Horton v. Moore

JAMES, J.

This appeal is taken from a judgment entered in favor of plaintiff, quieting title as against defendant in a certain tract of land in the county of San Diego. There is also an appeal from an order denying defendant’s motion for a new trial.

It appears from the record that the land which is made the subject of this controversy, consisting of about seventy-five aeres, is hilly in contour and suitable generally for grazing purposes. The sole ground upon which plaintiff based his claim was that of possession acquired immediately before the commencement of this action and evidenced by the building of a wire fence about the tract. We gather from the transcript that counsel for the plaintiff was the chief mover in the enterprise to acquire a title to this property, for said counsel in his testimony admitted that he had never seen the plaintiff; that he had a contingent interest in the outcome of the suit, and had no claim of title other than that depending for its validity upon bare possession. He testified as follows: “The pos

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session was taken with the expectation of commencing suit, os in the case of

Davis

v.

Crump

[162 Cal. 513, 123 Pac. 294] under section 1006 of the Civil Code, and when occupancy was taken, claim of title was made contemporaneously with the taking of the possession. Prom that time and ever since plaintiff has claimed that land as against everybody who cannot show title by the means stated in that section 1006.” This action was commenced on the fifth day of June, 1914. Several days prior to that time, the nominal plaintiff, acting through Kelly, the attorney, put a force of men at work building a fence around the land. On the third day of June (two days before the action was commenced), defendant Moore caused the fence, which did not completely surround the land at that time, to be torn down. Immediately thereafter respondent’s attorney had his men rebuild the fence, and on the 5th of June, at about noon time, it was nearly completed. The attorney, who was on the ground, left for his office, instructing his foreman that as soon as the ground had been completely surrounded by the fence to notify him by telephone. The foreman, acting under these instructions, telephoned the attorney at about 3 o’clock in the afternoon of June 5th that the fence had been completed, and the complaint in this action was immediately placed on file in the county clerk’s office. Within the next day or two Moore again took down the fence. This comprised the whole showing of right in the plaintiff, as the evidence discloses it. The trial court determined that the plaintiff had possession of the property and that the defendant had neither title nor possession. Appellant contends that there was evidence that the defendant had possession of the whole tract claimed, and possession under color of title at least as to a portion thereof; and, secondly, that under the evidence the court was not justified in making the finding of possession in favor of the plaintiff for the reason that plaintiff’s occupancy was not such as is intended to be described in section 1006 of the Civil Code; that under the terms of that section a mere “scrambling” possession is not sufficient to give rise to a presumption of title. The section mentioned has been amended since the controversy herein involved arose; it provided, prior to 1915,'as follows: “Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession.” It