Hubbard v. Barry

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring. This is an action of ejectment for the recovery of certain real estate situated in the city of San Francisco. The premises constitute a portion of the municipal lands of the old pueblo. The plaintiffs rely upon the prior possession in 1849 and 1850 of one Thomas White, through whom they claim. The defendant rests his defense upon a grant issued by a Justice of the Peace of San Francisco, by the name of Colton, in December, 1849, and the alleged operation in his favor of the Van Ness Ordinance. On the trial it was admitted, that in October, 1849, White, the grantor of the plaintiffs, entered into peaceable and exclusive possession of certain lands of the pueblo, then vacant and unoccupied, [324] and caused the same to be accurately surveyed, and inclosed with a substantial and permanent fence; that he erected thereon a dwelling-house, store-house, and other houses, which were occupied _ by him and family as a residence and for business purposes; that in July, 1850, he leased a portion of the lands (that in controversy in the present action) for one year, and placed the lessee in possession; that while the lessee was in possession, the defendant entered upon the demised premises, and dispossessed him, and has ever since held the possession adversely to the plaintiffs. The defendant’s counsel does not question the doctrine, that in ejectment the plaintiff may recover against an intruder or trespasser upon proof of his having had prior possession of the premises. His position is, that as possession is merely presumptive evidence of title, it loses its efficacy when the title is shown to be outstanding in a third party; that the presumption arising from the possession is then met and overcome, and the basis upon which the action rests is removed. This is only another form of stating the general doctrine of the law, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and that it is a sufficient answer to his action to show title out of him and in a third party. In Coryell v. Cain (16 Cal. 572) we had occasion to observe, that this doctrine, undoubtedly true as a general rule, had been, to a certain extent, qualified and limited in this State from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country. “ The larger portion of the mining lands,” we there said, “ within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the Government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this Court proceeds upon the presumption of a grant from the Government to the first appropriator- of mines, water privileges, and the like. This presumption, which would have no place for consideration as against [325] the assertion of the rights of the superior proprietor, is held absolute in all those controversies. And with the public lands which are not mineral lands, the title as between citizens of the State, where neither connects himself with the Government, is considered as vested in the first possessor, and to proceed from him.” A similar rule is followed by us, though not founded upon a like presumption, in controversies for the possession of lands where the real title is not in the Government, but is in an individual with whom, or in a corporation with which neither party connects himself. The owner of the true title not objecting or consenting to the possession of either of the parties, the Court regards the better right, as between the parties, to be vested in the first possessor and grantees claiming through him. The rule rests upon its necessity for the preservation of peace and quiet in a country where titles to tracts of land, measured by leagues, are under consideration by the tribunals of the United States, and there is an indisposition, in numerous instances, on the part of claimants to assert their legal rights against the occupants until the final action of those tribunals. (See Bequette v. Caulfield, 4 Cal. 278, and Bird v. Lisbros, 9 Id. 5.) The Van Ness Ordinance was framed upon the theory that the better right to the bounty of the city rested with the first possessor, provided his possession was actual—that is, accompanied with the real and effectual enjoyment of the property, and had not been voluntarily abandoned. And while it fixes the date at which such actual possession must have existed, to entitle a party to its benefits, prior to or on the first of January, 1855, it specially excepts parties from the necessity of establishing a continued actual possession, where such possession had been interrupted by the intrusion or trespass of others. We do not perceive how the grant of the Justice of the Peace, Colton, could have conferred any rights upon the defendant. No law has been cited to us authorizing any disposition by the Justice of the lands of the pueblo. In the absence of such authority the grant was inoperative for any purpose. Judgment affirmed.