Vanderbilt v. All Persons, Etc.

MELVIN, J.

After a decision by the district court of appeal a rehearing was granted in this case in order that we might further examine the two principal questions, which were as follows: 1. Was the evidence of plaintiff’s actual possession of the property sufficient? and 2. Was the abstract of title offered and accepted in evidence by the trial court properly admissible under the provisions of section 1855a of the Code of Civil Procedure? As we agree with the answer of the district court of appeal to the first question, we adopt a part of its opinion upon that subject, as follows:—

“This is an action to quiet title under the so-called McEnerney Act (Stats. Ex. Sess. 1906, p. 78), to certain lots in the city and county of San Francisco. Plaintiff had judgment, from Avhich and from the order denying its motion for a new trial, defendant corporation, Owens & Unger, appeals.

“The action concerns several different parcels of real estate, only one of which is involved in this appeal, referred to as parcel 6 in paragraph IV of the complaint, described as folIoavs: ' Commencing at the point of intersection of the north

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erly line of Pacific Street with the westerly line of Front Street; thence running, northerly along the westerly line 'of Front Street one hundred and forty-seven feet five inches; thence at right angles westerly and parallel with the northerly line of Pacific Street, one hundred and thirty-seven feet and six inches; thence at right .angles southerly and parallel with the westerly line of Front Street one hundred and forty-seven feet five inches to the northerly line of Pacific Street; thence easterly along the northerly line of Pacific Street one. hundred and thirty-seven feet six inches to the point of commencement. ’

“Defendant, Owens & Unger, in its answer, claimed ‘an easement appurtenant of and for a right of way over and upon a portion of the said real property in said complaint described,’ as follows: Then follows the description of a strip of land, ‘being the northerly nine (9) feet eleven (11) inches of the real property described in the said complaint herein,’ sometimes referred to herein as strip A. In an amended answer said defendant pleaded sections 318, 319 and 325 of the Code of Civil Procedure in bar of the action, alleging that neither the plaintiff nor any of her grantors have paid all or any of the taxes, state, county and municipal, which have been levied and assessed upon the said strip of land. At the' close of the testimony defendant was "granted leave to file a second amended answer .‘to conform to the proof offered on the.' trial .of - this case. ’ By this amendment defendant pleaded adverse possession, of a tract of land 128.feet 7% inches on Front Street by 137 feet 6 inches running north.It is then alleged that: ‘Of the-land above described’ a strip-12% inches fronting .on Front Street ‘taken from the south end of the land hereinbefore, described .is a part of the land described in the sixth paragraph or description of land in the complaint herein.’ It is next and lastly, alleged that ‘for more than ten years prior to. the commencement of this action, the whole of the fifty vara lot of land situate on Broadway and Front Street in the city and county of San Francisco, and described as follows: (137.feet 6 inches along Front Street and of like depth), and the-buildings and improvements on said land have been each and every.-year of said ten years and fo.r each and every year since this action was commenced,. assessed-tp the- defendant -Owens, & Uuger, and its grantors.’