Sousa v. Pereira

GRAY,C.

—The action is in ejectment, and was begun September 28, 1897. On the trial before the court without g jury, plaintiff had judgment, from which and from an order denying him a new trial the defendant appeals.

The plaintiff claims ownership, subject to the paramount title of the government, in the whole of the south half of the northwest quarter and lots 2 and 3 of. section 33, township 44 north, range 8 west, Mount Diablo meridian, as designated on the amended plat of said township dated August 9, 1890, and bases said claim upon a homestead application and receiver’s receipt dated June 8, 1896. He alleges in his complaint that since June 8, 1896, defendant has been in the wrongful possession of about thirty acres of the northerly part thereof, and prays judgment for the recovery of the possession of said northerly part.

In his answer, among other defenses, defendant sets up that the land in controversy is a portion of the land included in the act entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific railroad in California, to Portland in Oregon,” passed by the Congress of the United States and approved July 25, 1866; that the California and Oregon Railroad Company and its successors built, completed, constructed, and operated said railroad in accordance with the terms of said act; that this defendant and his predecessors in interest have been in the actual, adverse, 'open, and notorious possession of said lands for more than thirty years last past, adversely to the whole world, under claim of ownership; and that plaintiff’s claim, if any he has, is barred by the provisions of sections 318 and 319 of the Code of Civil Procedure of the state of California. Plaintiff’s title is also denied in the answer.

There is no conflict in the evidence as to the controlling facts in the case, and said facts are, in substance, as follows: In 1856, one C. C. Tracy, “a United States deputy surveyor, under a contract with the U. S. government, surveyed a tract of land in this [Siskiyou] county, in township 44 north, range

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8 west, M.D.M., described as follows: Beginning at the northeast corner of sec. 36, Tp. 44 N., R. 9 W., M.D.M.; thence east three miles; thence south one half-mile; thence west three miles; thence north one half-mile to the place of beginning.