McManus v. O'Sullivan

By the Court, Wallace, C. J.:

At the conclusion of the plaintiff’s proofs the defendants moved the Court for a nonsuit, but the motion was denied. One of the grounds upon which the motion was rested was “that the evidence does not show, or tend to show that the plaintiff or her ancestors, predecessors or grantors, or either of them, were seized or possessed of the premises, or any part thereof, at any time within five years next before the commencement of this action, or at any time since.” In denying the motion for a nonsuit the judge observed that it would have been granted, had it distinctly appeared by the plaintiff’s proofs that the defendants had held adverse possession of the premises for the period of five years next before the commencement of the action; and further, that should the defendants establish a possession of that character upon their part, he would thereupon instruct the jury to find their verdict for the defendants. The record then proceeds as follows: “Here the plaintiff admitted that defendants would introduce such proofs, and also would produce witnesses to prove that such possession of defendants was taken January 1st, 1862, under claim of title adverse to the plaintiff, but not to the City of San Francisco. Whereupon the plaintiff, by her counsel, in open Court admitted, for the purpose of this matter, that the defendants were in the actual, open, exclusive and notorious possession of the land in controversy for more than five years prior to the commencement of this suit, and on and ever since the 1st day of January, A. D. 1862, and had held the same from that date adversely to the plaintiff, her ancestors, predecessors and grantors, and to the estate of T. B. Mc-Manus, deceased, but not to the City and County of San Francisco.” Upon the admission thus made, the jury were directed to find a verdict for the defendants, which being done, judgment was thereupon rendered, from which judgment the plaintiff presents this appeal.

1. The evidence on the part of the plaintiff tended to show that her intestate was in possession of the premises sued for from some time in 1853 until January, 1861, when he departed this life.

The motion for the nonsuit, in so far as it questioned the sufficiency of the possession held by McManus in his lifetime, was determined in favor of the plaintiff, and the decision having been put altogether upon the legal effect of the possession of the defendants, taken subsequent to his death, the propriety of the ruling in the latter respect is the only matter to be considered here.

2. The premises sued for lie within the limits embraced in the judicial decree in the case of the United States v. The City of San Francisco, entered in the Circuit Court May 18, 1865, within the area defined in order No. 800; and the Act of the Legislature of March 27, 1868, ratifying that 'order; and the Act of Congress of March 8, 1866, entitled '“an Act to quiet the title to certain lands within the corporate limits of the City of San Francisco.”

3. If we are to consider the case of the plaintiff as resting solely upon the prior possession of her intestate, and wholly disconnected with the decree of the Circuit Court, the order of the Board, the Act of the Legislature, and fee Act of Congress already referred to, it is plain that the possession of the defendants, if adverse in its character, was sufficient, in point of mere duration of time, to bar the plaintiff of a recovery in this action, for their possession, such as it was, began in January, 1862, and this action was commenced only in August, 1867.

4. It is claimed by the plaintiff, however, that the possession of the defendants was not of an adverse character, within the meaning of the Statute of Limitations; and this view is rested in part upon the circumstance that the possession relied upon, though held in hostility to the claim of the plaintiff,.was nevertheless held in admitted subordination to the title of the City of San Francisco. But it has been repeatedly determined in this Court that a possession-taken and held by a defendant for the requisite period, in hostility to the title or claim set up by a plaintiff in the action of ejectment,- amounts to an adverse possession against the plaintiff, sufficient to bar a recovery, even though the defendant, while so in possession, admitted the validity of a title outstanding and in a third person. Thus, in Page v. Fowler, 28 Cal. 611, the case turned upon the question as to whether the possession of the defendant in that action was adverse in its character, and it was held that it was, notwithstanding the defendant entered upon the land, and claimed to hold it, conceding all the while that the title was in the Government of the United States, and which title he was avowedly endeavoring, by entry and occupation as a pre-emptioner, to obtain; the Court observing that to constitute adverse possession it is sufficient if the defendant in possession claims the right against all the world,, except the United States.

Inasmuch aé it was conceded in that case that the true title to the premises was in the United States, and that if the defendant should not succeed to it as a pre-emptioner, then it necessarily would go to Page under the Act of March, 1863, concerning the Suscol Ranch, the claim “against all the world” was after all a claim in hostility to Page alone, who was the only person challenging the right of the defendant in that action. The cáse came again to this Court (37 Cal. 108), and it was then held that a person in possession of land with the intent in good faith to obtain the title thereto under the pre-emption laws of the United States, must be -taken to be in adverse possession under claim and color of title, in such sense that an action could not be maintained against him to recover hay cut upon the premises so in his possession. Again, in Farrish v. Coon, 40 Id. 57, in defining the phrase “adverse possession,” it was said here as follows: “The very essence of an adverse possession is that the holder claims the right to his jJbssession not under, but in opposition to, the title to which his possession is alleged to be adverse.” ' So in Hayes v. Martin, 45 Cal. 559, this Court used the following language upon this point: “It is not requisite that a party who relies upon the statute should show that he claims title in hostility to the United States. He may admit title in the United States, either with or without a claim on his part of the right to acquire the title from the United States, and it is sufficient if he has such possession as is required' by the statute, and claims in hostility to the title which the plaintiff establishes in the action.” In view of these authorities, and others of a like import in this Court, which could be found, did time permit, an adverse possession must be taken to mean a possession merely hostile as agáinst the particular claim to which it is opposed in proof; and it results that the possession of the defendants here, though held in admitted subordination to the title of the city, was nevertheless adverse to the title set up by the plaintiff, and therefore sufficient to defeat it, unless the plaintiff deraigns her claim from the City of San Francisco, which is the only remaining point to be considered.

5. The lands in controversy lie within the limits defined by the decree-of the Circuit Court of the United States, of May 18, 1865, and without the corporate limits of the city of San Francisco, as defined by the Charter of April 15, 1851. Under the rule laid down in Gardiner v. Miller, (47 Cal. 570), the statute commenced to run against the title of the city only upon the passage of the Act of Congress of March 8, 1866, and, therefore, if the claim of the plaintiff is connected with the title of the city, the Statute of Limitations had not run against it when this action was brought. There was no direct proof at the trial that the plaintiff’s claim was in anywise connected with the claim of the city. Counsel argue, however, that the presumption that it was, arises from the fact that the plaintiff’s intestate for some seven or eight years next before his death, held possession of the premises, which were subsequently, and some four years after his death, confirmed to the city. We know of no rule of law upon which such a presumption could be indulged. That a party in possession is presumed to be rightfully there is true, and in that sense possession raises a presumption of right and of title in the possessor. This is the general rule, and is the doctrine of the cases of Hawxhurst v. Lander, 28 Cal. 331, relied upon by counsel; and also of Hill v. Draper, 10 Barb. 458; Allen v. Rivington, 2 Saund. 110, and Catteras v. Cowper, 4 Taunt. 542, cited by him. But a mere naked possession antecedently held by the plaintiff’s intestate, and not sufficient in point of duration "o entitle him to the protection of the Statute of Limitations, cannot operate to create a presumption that the claim of the possessor was connected with any particular source of title. It is true that under some circumstances a presumption of a grant to a party in possession may be created, and an instance of that character is found in Mather v. The Ministers of Trinity Church, 3 Sergt. & R. 507, cited by counsel, where the Court presumed a grant to the plaintiff from the Commonwealth for the premises, or a right of pre-emption thereto, upon it appearing that the premises, being in the midst of a very thickly settled country, and being extremely valuable, had been in the possession of the plaintiffs and their predecessors some ninety years, the Chief Justice observing that there is no absolute rule prescribed by law on which to found this kind of presumption, and that circumstances may require in different cases a different length of time. But there is no perceptible similarity whatever between the circumstances of that case and those of the one now under consideration, and no foundation is laid for such a presumption, in favor of the plaintiff here.

We are therefore of opinion that the mere possession of McManus did not, in itself, tend to connect his claim, with that of the city, nor do we think that the case of the plaintiff derives any aid from the decree of the Circuit Court of May 18th, 1865, nor the Act of Congress of March 8th, 1866, (through which decree and Act the title of the city is derived,) nor from the Ordinance of the Board No. 800, nor the Act of the Legislature ratifying that ordinance, which deal with the terms and conditions upon which that title is to pass to the beneficiaries pointed to in the Act of Congress.

McManus was not a beneficiary under the decree of the Circuit Court, for he did not hold the premises under a grant from the authorities of the Pueblo, town or city of San Francisco; nor was he, nor was the plaintiff as his personal representative, a party in the bona fide actual possession of the premises, personally or by tenants, at the time of the passage of the 'Act of Congress—for the actual possession, whether held bona fide or not, was at that time in fact held by the defendants, as we have seen already, in hostility to the claim of the plaintiff. If it be even conceded, then, that (under the authority conferred upon the Legislature of the State by the Act of Congress to determine the mere quantity of land which the beneficiaries referred to therein were to receive and prescribe the mere terms and conditions upon which such beneficiaries were to receive the lands), it was competent to the Legislature to create a new and distinct class of beneficiaries as being persons who (though not in actual possession by themselves or tenants on the day of the passage of the Act of Congress), having been ousted from possession before or since that day, had recovered or might recover the same by legal process, the case of the plaintiff is hot brought within the latter category. She had not recovered the premises before the passage of the Act of the Legislature, nor has she recovered since then. If the Act of Congress is, evbn therefore, to be taken, with the modification engrafted thereon, or attempted to be, by the Act of the Legislature confirming Order No. 800 of the Board, the case of the plaintiff is thereby brought directly within the views announced in Pickett v. Hastings, 47 Cal. 270, in which case we held, upon the construction of the provisions of the Van Ness Ordinance, in this respect similar to those we are now considering, that where an ouster had occurred, the fact of recovery had was indispensable to constitute a person a beneficiary.

It results from these views that the action was barred, and that the judgment of the Court below was correct, and should be affirmed ; and it is so ordered.

Hr. Justice McKrasTRT did not express an opinion.