Treat v. Reilly , 35 Cal. 129 ( 1868 )

By the Court, Sawyer, C. J.:

This case is clearly within the rule, that appellate Courts will not set aside a finding on the ground of insufficiency of evidence to support it, when it is substantially conflicting. It is quite clear, from the evidence, that the plaintiff had reduced the land to possession at the time of the destruction of his house and fences, and of his ejection. The only serious question is, whether the land had been reduced to actual possession by the defendants prior to the entry of the plaintiff. There is no doubt that defendants had a house upon land some distance to the north and east of the land in controversy, probably on the adjoining quarter section, but not within the boundaries of the land embraced in this action; and that they set up a claim to a large tract of land, including some, at least, of the land in dispute; but upon the question whether any portion of the land in controversy had ever been reduced to actual possession by the defendants, there is, at best, much conflict in the testimony, as we understand it, and the Court below found for plaintiff. Much of the testimony as to fences is not very intelligible to us in the form presented by the record. The District Court had a much better opportunity to appreciate its force, as the witnesses pointed out in its presence, upon the plats and maps, the boundaries and localities, in respect to which they were testifying. "We find nothing to justify us in disturbing the findings on the ground of insufficiency of evidence on these points.

There is no error in the refusal to enter a nonsuit as to defendant Bryan. Bryan’s own testimony is sufficient to connect him with the ouster. He had purchased an interest with Riley. He says: “ Riley told me there were squatters on our land. * * * He employed men to turn them out; Riley employed the men in July, 1862, to remove the house from the premises; they were employed for us, and with my consent.” This, and some other to the same effect, show that the men who destroyed the house and fences, and turned out plaintiff, were the mere servants of both Riley and Bryan, and were employed to do the work with the knowledge and consent of Bryan. It was, therefore, as much his act, as that of Riley. The possession thus acquired was as much the possession of Bryan as of Riley.

If it be conceded that the conversation between Winter and Treat was idadmissible, it does not appear that it was in fact introduced in evidence, although the Court held it to be admissible. The witness seems to have entered at once upon other testimony without stating the conversation. The defendants, certainly, could not have been prejudiced by the ruling of the Court, unless it was followed by the introduction of the objectionable evidence.

So, also, if it be conceded that the evidence of Treat, relative to an action commenced by Riley should have been stricken out, no injury could have resulted from the refusal to strike out, for the defendants themselves, in a subsequent stage of the proceedings, proved the same facts, and again, at another stage, it was conceded by the counsel of both parties that said suit had been instituted. But in any view we do not perceive how the fact could, in any degree, have affected the finding.

It has been so often held that one tenant in common can recover the entire premises as against a mere trespasser without joining his co-tenants as plaintiffs, we are surprised that counsel should make the last point presented in their brief.

The judgment and order denying a new trial affirmed.

Mr. Justice Rhodes did not express an opinion.