Roberts v. Ward

This is an action in ejectment to recover a strip of land about six feet wide and one hundred and fifteen feet deep off the south side of lot 9 in block 11 in the town of Red Bluff. Judgment was for plaintiffs. The appeal is from the judgment and order denying a motion for a new trial.

The complainant alleges that plaintiffs are owners in fee of the disputed strip. The answer denies this and also sets up section 318 of the Code of Civil Procedure as a bar, with the further defense of the establishment of a boundary between plaintiffs and defendant by acquiescence for at least thirty-eight years. The land in dispute is a part of the townsite of Red Bluff, which townsite was laid out on government land, and under act of Congress, Revised Statutes, 2387 (U.S. Comp. Stats. 1901, p. 1457), was, by the government of the United States, patented to the county judge of Tehama county in trust for the several use and benefit of the occupants. Ever since November 25, 1867, the defendant has occupied this six feet of the south side of said lot 9 as a part of his residence grounds and had the same inclosed with his other grounds by a substantial fence. The patent for the townsite was issued in 1866. Plaintiffs' first grant of title to lot 9 was simply by designation lot 9, and was in the year 1867. The county judge made several certificates of title to lot 9, designating it as lot 9, giving no metes and bounds, to one John F. Jones, July 6, 1868, who never was in possession of any part of said lot 9, never occupied it, and, so far as appears, never had any right to do so. This certificate, therefore, conveyed to him no title. (Biddick v. Kobler,110 Cal. 191, [42 P. 578].) Again, the county judge made certificate of title to lot 9 to B. W. Stewart who was an occupant of said lot 9, except the six feet in controversy. The lot was not described by metes and bounds, but simply as lot 9. Again, on July 31, 1878, the county judge made a certificate of title to J. B. Roberts to said lot, who was then an occupant of said lot 9, except the six feet in controversy, as a grantee from Stewart. *Page 103

There is no question but plaintiffs established a good title to all of said lot 9, except that part in dispute here. Under the trust evidenced by the patent of the United States government, the county judge could convey to no one but an occupant — one who was in actual bona fide possession thereof at the time. (Biddick v. Kobler, supra.) A plaintiff in ejectment must show a satisfactory title in himself before he can recover. It is no advantage to him to merely show that the defendant's claim of title is defective. He must show both a legal title and possession, or a right of possession. (Buhne v.Chism, 48 Cal. 467; Willus v. Wozencroft, 22 Cal. 607; Harris v. Kellogg, 117 Cal. 484, [49 P. 708]; Sousa v. Pereira,132 Cal. 77, [64 P. 90].)