45 Cal. 101 | Cal. | 1872
The Court erred in refusing to give the instruction asked by the plaintiff denominated in the record “ second.” The acts of Southmayd mentioned in that instruction, if done by him, would give him such a possession as would avail against a mere intruder upon the premises. There was error, too, in allowing the defendant to introduce in evidence the patent to Chapman and the deed of the latter to himself of a tract of land, which we understand to be without the lines of the tract of land sued for. That patent and deed could afford no sort of pretense for the defendant to appropriate the remainder of the land within the general inclosure. ÍTor can we see why the defendant was allowed tb. show that third persons held title to other portions of land within the general inclosure of the plaintiff. If the plaintiff had shown (and the evidence upon his part certainly tended to show) that he had the prior actual possession of the premises, and that the defendant entered upon that possession being him
We are unable, too, to see how the mere proof of the existence of those outstanding titles would tend to show “ a lack of that exclusiveness of possession in plaintiff to entitle him to recover,” as maintained by the learned Judge of the Court below, in denying the plaintiff’s motion for a new trial.
Judgment and order reversed, and cause remanded for a new trial.