Hawxhurst v. Lander

By the Court,

Currey, J. Ejectment for a parcel of land in the coal district in Contra Costa County. The land in controversy consists of about twenty-seven acres. The plaintiff claims it by virtue of proceedings taken under the Act of the Legislature entitled “An Act prescribing the mode of maintaining and defending possessory actions on public lands in this State,” passed in 1852. (Laws 1852, p. 158.) The cause was tried by the Court, a jury having been waived, and judgment was rendered for the plaintiffs, which was subsequently set aside, and a new trial granted. The Court is asked to reverse the order granting a new trial.

[333]The defendants being in possession of the premises, demanded at t,he time this action was commenced, that possession must be presumed to have been rightful until overcome by evidence to the contrary. In Hill v. Draper, 10 Barb. 458, the Court say: “ The defendants in possession of disputed premises are presumed to have a valid title thereto, and the plaintiffs, to entitle themselves to recover, must overcome that presumption by proving title out of the defendants and in themselves. They must recover, if(at all, on the strength of. their own title, and not on the defects in that of their adversary. The possession of real estate is prima facie evidence of the highest estate in the property, to wit: a seizin in fee.” It is a well settled doctrine that a party in the actual possession of real estate is in the first instance to be deemed to hold the same by title or in subordination to the title, in whomsoever it may be. Therefore it is not necessary to inquire by what right the defendants have and hold possession of the disputed premises, until it is ascertained whether the plaintiffs have' a better-right.

On the 13th of August, 1860, Hawxhurst, one ofithe plaintiffs, made an affidavit with the view of securing a possessory right to a certain piece of land therein described. The parcel of land described consisted of one hundred and sixty acres. This affidavit was filed with the Recorder of the county on the same day, and was recorded. On the 7th of March, 1863, Hawxhurst made another affidavit, having for its object the securing of a possessory right to public land under the Act of 1852, which purports to be in aid of his first affidavit and to enable him to comply with the provisions of the statute, and “to make a claim to the land” therein described, “if the former one-did not.” This affidavit was filed for record, and recorded in the Recorder’s office of the county on the day of its date. The particular piece of land in controversy was not included by the description contained in the affidavit first made by Hawxhurst. The statute provides the mode by which a right under the statute to the possession of public land may be acquired, and if the right sought to be acquired fails because