpstein, J., and Paterson, J., concurred.
De Haven, J., concurred in the judgment upon the second ground discussed in the foregoing opinion.
Harrison, J., being disqualified, did not participate iiq the foregoing decision.