Bird v. Lisbros

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover the possession of premises situated upon public land. On the trial of the cause in the Court [5]below, the counsel of defendant asked the witness, Ralph Bird, the plaintiff’s grantor, c‘ whether he had not relinquished and abandoned all his right, to one Richardson, in July, 1855, and whether Richardson had not taken possession of the premises, by virtue of that relinquishment ?”

In the case of MeMinn v. Hays, 4 Cal. R., 209, it was said: “ The prior possession of Williams, the plaintiff’s grantor, was sufficient to maintain a recovery in ejectment.” And, in the opinion of the Court in the same case, it was also said : “ The fair deduction from the record is, that, at that period, the tenancy of Palmer ceased, and, consequently, Williams was entitled to possession, and the acts of Shattuck, as his agent, removes any idea of his abandonment of the premises.” And in the case of Bequette v. Caulfield, 4 Cal. R., .278, the learned Judge who delivered the opinion of the Court said : “ We have often held that possession is evidence of title; but it is equally true, that possession gives a right of action against a mere trespasser, even when title may be shown to exist in another. So, where a party can show nothing but a prior possession, that reliance may fail, if it be shown that he voluntarily abandoned his possession, without the purpose of returning.”

In these cases, it is clearly held that prior possession is evidence of title ; and that this evidence may be destroyed by abandonment. And it would seem to be clear that, if a party can acquire a title by possession, he may destroy it by abandonment. If, however, the possession were contined for a period corresponding with the Statute of Limitations, then it might admit of great doubt whether the party could destroy the evidence of his title by simple abandonment.

But the question in this case is, whether the defendant, not having connected himself with Richardson’s title, and not having shown that the plaintiff was aware of the alleged abandonment of his grantor, can be allowed to show his abandonment?

It was held, in one of the eases cited, that a mere trespasser cannot show title in a third party. This is no doubt true, as a general proposition. But it is not of universal application. For example, we will suppose A has the true title, but not the actual possession of real estate, and B takes possession, and C then ousts B of his possession. In a suit by B to recover possession from C, the latter cannot set up in bar the outstanding title of A. The possession of C gives him a prima facie title; but the prior possession of B proves superior to this prima facie title of C. If it were otherwise, and a mere trespasser upon the prior actual possession of a party could justify his act by showing the true title outstanding in a third person, no party to the suit, then a prior possessor might never gain any repose by virtue of his adverse possession, and could never gain a title under the Statute of Limitations. In the case supposed, were this the rule, 0 could