Andrus v. Smith

COOPER, C.

This is an appeal from a judgment in favor of plaintiff and from an order denying the defendant’s motion for a new trial.

The action was brought for the purpose of quieting plaintiff’s

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title to the lots described in the complaint, situated in the city of Alameda. The plaintiff relied on title by adverse possession. The court found that plaintiff’s testate,

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ever since the sixteenth day of April, A. D. 1885, and up to the sixth day of June, A. D. 1895, . . . has been and was in the exclusive, open, and notorious occupancy and possession of” the lands described in the complaint.

Defendant claims that this finding is not supported by the evidence, for the reason that the evidence does not show the possession to have been adverse and continuous for five years. This is the only material point in the case. We think the evidence is sufficient to support the finding.

The evidence was to some extent conflicting, but the judge of the court below heard it as it fell from the lips of the witnesses. He observed their conduct and manner while testifying, and was therefore much better able to pass upon their credibility and arrive at the truth, than we can possibly be from the written record. All presumptions here are in favor of the finding, and we cannot, under the well-settled rule, disturb it, if there is any substantial evidence to support it. The evidence shows that on April' 8,1885, one Rachael Frazier was in the peaceable and undisputed possession of the lots, and had them fenced; that on said date she executed to W. R. Andrus (plaintiff’s testate) a deed of said premises, which deed was acknowledged and recorded on April 16, 1885; that the said Andrus went into possession of the lots under the deed. It was a grant, bargain, and sale deed, and described the lots in contest here, and no other property.

The title of plaintiff’s testate was therefore founded upon a written instrument, and in such case land is deemed to have been possessed and occupied,—“1. Where it has been usually cultivated or improved; 2. Where it has been protected by a substantial inclosure; 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant.” (Code Civ. Proc., sec. 323.)