40 Cal. 662 | Cal. | 1871
Lead Opinion
delivered the opinion of the Court, Wallaoe, J., and Sprague, J., concurring: Crockett, J., concurring specially:
This case comes before us, on appeal from the judgment; and the only questions in the case, are those which arise
The Colus survey does not appear to be excepted from the patent for the Jimeno grant. The lands delineated in the Jimeno survey — and they are the lands which purport to be granted by the patent — include the lands in suit; on the survey the lines of the Colus rancho are delineated, and they include the lands in suit; and on the page of the patent next after the survey there appears a diagram of the Colus rancho, with a note made by the Commissioner of the General Land Office, stating that “ the foregoing survey of the ‘Jimeno ’ rancho embraces a portion of the survey made for the ‘Colus’ rancho, confirmed to C. D. Semple, as shown by dotted lines on the plat of the foregoing;” but it is not recited that the Colus rancho is excepted from the lands granted by the patent. The patent was not void on either of the grounds urged against it, and as it comprised
Tbe third ground is, tbat “tbe Court erred in admitting in evidence tbe decree and accompanying plat of tbe Jimeno survey, tbe same being merged in tbe patent.” The objections presented by tbe plaintiff, when tbe decree and plat of survey were offered in evidence, were tbat they were irrelevant, and tbat they were merged in tbe patent of tbe Jimeno rancho, already in evidence. Both tbe decree and tbe plat formed parts of tbe patent, and therefore their admission in evidence as separate documents was not productive of any injury to tbe plaintiff. Tbe plaintiff introduced tbe survey of tbe Colus rancho, and tbe decree confirming tbe survey, and as tbe lands in controversy are embraced in each survey, tbe admission of tbe survey of tbe Jimeno rancho, together with tbe decree of confirmation of such survey, became proper for tbe purpose of ascertaining which party acquired tbe better right to tbe land under bis survey and decree of confirmation.
Tbe fourth ground is, tbat “tbe Court erred in rejecting tbe papers offered by plaintiff to show tbat Jimeno bad acquired twelve leagues of land in California prior to tbe ^grant of eleven leagues, called tbe ‘ Jimeno Grant.”’ Upon tbe authority of Kimball v. Semple (25 Cal. 454), and Semple v. Hague (27 Cal. 165), in which this precise question was considered, we bold tbat tbe point is not well taken.
Tbe fifth ground is, tbat “tbe Court erred in giving judgment in favor of defendants — tbe plaintiff bolding tbe older and superior title.” This ground is ’ useless and Worthless for any purpose whatsoever. If tbe Court found tbat tbe plaintiff’s title was tbe older and superior title, tbe point tbat tbe Court erred in rendering judgment for tbe defendants may be taken upon tbe judgment roll without a statement or bill of exceptions. But if tbe Court did not so find, but found tbat issue for tbe defendants, then tbe Court did not err in giving judgment for tbe defendants. If tbe plaintiff intended by tbat specification to say tbat tbe Court erred in finding or deciding for
It is proper here to advert again to the first three grounds of the statement on appeal. Counsel for plaintiff have discussed under one of these grounds — perhaps the fifth, but they do not designate which — the effect of the evidence admitted in the cause for the purpose of showing that the plaintiff held the title to the premises. This practice is inadmissible. It has already been stated that the question does not arise upon the fifth ground; and it is perfectly clear that it does not arise upon either of the first three grounds. The question of the admissibility of evidence is quite different from the question of its value, weight or effect. In a contest for the possession of lands, a party who offers a deed, asserting that he claims under it — if the deed be not void on its face, or if it do not appear therefrom that it does not relate to the land in controversy — is entitled to have it admitted in evidence. Perhaps other grounds for its exclusion, than those stated, may be found, but it is beyond all question, that it should not be excluded, because the adverse party has adduced in evidence a deed, which, as he claims, shows a better title in himself. This would appear obvious; for the'relative value and effect of the deeds could not be determined until they had been submitted to the Court or jury for consideration. The question whether the survey, confirmation of the survey, or the patent of the Jimeno rancho was admissible in evidence, does not involve the
The evident purpose of the plaintiff, on this appeal, is to defeat the Jimeno patent, by showing the prior grants to Jimeno, exceeding eleven leagues of land, and to overcome the effect of the decree confirming the survey of the Jimeno rancho, as declared on the former appeal. The first point has already been sufficiently noticed. Had the record been so prepared as to present the second point, the Court would not be at liberty to re-open the discussion, and again pass on the point. The decision of that question on the former appeal — reported in 38 Cal. 60 — became the law of the case, and this Court, no more than the District Court, would be justified in disregarding it.
Judgment affirmed.
Concurrence Opinion
Opinion of
concurring:
On the former appeal in this case (38 Cal. 60), I was of opinion that, on the facts as then presented, the plaintiff had the better title, and was entitled to recover. Subsequent reflection has strengthened my conviction in the correctness of the views expressed in my dissenting opinion. But a majority of the Court arrived at a different conclusion, and, as the case was then presented, held that the defendant had the better title; and, on well settled principles,
After a careful examination of the record, I discover only two particulars in which the case, as now made, differs from that on the former appeal. On the first trial the patent for the “Jimeno Rancho ” was not put in evidence, but in lieu thereof it was admitted that a patent had issued. On the last trial, however, the patent itself was produced in evidence, from an inspection of which it appears to contain as part thereof, a copy of the official survey on which the patent is founded, and on the plat of said survey there is delineated by dotted lines a tract representing the ‘ ‘ Colus Rancho,” confirmed to Semple, so far as the same conflicts with the survey of the “Jimeno Rancho.” On the next succeeding page of the patent is found a memorandum by the Commissioner of the General Land Office, to the effect that the survey of the “Jimeno Rancho” embraces a portion of the survey made for the “ Colus Rancho, confirmed to C. D. Semple, as shown by dotted lines in the foregoing, said Colus covering part of Jimeno, * * * as particularly indicated on the annexed diagram by a yellow shade.” Then follows the diagram referred to, showing the survey of the Colus Rancho and its interference with the Jimeno survey. There is nothing in the granting words of the patent, nor in any other portion of it except that already referred to, to indicate that so much of the Colus survey, as interferes with the Jimeno survey, was intended to be excepted from the operation of the patent.
Including the interference between the two surveys, the patent embraces precisely the quantity which was confirmed to the patentee; and, of course, if the interference be excluded, the quantity embraced in the patent would, to that extent, be less than the quantity confirmed. The plaintiff, however, insists that the dotted lines on the plat of the sur
Tbe only other new proof offered by tbe plaintiff, on tbe second trial, was evidence tending to show tbat prior grants bad been made by tbe Mexican Government to Jimeno; but I think this proof was clearly inadmissible for tbe reasons stated in tbe opinion of tbe Chief Justice.
I therefore concur in affirming tbe judgment.