Carpentier v. Mendenhall

By the Court,

Shafter, J. This is an action of ejectment. "The trial was by jury, who returned a special verdict upon issues submitted to them by the Court. Judgment was entered upon the findings in favor, of the defendants. The plaintiff appealed, and at the July term, 1864, the judgment was reversed by this Court and a new trial ordered, on the authority of Carpentier v. Webster. The appellant moves that the"order be vacated, and for judgment in his favor upon the special verdict.

The jury have found: First—That the plaintiff, on and prior to the first day of September, 1858, was, and that he still is, the owner in fee of the equal undivided half of the Rancho of San Ramon, embracing the premises described in the complaint, and of a further undivided interest equal to three hundred and twenty acres. Second—That all the [486]defendants, with the exception of Stout, Slankard and White, entered into possession on the day before named. That Stout took possession July 14, 1862, White on the 14-th of May, 1860, and Slankard on the 3d of January, 1863—the day when the complaint was filed. That all the defendants have continued in possession since the date of their respective entries. Third—That none of the defendants had any title to the demanded premises prior to the 9th of March, 1860, nor any right to the possession of the same nor any part thereof; but that on that day they, with the exception of Stout, White and Slankard, became tenants in common with the plaintiff. That Stout became such tenant July 14, 1862; White, May 14, 1860; and Slankard, January 3, 1863. Fourth—That the plaintiff, prior to the commencement of the action, and between the l-5th and 20th of December, 1862, served upon each of the defendants, personally, the following written demand:

“ San Ramon, December 20, 1862.

■ “ Sir : You will please to take notice that the lands and premises now occupied by you are part and parcel of the Rancho San Ramon, of w,hich I am the principal owner, and that I demand to be let into the immediate possession and enjoyment of the same, and every part and parcel thereof.

“ Respectfully yours,

“ H. W. Carpentier.”

Fifth—The rental value of each of the parcels occupied by the respective defendants.

Two questions have been discussed by counsel—first, is the plaintiff entitled to judgment on the special verdict? and if so, then, secondly! for what amount by way of damages ?