Lyle v. Rollins

By the Court, Sawyer, J. This action was instituted under the two hundred and fourth section of the Practice Act. The plaintiff alleges that he is in possession of certain lands described, claiming title in fee, and that the defendants set up some claim of title adverse to the plaintiff. He asks a judgment that defendants have no title, and that they be barred from ever thereafter setting up any title or claim to the premises.

An essential condition to the maintenance of this action under section two hundred and fifty-four is, that the plaintiff must, at the time of the commencement of the action, be in possession of the real property, either by himself or his tenant. If the plaintiff was not thus in possession at the time of filing his complaint, he must fail in this action, even though he may have a perfect title in fee simple, and the right to immediate possession. (Rico v. Spence, 21 Cal. 511.) In Van [438]Winkle v. Hinckle, 21 Cal. 342, possession by tenant was held to be insufficient when the action is brought by the landlord against the tenant in possession setting up a claim adverse to his landlord.

The action was tried without a jury, and the Court found ' that plaintiff was in possession at • the commencement of the suit. The finding as to a portion of the premises is claimed to be entirely unsupported by the evidence.

The plaintiff put in evidence a record of a judgment for the possession of the premises in question, recovered in 1854, in the case of Sindle v. McKenna et al. Also, a writ of restitution issued in the same year on said judgment, and the Sheriff’s return, by which it appeared that Sindle was put in possession. Plaintiff then deraigned title from Sindle, and introduced some further testimony tending to show possession at some time prior to the commencement of this suit, which was in September, 1862. Plaintiff then testified on his own behalf as follows: “I am in possession of a portion of the premises claimed in this action. I am in possession of the sixty-eight foot lot on Howard street, corner of Michigan avenue. I have a house on it; live there; I have a fence around it. Of the rest I have only the possession conferred by my deed.” This is the only evidence of present possession on the part of the plaintiff other than the presumption, that a possession once shown continues until the contrary appears.

On the part of the defense, Shultz testified that in 1861 he helped build a fence on a part of the premises in question on the corner of Mission and Johnson streets for defendant, Rollins ; that about three months afterward Rollins built a house upon that lot; that he knew the gentleman who occupied the house, by sight, but did not know whether he had a lease or not; that the fence he helped put up was not there then; that the fence was standing three weeks; but, when he passed three months after, it was gone.