Polack v. McGrath

By the Court, Rhodes, J.: It appears from the testimony of the plaintiff’s witnesses that Tracy, from whom the plaintiff deduces title, claimed the south half of Block Number Two Hundred and Eighty-nine, in the Western Addition to San Francisco ; that Flint claimed the northern half of the block; that in 1853 Tracy and Flint jointly inclosed the whole block with a fence; that the fence was five feet high and consisted of posts eight feet apart and two rails, two by three inches; that in June, 1862, a cross fence was built which, with other fences, constituted the northern fence of the southern half of the block—the premises in controversy; that the fences were from time to time repaired as the rails were found down, up to the entry of the defendant’s grantor; that the lots and the adjacent streets, were covered with scrub oaks when the fence was built, and1 have so continued, and that the plaintiff and those under whom she claims have done nothing on the lot besides the building and keeping up of the fences.

There can be no doubt that those acts on the part of the plaintiff’s grantors were not sufficient to entitle them to the benefits of the Van Ness Ordinance. They did not have such [18]an actual possession of the premises as is required by the ordinance to enable them to acquire the title under its provisions. “By actual possession,” says Mr. Chief Justice Field, in Wolf v. Balchvin, 19 Cal. 306, “ as the terms are here used, is meant that possession which is accompanied by the real and effectual enjoyment of the property. It is the possession which follows the subjection of the property to the will and dominion of the claimant, to the exclusion of others, and this possession must be evidenced by occupation or cultivation, or other appropriate use, according to the locality and character of the particular premises. An inclosure, by an ordinary fence, of the premises without residence thereon or improvements, or cultivation or other acts of ownership, is of itself insufficient.” (See, also, Davis v. Perley, 30 Cal. 630.)

The plaintiff does not rely for a recovery solely upon title acquired under the operation of the Van Ness Ordinance, but also contends that she is entitled to recover on the ground of prior possession and the usual legal presumption arising therefrom. In each of the opinions delivered in Wolf v. Baldwin, the position which was requisite in order to answer the demands of the Van Ness Ordinance, was defined in terms more comprehensive than would be necessary in describing such possession as would be held sufficient when shown by a person claiming the benefits of the Statute of Limitations. Something it was thought was due fo the word “ actual ” as qualifying “possession,” and also to the words “occupied and possessed,” as they are employed in the proviso to the first section; and the object of the ordinance was kept in view, which was considered to be “ to protect actual possessors— parties who were seeking by settlement to build up houses within the city limits, and not migratory squatters or mere land speculators.”