Hubbard v. Barry

California Supreme Court Jul 1, 1863Published

Before: Field

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Holding. In an action of ejectment, the court held that prior possession of municipal land is sufficient to establish a better right to possession as between private parties, even if the true title is held by a third party.

Issues

Whether prior possession of municipal land is sufficient to maintain an action of ejectment against an intruder.
Whether a grant of municipal land by a Justice of the Peace without legal authority is valid.
Whether the Van Ness Ordinance protects the rights of a prior possessor whose possession was interrupted by a trespasser.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the title as between citizens of the State, where neither connects himself with the Government, is considered as vested in the first possessor, and to proceed from him.”

“The owner of the true title not objecting or consenting to the possession of either of the parties, the Court regards the better right, as between the parties, to be vested in the first possessor and grantees claiming through him.”

“In the absence of such authority the grant was inoperative for any purpose.”

Synopsis

The rule that the claimant in ejectment must recover upon the strength of his own title, is in this State so far modified that a plaintiff may recover upon proof of a possession prior to that of the defendant, notwithstanding it be shown that the real title is in a stranger, with whom neither party has any connection, and this, whether such real owner be an individual or a corporation, or the Government of the United States.

The Van Hess Ordinance was framed upon the theory, that the better right to the bounty of the city vested with the first possessor, provided his possession was actual, and had not been voluntarily abandoned, and such prior actual possessor is entitled to the benefits of the ordinance, notwithstanding an interruption of his possession by the intrusion or trespass of others.

A Justice of the Peace of San Francisco in 1849 had no authority as such to make grants of the pueblo lands of that city, and a grant made by him is inoperative for any purpose whatever.

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

This is an action of ejectment for the recovery of certain real estate situated in the city of San Francisco. The premises constitute a portion of the municipal lands of the old pueblo. The plaintiffs rely upon the prior possession in 1849 and 1850 of one Thomas White, through whom they claim. The defendant rests his defense upon a grant issued by a Justice of the Peace of San Francisco, by the name of Colton, in December, 1849, and the alleged operation in his favor of the Van Ness Ordinance.

On the trial it was admitted, that in October, 1849, White, the grantor of the plaintiffs, entered into peaceable and exclusive possession of certain lands of the pueblo, then vacant and unoccupied, [324]and caused the same to be accurately surveyed, and inclosed with a substantial and permanent fence; that he erected thereon a dwelling-house, store-house, and other houses, which were occupied _ by him and family as a residence and for business purposes; that in July, 1850, he leased a portion of the lands (that in controversy in the present action) for one year, and placed the lessee in possession; that while the lessee was in possession, the defendant entered upon the demised premises, and dispossessed him, and has ever since held the possession adversely to the plaintiffs.

The defendant’s counsel does not question the doctrine, that in ejectment the plaintiff may recover against an intruder or trespasser upon proof of his having had prior possession of the premises. His position is, that as possession is merely presumptive evidence of title, it loses its efficacy when the title is shown to be outstanding in a third party; that the presumption arising from the possession is then met and overcome, and the basis upon which the action rests is removed. This is only another form of stating the general doctrine of the law, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and that it is a sufficient answer to his action to show title out of him and in a third party. In Coryell v. Cain (16 Cal. 572) we had occasion to observe, that this doctrine, undoubtedly true as a general rule, had been, to a certain extent, qualified and limited in this State from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country. “ The larger portion of the mining lands,” we there said, “ within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the Government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this Court proceeds upon the presumption of a grant from the Government to the first appropriator- of mines, water privileges, and the like. This presumption, which would have no place for consideration as against

Hubbard v. Barry

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