HART, J.
There are two points upon which the application for a rehearing is pressed, to wit: 1. That the evidence fails to show that the defendants entered upon and took possession of the premises in dispute under the written lease from Pavliger to Seid Pak Yuen; 2. That the defendants failed to show, and there is no evidence that does show, that the six acres upon which the potatoes were planted and grown are embraced within the 110 acres of which Pavliger claims the ownership and which is described in the lease from said Pavliger to Seid Pak Yuen.
1. The point first above stated was not made at the trial of the case, but is raised for the first time on this appeal. For that reason we would be justified in refusing to review the point. The case was tried in the court below upon the theory that the defendants went into possession of the premises under the written lease from Pavliger to Seid Pak Yuen. The point should have been raised or made at the trial so that the defendants could have been given an opportunity to show, as in all probability they could have shown, that they took possession under said lease. But we will consider briefly the contention of counsel as to this point. Counsel first call attention to the fact that the lease from Pavliger to Seid Pak Yuen does not indicate the exact date of its execution. The lease bears the following date: “March-, 1921,” the day on which the instrument was executed being pretermitted. There was no showing or any attempt to show by parol or other means extrinsic to the lease itself what day the writing was executed. It was not acknowledged, nor, therefore, was it recorded. Nor is there
[131]
any positive testimony as to whether the defendant entered into the possession of the property under said lease, or entered under parol authority from Pavliger prior to the making of the written lease. From these considerations it is argued in the petition that the presumption following from the fact of the omission from the date of the lease the day of its execution and the failure otherwise to show the day upon which the writing was executed is that the instrument was executed on the last day of the month in which if is thereby shown that the writing was made and entered into by and between the parties. According to this, theory, the lease in question was executed on the thirty-first day of March, 1921, or a trifle over three weeks after the defendants were found in occupancy of the premises in dispute. In support of this contention, counsel cite Jones on Evidence, section 19, and
Graves
v.
Lebanon Nat.
Bank, 10 Bush (Ky.), 23 [19 Am. Rep. 50, 57]. Upon all these considerations it is argued that it must be assumed that the defendants in the first instance took possession of the premises without authority from any person; that they were, therefore, trespassers, and that, as is at least the necessary effect of the argument, they continued as such trespassers, notwithstanding that subsequently to their entry upon the premises they were given a lease of the same by one claiming to be the owner. We do not think that the presumption invoked and sought to be applied here by counsel for the appellant is applicable to this case. We are of the opinion rather that the presumption should be and is that the defendants entered upon and took possession of the premises under the lease. We cannot conceive how it may logically be maintained that a presumption of doing wrong is to follow from facts from which it is naturally to be inferred that a party did right. Here, as seen, the defendant, Seid Pak Yuen, had written evidence of the right to take possession of said property in the month of March, 1921, and it would seem absurd to say that, rather than to indulge the presumption that he took possession of the property under said authority, it must be presumed that he took possession wrongfully. There are several presumptions of law, disputable, of course, which we think apply to the case here. Subdivision 19 of section 1963 of the Code of Civil Procedure provides that private transactions are pre
[132]
sumed to have been, fair and regular. Subdivision 33 of the same section provides that it is to be presumed that the law has been obeyed and subdivision 11 of the same section declares: “That things which a person possesses are owned by him.” Another presumption applicable here is that stated in subdivision 20 of section 1963 of the Code of Civil Procedure as follows: “That the ordinary course of business has been followed.” From these views it follows that, if the point were of any importance whatsoever in the decision of this ease, it was the duty of the plaintiff to have overcome the presumption that the taking of possession of the premises by the defendants was under the lease by proof that such taking of possession was neither under said lease nor by the sanction or authority of Pavliger. But the point, in our opinion, is of no significance or importance in the determination of the appeal herein; for if it were true that Seid Pak Yuen originally took possession of the lands without authority from anyone, and that thus for the time he became a trespasser as against the rights either of Pavliger or the plaintiff, yet, at the time this action was instituted (September 12, 1921), and the potatoes were seized by the plaintiff under the writ of replevin thereupon issued, Seid Pak Yuen was unquestionably in actual adverse possession of the premises and holding the same under a lease from one claiming title to the premises, and, therefore, held such possession under color of title and claim of right. The ease of
Page
v.
Fowler,
39 Cal. 415 [2 Am. Rep. 462], cited in the original opinion, and which has been sustained by all the subsequent cases in this state, is, in its general facts, quite similar to the case at bar. Indeed, we perceive no distinction between the two eases as to the general facts which justifies the conclusion that the principles upon which
Page
v.
Fowler
was decided are less applicable to this ease than that. (See, also,
Rector
v.
Lewis,
46 Cal. App. 168 [188 Pac. 1018].)
2. Further examination of the evidence since the filing of the petition for rehearing has added strength to the view, expressed in the original opinion, that the finding that the six acres upon which the potatoes were planted and grown were embraced within the exterior boundaries of the 110 acres described in the lease from Pavliger to Seid Pak Yuen cannot justly be disturbed. There was introduced
[133]
in evidence a plat or a map of the island, which shows swamp-land surveys of numerous tracts of land embraced within the island. Said tracts are delineated and so identified on said map by metes and bounds. Included within the lands so delineated are the four several tracts comprising the 110 acres described in said lease. The three deeds purporting to vest in Pavliger three of the four parcels of which the 110 acres consist and a contract of sale between Pavliger and the purported owner of the fourth parcel purporting to vest title to said parcel in Pavliger, correspond, in the description of said parcels, to the description of the same upon said map, as does also the lease from Pavliger to Seid Pak Yuen. As shown in the original opinion, two civil engineers, who had made surveys of the island, including the 110 acres, testified that the lands leased to Seid Pak Yuen were capable of ready identification by a reference to the plat or map referred to. One of the engineers, Widdows, stated that said map follows the description (in distances and acres) contained in the Pavliger lease to Seid Pak Yuen as to the several parcels constituting the 110 acres claimed by Pavliger. It is true that there is no direct or positive testimony that the six acres planted to potatoes were embraced within the 110 acres, but, since Seid Pak Yuen had a lease of the 110 acres, it is to be presumed that he took possession of the leased lands and that the six acres planted to potatoes were embraced within the lands which under the lease he had the right to take possession of. The burden, therefore, rested with the plaintiff to show, if it were a fact, that the six acres were not embraced within the 110 acres which are described in the lease from Pavliger to Seid Pak Yuen. The plaintiff made no effort at the trial to show that the six acres were not situated within the exterior boundaries of the 110 acres described in the said lease.
In conclusion, we may observe that the statement in the petition that Seid Pak Yuen and the other Chinese who were with him upon the premises took possession thereof by means of force and violence is wholly without warrant in the evidence. The only evidence in the record showing the manner in which the defendants had possession of the premises on the eighth- day of March, 1921, consisted of the testimony of Barker, the agent of the plaintiff. The sub
[134]
stance of all that he testified to as to his visit to the camp of the Chinese on March 8th is set forth in the original opinion; and it will be noted therefrom that all that it amounted to was that, having previously heard that the Chinese were occupying certain portions of the island, he, accompanied by a man by the name of Kelly, went to the camp of the Chinese .and said to them that they had no right there and ordered them to vacate the premises; that one of the Chinese (not Seid Pak Yuen) replied in foul language, called Barker a harsh name and threatened to kill him if he did not leave the premises. It will be noticed that Barker did not even tell the Chinese that he or the plaintiff was the owner or entitled to the possession of the premises or that either claimed such ownership or right of possession. He simply ordered them away from the land.
However, for the reasons stated in the original opinion and those superadded herein, the petition for a rehearing is denied.
Burnett, J., and Pinch,- P. J., concurred.
A petition to have t'he cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 3, 1923.