50 Cal. 26 | Cal. | 1875
The action is ejectment, and the defendant had judgment.
The record consists of a synopsis of the pleadings, which are in the usual form—the defendant pleading the general issue.
The findings are to the effect that in 1845 Pico, Governor of California, made the Colus grant to Bidwell, who, in 1850, conveyed it to Semple, the plaintiff. The grant was for two square leagues within exterior limits of six leagues. Semple entered under his deed within the limits of the general tract and claiming the whole tract. This entry was in March, 1850. He lived within the general tract at one place and another—built houses, two or three in number—there being at the time of his entry and occupation no one within the general tract except wild Indians.
In 1855 the title of Semple was confirmed by the United States authorities, and in February, 1861, the official survey was approved by the United States Court, and this survey embraces the lot in controversy; but the lot was never inclosed or occupied by any one except the defendant Cook, who entered in 1870. Cook derived his title to the lot from Larkin and Missroon, who held under a grant made in 1844 by Jimeno for eleven square leagues. This grant was confirmed by the United States Board of Land Commissioners in 1853, and the decree was affirmed first in the District Court in July, 1855, and subsequently, upon appeal, by the Supreme Court of the United States, at the December term of that year. In 1860 the final survey upon this decree of confirmation was pending before the United States District Court, and Semple intervened in that proceeding. In the following year (April, 1861) the survey was finally confirmed and approved by the court; Semple, the intervener, consenting in open court to its approval. The survey, as thus approved, embraced the lot in controversy, and in July, 1862, a patent thereon was issued by the United States.
It is claimed by the appellant that upon these findings
Mr. Justice Belcher, having been of counsel, did not sit in this cause.
[Note.—The foregoing case was decided at the October term, 1872, when Mr. Justice Belcher was on the Bench, but by some oversight was not reported. The point of practice decided comes under the Practice Act before the adoption of the Codes,—Reporter.]