Kimball v. Lohmas

By the Court, Sanderson, J.: Actions for personal property, consisting of cord wood alleged to have been cut and removed from the land of the plaintiff by the defendants. The plaintiff obtained judgments and the defendants appealed.

The cases come here upon a special finding of facts to which no exception was taken by either side, and it is claimed by the defendants that upon this finding the judgments should have gone the other way.

Counsel differ as to the true meaning of the finding, it being claimed on the part of the defendants that it is to be read as finding an unqualified adverse possession of the land from which the wood was cut in them; and on the part of the plaintiff that it is to be read as finding only a qualified adverse possession.

The latter reading is correct. The fifth and eighteenth findings, out of which the question of construction arises, must be read together for the purpose of ascertaining the precise shade of meaning intended. So read there is no conflict between them, and the full meaning becomes obvious.

The first finds that the defendants “ were in the adverse possession of the land at the time the wood was cut,” and the latter that they “ were in the possession but without title or color of title.” The two read together yield the following [157]result: “ The defendants were in the adverse possession of the land at the time the wood was cut, but were so in possession without title or color of title.”

From a reference found in the conclusions of law to the case of Halleck v. Mixer, 16 Cal. 574, it is apparent that the finding was made to take on this peculiar form of expression, because of a distinction there made between cases where the defendant is in adverse possession, taken and held by bow and spear only, and where he is in under title, or color of title, founded upon a written instrument, as a conveyance, or upon the decree or judgment of a Court of competent jurisdiction; and it is further apparent that judgments for plaintiff were rendered upon the authority of that case.

It is insisted on the part of the defendants that Halleck v. Mixer is hot sound, and that there is no such distinction as' that case makes; it being claimed broadly that neither replevin nor trover can be maintained at common law for property severed from the freehold while in the adverse possession of the defendant, no matter what may be the character of his possession in other respects—whether founded upon title or taken by bow and spear.