Orack v. Powelson

HARRISON, C. J.

Action to quiet title. Judgment was rendered in favor of the plaintiff, quieting his title to the land described in the complaint as against the defendant

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Powelson, but refusing to quiet it as against the defendant the city and county of San Francisco. The plaintiff has appealed from the judgment, presenting his appeal upon the judgment-roll without any bill of exceptions.

The land involved in the action is situated in the city and county of San Francisco on the southerly line of Golden Gate avenue one hundred feet easterly from Scott street, and having a frontage of twenty-five feet with a depth of one hundred feet. The court found that the plaintiff deraignshis title by mesne conveyances under a so-called pre-emption claim of one Henry Merritt, made in 1850, which embraces the land described in the complaint; and it also found that “the plaintiff, by himself and his predecessors in interest, has been in open, notorious, exclusive, and adverse possession of said premises and every part thereof, and has paid all taxes levied and assessed thereon for city, county and state purposes for a period of more than ten years next before the beginning of this action.” By virtue of the provisions of section 1007, Civil Code, the finding that the plaintiff has had an adverse possession of the land in question for more than ten years prior to the commencement of the action shows that he has acquired a title thereto by prescription sufficient against all. The provisions of the section include the respondent, and in the absence of any further evidence, the plaintiff was entitled to the judgment asked for by him. If there were any ground upon which the respondent would not be subject to the provisions of the section it was an affirmative defense, to be presented upon the record and established by evidence. In its answer to the complaint the respondent alleges that it holds the legal title to the property in trust, to be disposed of and conveyed to the parties entitled thereto and designated in an act of the legislature of the state of California entitled “An act to expedíate the settlement of land titles in the city and county of San Francisco, and to ratify and confirm the acts and proceedings of certain authorities thereof,” approved March 14, 1870; and that the legal title thus held by it in trust is the only interest or claim which it has therein; that by the aforesaid act of March 14, 1870, the legislature has prescribed the terms and conditions and designated the man