City of San Francisco v. Fulde , 37 Cal. 349 ( 1869 )

By the Court, Rhodes, J.:

It appears from the evidence that McDonald took possession of the lot in the latter part of the year 1858 or the beginning of 1859; that Hill, his tenant, occupied the lot from that time until his death in 1861; that thereafter McDonald conveyed the lot to Oalderwood in 1862; that at that time Callachan was in possession, but it does not appear that he entered under McDonald or Oalderwood; that Calderwood brought suit against Callachan in a Justice’s Court to recover possession; that judgment was rendered in the County Court, on appeal, for Oalderwood, and, under the writ of restitution, July 29th, 1863, Oalderwood was placed in possession; and that he, his grantees, and Fulde, their tenant, have ever since that time occupied the lot. This action was commenced August 17th, 1865. The plaintiff had judgment.

This lot, among other property, was granted to the city for the term of ninety-nine years by the Act of March 26th, 1851, for the disposition of beach and water lots; and, as the title to the lot was in issue in this action, the judgment must stand, unless the defendants made out title by adverse possession. The defendants contend that they can defeat the action if they can show an adverse possession, continuous in point of time, for the period of five years, though such possession was held by several persons successively, but without any privity; in other words, that, in order to make up the five years of adverse possession, they are entitled to add to their own possession that of those who preceded them, although they, the defendants, did not enter into possession under or through their predecessors. This position cannot be sustained upon any proper construction of the Statute of Limitations. In Arrington v. Liscom, 34 Cal. 365, it is held that the adverse possession for the period described by the statute not only bars the remedy, but extinguishes the right of the party holding the title. (See, also, cases there cited, and Cannon v. Stockmon, 36 Cal. 535.) As such adverse possession is the means by which the former title is extinguished, and a new one created, those means must, necessarily, proceed from the person in whom the better title vests; that is to say, his adverse possession alone, or the adverse possession of him and those through whom he claims, and under whom he entered, must fill the statutory period. Adverse possession, to be available as a defense, or as a title, must have been continuous both in time and in interest.

It is urged that the possession of McDonald and his grantees was continuous, as Oalderwood continued to assert his right to the possession, and commenced an action, and obtained a judgment for the possession; and it is said that if such possession is not continuous within the meaning of the decisions, it is in the power of any one having the physical ability, by a forcible entry upon and detention of the premises, to break the continuity of possession. The assertion of the right of possession, whether by words or by an action, is not the equivalent of possession in fact for the purposes of the Statute of Limitations. It makes no difference, in respect to the operation of the statute, whether the adverse possession commenced or was terminated eithef peaceably or forcibly, and as the adverse possession when continued during the whole period of the statute ripens into a title or constitutes a perfect defense, though it was initiated by force or fraud, so such possession may be interrupted by the same means by which it was acquired. Had the plaintiff, instead of Callachan, forcibly entered, Oalderwood could have recovered the possession in an action of forcible entry and detainer; and if the actual possession of the plaintiff, thus acquired and held, when added to that of McDonald and his grantees, would have made up the full period of five years, we do not think the latter would seriously contend that they could have made a successful defense to this action on the ground of adverse possession. It makes no difference by whom, or in what manner, the continuity of the adverse possession is broken, so only that it is broken. The statute protects only such adverse possession as has been continuous in fact, both as to time and interest, during the prescribed period, and if such continuity is broken, it is not restored by showing that it was interrupted by a wrongful entry.

In many cases in which the defendant pleads, as in this case, that neither the plaintiff, his ancestor, predecessor, nor grantor was seized or possessed of the premises in controversy within five years before the commencement of the action, counsel seem to have overlooked the ninth section of the Act, which provides that “ the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed hv law, and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such promises have been held and possessed adversely to such legal title for five years before the commencement of such action.” Under those provisions the person who preceded the defendants in the possession, but held for less than five years, will ho deemed to have held in subordination to the true title, unless there is a privity between him and the defendants, in which ease the possession of the former becomes the possession of the latter; both possessions being referred to the same entry. The defendant cannot dispute this presumption, and show that such person did, in fact, hold adversely; because the defendant, not claiming under him, is not entitled to litigate the question as to the capacity in which he held; because the possession of each is distinct, and cannot constitute one adverse possession, for they are referable to different entries; and because, as the defendant merely succeeds the former possessor, without privity, there may he an immediate succession of possessions, hut not a continuity of possession.

This doctrine is also sustained by authority. In Melvin v. Proprietors of Locks, etc., 5 Met. 32, it is said: “It is a principle well established that when several persons enter on land in succession, the several possessions cannot be tacked so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seizin of the true owner is restored, and an entry, afterwards, by another wrongfully, constitutes a new disseizen.” To the same effect is Brandt v. Ogden, 1 Johns. 158; and see, also, Ward v. Bartholomew, 6 Pick. 410; Wade v. Lindsey, 6 Met. 407; Doe v. Campbell, 10 Johns. 475; Jackson v. Leonard, 9 Cow. 653; Overfield v. Christie, 7 S. & R. 173; Moore v. Small, 9 Barr, 194; Mercer v. Watson, 1 Watts, 330; McCoy v. Trustees of Dickenson, etc., 5 S. & R. 254; Ang. on Lim., Sec. 414.

There are some cases cited by the defendants that hold the contrary doctrine; but, in our opinion, they are as far from the true line as is Lessee of Potts v. Gilbert, 3 Wash. C. C. 475, in which it is held that'the last possessor cannot tack the possessions of his predecessors, even if there had been conveyances, because they had no title to convey.

The stipulation “ that the plaintiff" was never in the possession of said premises,” has reference to actual possession, as is apparent from another branch of the stipulation, which admits that the premises were granted to the plaintiff" for ninety-nine years by the Act of March 26th, 1851.

Judgment affirmed, and remittitur ordered to issue forthwith.