Wood v. Truckee Turnpike Co.

By the Court, Shaftek, J. This is an action of ejectment. It is averred in the complaint that the defendant is “ a body politic and corporate, duly organized under and by virtue of the laws of the State of California;” that “on the 27th day of May, 1862, the said plaintiffs were seized and possessed of and lawfully entitled to the possession of all that certain turnpike road and the land upon which the same has been constructed, built, and excavated,” lying between certain termini named; “said road being about fifty feet in width, bounded on each side by the public lands of the United States, and wholly within said County of Sierra; also, all the bridges, toll gates, and toll houses upon said road and the line thereof, or attached thereto; together with all and singular, the hereditaments, rights, and privileges unto the said road, land, bridges, toll gates, and toll houses, belonging or in anywise appertaining. * * * And being so

seized and possessed and entitled to the possession of the above described property and premises, the defendant, by its agents, on said 27th day of May, 1862, wrongfully and unlawfully entered upon the same, and wrongfully and forcibly ejected the plaintiff therefrom, and still wrongfully withholds the same and the possession thereof from the plaintiffs.”

The answer admits that the defendant is a corporation, duly organized, etc., but denies all the other allegations.

The trial was by the Court. The defendant appeals from the judgment and from the order overruling defendant’s motion for a new trial.

The plaintiffs, at the trial, to prove their title alleged in the complaint, offered in evidence the judgment roll in an action brought by them against the defendant, by which it appeared the plaintiffs, on the 23d day of September, 1861, recovered a judgment against the defendant for the sum of nine thousand eight hundred and forty-eight dollars. They also offered in evidence an execution issued upon said judgment, together [486]with the officer’s return thereon, showing that the Sheriff on the 28th of October, 1861, levied. “ upon all the right, title, interest, claim, and property of the Truckee Turnpike Company in and to the Truckee Turnpike Road, a highway,” etc.; and “ advertised all the above described property for sale at public auction,” etc. * * * “And on the 23d day of November, 1861, * * * sbld the same to D. S. Wood and son for the sum,” etc. The plaintiffs also offered in evidence the' Sheriff’s deed to the plaintiffs. The deed is not inserted in the record, but we shall assume its subject matter to be identical with the subject matter levied and advertised and sold, viz: “ All the right, title, interest, claim, and property of the Truckee Turnpike Company in and to the Truckee Turnpike Road, a highway,” etc.