38 Cal. 481 | Cal. | 1869
Lead Opinion
First—The first point involves the construction of the deed from Crowell to the plaintiff’s grantors, Bensley, Mason and Himrod. The question is, whether the land in controversy is included in the calls of the deed.
The land is a part of the Potrero Nueva, in the City of San Francisco. It is situated on the sidehill to the south of Mission bay, and is bounded on the north by marsh lands and mud flats which border Mission bay on the south—the north line being the line dividing the marsh from the high land, or the line of ordinary high water; on the east by land belonging to one Piercy, the east line being about one hundred and forty rods in length, extending up the hill to a “ cross-ditch,” which cross-ditch is about ten rods long, and constitutes the south line; the west line extends from the west end of this cross-ditch down the hill, to the edge of the marsh, at the mouth of a small creek which empties into Mission bay.
At the time the Crowell deed was executed, there was a ditch running down into the marsh some distance, and a
In the Crowell .deed to Bensley, Mason and Himrod, the land conveyed is described as follows : ‘Commencing at loio water mark, in range with a ditch on the line of land occupied by John C. Piercy, running southerly along said ditch to its most southern extent, about one hundred and forty rods; thence westerly along said ditch ten rods, to a line of fence; thence northerly along the line of said fence, to loto water mark, in range with said fence and the east bank of a small creek, running into the bay; thence eastwardly along Imo water mark to the place of beginning, about forty-five rods. The above described premises is a portion of land known as the Potrero Nueva, bounded by the bay of San Francisco and Mission creek, said tract containing about twenty acres, more or less; the same being a portion of land conveyed to the said party of the first part, by deed, made by George ¡Roberts and John Lange, bearing date June 3, 1851.”
Comparing this description with the description given by the witnesses, as stated above, and it is apparent that if we take the starting call given in the deed, and trace the lines from that point, nearly all the land, if not quite, will be found to consist of marsh and mud flats lying below high water mark, or entirely to the north of the land in controversy. But it will be found, also, that the “most southern extent ” of the ditch on the line of Piercy’s land will not be reached; that no cross-ditch, ten rods in length, will be found for a southern boundary; that no fence will be found extending back to the bay from the west end of a cross - ditch; and no mouth of a small creek emptying into the bay for a northwest corner. So no surveyor searching for the land
We do not question the rule upon which counsel relies, that where there are conflicting calls, those which, from their nature, are less liable to mistake, must control those which are more liable to. mistake; or that if the starting call is fixed, certain and notorious, and there is a conflict between it and other calls, the latter must generally give way to the former; but the rule does not go the extent of declaring that all the other calls, although agreeing among themselves, shall be set aside solely because they do not agree with the first. As a general proposition, it is undoubtedly true that mistakes are less likely to occur in relation to the starting point than in respect to the succeeding calls; but this proposition, as we think this case shows, cannot be accepted as universally true. It undoubtedly applies with full force where the starting point is fixed, certain and notorious, as in the case of a well defined monument, and the succeeding calls are courses and distances, or even monuments which are conflicting or ill - defined; but where the succeeding calls are as readily ascertained, and are as little liable to mistake, we consider them of equal veracity with the first, and where they all conflict with the first and agree with each other, their united testimony must control. It is true that “low water
Second—The Court below, as appears by its findings and conclusions, considered this case as belonging to a class of which Gunn v. Bates (6 Cal. 272), Rose v. Davis (11 Id. 133), Baldwin v. Simpson (12 Id. 560), English v. Johnson (17 Id. 107), Attwood v. Fricot (Id. 37), Keane v. Cannovan (21 Id. 299), Kile v. Tubbs (23 Id. 431), Hicks v. Coleman (25 Id. 122), Hoag v. Pierce (28 Id. 187), Davis v. Perley (30 Id. 630), McKee v. Greene (31 Id. 418), Ayres v. Bensley (32 Id. 620), are examples. The doctrine established in this State by those cases is, that a party who enters into actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual enclosure or possession, but acquires constructive possession to the entire tract, if it is not in the adverse possession of any other person at the time of his entry; and that such person, in an action to recover possession of the land, will prevail against one who enters subsequently upon the unenclosed part as a mere intruder, or showing color of title only. This doctrine the learned counsel for the defendants seeks to bring again in question; but it has been repeatedly and fully considered, as appears by the cases to which we have referred, and it must now.be considered as no longer open to debate.
It is further claimed, however, that this case does not fall within the rule. The grounds of this point are, First—That
The fact that Crowell had neither title nor actual possession, puts the case within instead of without the rule. It is the want of title and actual possession in the grantor that renders the rule necessary to the grantee. If the grantor has title, there can be no question between his grantee and a subsequent intruder, either as to actual or constructive possession. And so, if he has actual possession, and his grantee succeeds to it, there can be no question between the latter and an intruder as to a constructive possession.
In Baldwin v. Simpson the land was public land, and the grantor had merely surveyed and marked the line by blazed trees; he, therefore, had neither title nor actual possession. In Keane v. Gannovan there was no testimony offered with the deed to show that the grantor had title, or that he ever had possession of the premises, either actual or constructive; yet, this Court held the deed admissible to establish the extent and boundaries of the grantee’s possession. In Thomas v. Harrow (4 Bibb. 563), the grantor only claimed the land under an entry, and there was no proof that the entry even covered the lands described in the deed.
The Statute of Limitations distinguishes between an entry made without any right, or claim of right, and one made under a claim or color of title. The naked disseizor is regarded with the greatest disfavor, and his possession is restricted to the land in his actual, exclusive possession; but a disseizor under claim and color of title is allowed a possession co-extensive with his metes and bounds.
The rule which we are considering gives a plaintiff without title, in an action against a subsequent intruder without title, the same support which he would have under the Statute of Limitations in an action against himself by the true owner. If he came as a mere intruder, he can recover only to the limits of his actual possession —if with color of title, he is allowed to recover to the extent of his metes and bounds. The rule is as just and reasonable as the statute to which it
If a person, in lack of good faith, intentionally takes a deed from a stranger having no title and asserting no claim, for the sham purpose of adding the constructive possession of a larger tract to an actual possession of a smaller tract, we have no hesitation in declaring that upon these facts appearing, he is not entitled to the benefit of the rule under consideration. In no just sense could he be considered as entering under claim of title founded upon his deed. There must be some show of good faith in taking the deed. (Kile v. Tubbs, supra.) To hold otherwise, would be to countenance a fraud upon the law.
There is no pretense for saying that the Crowell deed was taken for such a purpose. Crowell had' a much larger tract adjoining this, which larger tract was bounded in part by the fence referred to in his deed as the western boundary of the tract in controversy, and, in the language of the Court below, he “took up the tract in suit in September, 1853, and claimed it as belonging to him. For the purpose of desig
The facts as to the alleged entry of the grantors of the plaintiff under the Crowell deed, as shown by the record, are that they were also the purchasers of an adjoining and much larger tract, called the ‘ ‘ Farrington Claim, ” and that soon after their purchase they made an enclosure of both tracts, as one tract, by taking the bay and Mission creek as constituting a natural enclosure on the north, and building a fence' on the other lines, except where fences had been already built. As to the character of this enclosure the testimony was somewhat conflicting, but the Court found that “Bensley, Mason and Himrod built a substantial post and board fence along the whole line of the furrow or ditch on the east to the cross-ditch on the south, until it connected with the line of fence which had been previously built, running from the point of intersection west and north to Mission creek ;
In August, 1861, Mason leased about half an acre in the northeast corner of the tract in controversy to one Garagnon, for one year, with the privilege of four. Garagnon immediately entered and enclosed the leased premises with a substantial fence, and erected thereon a tannery; and he, and grantees under him, have been since and still are in possession as tenants, but neither of them had anything whatever to do with the remainder of the tract. l\o one claiming under the Crowell deed has resided upon, or made improvements upon, or put the premises to any use, except as stated above.
So the only “entry into the actual possession of a part” of the premises, within the meaning of the rule under consideration, was the settlement of a tenant upon a ¡Dart only, under a lease with specific boundaries. Does such an entry satisfy the rule ? Had Garagnon taken a lease of the entire tract, or a lease without bounds, and entered into the actual possesion by an enclosure of the tannery lot, claiming the whole under his lease, his entry and actual possession, with a claim to the whole, would have been the entry, actual possession and claim, or constructive possession, of his landlords. But a party entering under a lease, as under a deed, gains a possession only to the extent of the boundaries of his lease. In Lee v. McDaniel (1 A. K. Marshal, 234), a landlord settled a tenant on his patent with an intent to gain possession, giving his tenant no limits or bounds, and it ivas held that the landlord’s possession, thereby obtained,. extended to the lines of his patent. On the other hand, it was hold in Maury v. Waugh (Id., 452), that an alienee entering on his lands with bounds, gains a possession only to the extent of his bounds. In Owings v. Gibson (2 A. K. Marshall, 515), the whole question was directly considered, and it was held that a tenant taking possession of a part of a tract of land by certain described limits, gives to the landlord possession only
Our conclusion upon this branch of the case is, that the Court below erred in holding or finding a constructive possession in favor of the plaintiff to the land outside of the tannery enclosure.
It is claimed, however, by counsel for plaintiff, that in the event we should come to the conclusion just stated, the judgment of the Court below ought to be sustained upon the ground that the testimony and findings show a substantial enclosure, and, therefore, an actual possession sufficient to entitle the plaintiff to a recovery.
It is very apparent that the Court below did not consider the testimony as proving an actual possession. Had the testimony proved an actual possession there would have been no occasion to resort to a constructive possession—a less satisfactory ground—as the foundation of the judgment.
Judgment and order reversed and a new trial granted.
Concurrence Opinion
Crockett, J., having been of counsel, did not participate in the decision.
