Thompson v. Felton , 54 Cal. 547 ( 1880 )

Department No. 2, Sharpstein, J.:

The plaintiff sues in ejectment for the recovery of about forty acres of land lying within a larger tract known as the Bernal Bancho. The entire tract was granted to the Bernals, by the Mexican Government, and on the 31st day of December, 1857, the United States issued a patent to them for it. The defendant deraigns title through mesne conveyances from the Bernals. The plaintiff claims to have acquired title to the tract involved in this action, by an adverse possession thereof for a period of five years prior to the ouster. A verdict was rendered in favor of the plaintiff. The defendant moved for a new trial, which was granted; and from that order the plaintiff has appealed.

To establish an adverse possession for the statutory period, the plaintiff testified that in 1853-4 he inclosed a tract of about 118 acres, which included the land sued for in this action, and from that time until the latter part of 1855 he pastured stock within the inclosure. In November, 1855, he leased the premises to one Osborn, and went into the interior of the State, where he remained until 1863. In the meantime a patent for the ¡Rancho issued, and Osborn took a lease of the land in 1859 from J. Mora Moss, who at that time held the legal title to it under the patent. When the plaintiff returned to San Francisco in 1863, Osborn claimed to be in possession of about onetliird of the tract leased to him by plaintiff. Osborn delivered, and plaintiff assumed possession of, all that Osborn had retained possession of up to that date.

Osborn never lived upon any part of the land leased to him by plaintiff, but testifies that he used it for pasturage, and kept the fences in sufficient repair for that purpose. The case has been here before under the title of Thompson v. Pioche, (44 Cal. 505) and the questions then decided must be treated as finally settled so far as this case is concerned. One of the points decided was, that, if Moss had no knowledge, and after reasonable inquiry had failed to obtain any, of the relation which-existed between the plaintiff and Osborn at the time when the latter took a lease from Moss, the effect of the acceptance of said lease by Osborn from Moss was to interrupt the running of the Statute of Limitations, so that thereafter the possession of the plaintiff through his tenant Osborn was not adverse, in a legal sense, to the title of Moss and those claiming under him. And the Court further said: “We are of the opinion that the evidence failed to bring home to Moss notice of the plaintiff’s claim to the land.” The order granting a new trial reads as follows:

“ This cause has been tried here three times, and each time there has been a verdict for the plaintiff. A new trial is now granted, for the sole and only reason that the Court is of the opinion that the attornment of James Osborn, the tenant of the plaintiff, to J. Mora Moss, interrupted the running of the Statute of Limitations, and prevented th.e ripening of the title of the plaintiff. It is therefore ordered that the defendants have a new trial.”

If the Court below was of the opinion that the evidence on the last trial failed to bring home to Moss notice of the plaintiff ’s claim to the land, before or at the time of the execution of the lease from Moss to Osborn, then upon the authority of Thompson v. Pioche, supra, it was the undoubted duty of the Court to grant a new trial on that ground.

It is urged, however, on behalf of the appellant, that the evidence introduced on the last trial shows that Moss did have notice, or, what is equivalent to notice, information sufficient to put him upon inquiry as to the fact that Osborn was in possession of the premises as a tenant of the plaintiff, and not otherwise. As to what Osborn told Harvey Brown, they do not agree, and where there is a substantial conflict in the testimony this Court never reverses an order of the Court below which grants or denies a new trial. The testimony of Moss is not as clear on that point as we might desire it to be; but wc are satisfied that when testifying in regard to the tenancy of Osborn, he had reference to another tract than that claimed by the plaintiff, of which Osborn had a lease. And this is entirely consistent with the testimony of Osborn, in which he said that he did not think he told Moss of his (Osborn’s) lease from plaintiff. The Judge before whom the case was tried doubtless took this view of it, and as that accords with our own, we should not disturb the order granting a new trial, if there were no other grounds upon which the order could be sustained.

There is, however, at least one other ground upon which we think that the order should be affirmed. The following extract from the instructions of the Court to the jury was, as a whole, we think, objectionable, and it was excepted to by the respondent. The Court read to the jury § 325 of the Code of Civil Procedure, and then proceeded as follows:

“Now upon this statute our Supreme Court, in this particular case of Thompson v. Pioche, says: ‘To constitute adverse possession, the occupation must be open, visible, notorious, and exclusive, and must be retained under a claim of right to hold the land against him who was seized; and the person against whom it is held must have knowledge, or the means of knowledge, of such occupation and claim of right.’ This is the language of our Supreme Court in this case, upon the first appeal, and upon the same points we have the decision of the Supreme Court in the case of Polack v. McGrath, in which Justice Rhodes says: ‘ The statute has come to the aid of the Court in defining adverse possession; and in the section already stated has declared, where the land has been protected by a substantial inclosure, or where it has been usually cultivated or improved. One-half of the cases mentioned in the eleventh section, in which the land shall be deemed to have been possessed and occupied by the person claiming adversely under the title, founded upon a written instrument or decree, is.also where land has.been protected by a substantial inclosure. The statute has in these respects remained in force since its passage in 1850; and the person claiming adverse possession, who shows a substantial inclosure of the premises of which he claims the title, need not prove any further occupation, cultivation, or use of the premises.’ [Reads.] This is also the doctrine of many cases in this Court. Such is the definition given in our Supreme Court in these two cases of adverse possession—of that character of possession, which puts the Statute of Limitations in motion, and keeps it running, so as to ripen, at the expiration of five years, into a perfect title. ”

The exception applies to that part of the instruction which purports to give the decision of this Court in Polack v. McGrath. The objection to that part of the instruction is, that while it professes to give the definition which this Court gave of adverse possession in Polack v. McGrath, it omits one very important part of that definition. In addition to what is set forth in the above extract from the opinion in Polack v. McGrath, Rhodes, J., says: “ If there is also proven the claim of title in hostility to that of the true owner, it will amount to adverse possession.” The element of hostility, which is an indispensable constituent of adverse possession, was left out of the definition which the jury was in effect told was the definition given of adverse possession in Polack v. McGrath. As given to the jury, it would appear that the Court, in Polack v. McGrath, held that something less was required to constitute adverse possession than the same Court had held to be requisite in Thompson v. Pioche. We think that this constituted a good ground of exception, and although the Court below, in granting a new trial, expressly limited itself to one ground, this Court is not thereby precluded from affirming. the order on other grounds, if there are other grounds upon which the order should have been made.

There were exceptions to other parts of the charge given, as well as to the refusal of the Court to give instructions which the respondent requested the Court to give, but we are not prepared to say that the Court erred in other respects than that above mentioned.

Order granting a new trial affirmed.

Mtrick, J., concurred.