Plume v. Seward

Mr. Ch. J. Murray delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred. This was an action of ejectment to recover a lot in the City of Marysville. On the trial of the cause, the plaintiff proved that Covillaud and others, from whom he claimed, were in the year 1849 in possession of a tract of land, lying between the Tuba river and a slough, which was inclosed by a ditch on each side, running from the river to the slough; and had within said inclosure a trading post, a corral and a wheat field. The lot in dispute was not a portion of the wheat field or corral, but was included in the premises thus designated or inclosed by them; their right of possession remaining unquestioned and undisturbed.

This land was afterwards laid out into lots and streets, upon the official map of the City of Marysville, many of which were sold by said Covillaud and others. [96] * There is no pretence of an abandonment of the premises thus inclosed; but evidence that Covillaud continued to assert title and exercise acts of ownership over them.

On the trial of the cause, the Court rendered a judgment of nonsuit, on the ground that the plaintiff had not shown such a possession as entitled him to recover.

At the last term of this Court we decided, possession was [97]prima facie evidence of title, and sufficient to maintain ejectment. What acts of ownership were necessary to constitute possession was not involved in that decision.

From a careful examination of the authorities, I am satisfied there must be an actual bona fide occupation; a possessio pedis, a subjection to the will and control, as contradistinguished from the mere assertion of title, and the exercise of casual acts of ownership, such as recording deeds, paying taxes, etc.

This being the case, it becomes necessary to inquire, if a party who enters on land with no higher claim of title than that which the law presumes from his possession, is entitled to claim more than the quantity thus actually occupied by him.

This question has been frequently decided in most of the W estern States, where entries have been made upon public lands by persons unable to reduce the whole of the lands to actual occupation by fencing and cultivation. These entries have for the most part been made by settlers claiming 160 acres under pre-emption laws, or some local custom on the subject.