Kile v. Tubbs

By the Court, Shafter, J.: Ejectment for one hundred and sixty acres of land, it being the southwest quarter of section eleven in a certain township in the County of San Joaquin.

The plaintiffs claimed the premises under a State patent issued to them in June, 1862. The lands are described in the patent as “ swamp and overflowed.” The defendant claimed the same lands under the pre-emption laws of the United States, and on the ground of privity with that paramount source of title he was allowed to put in evidence for the purpose of showing that the lands included in the patent were not swamp and overflowed on the 28th of September, 1850, the date at which lands of that character belonging to the republic were granted by Act of Congress to the States in which they were situated.

First—It is admitted by appellants that the relations of the defendant to the land, and through it to the United States, were such at the commencement of the action as to entitle him to show that the lands were not swamp and overflowed, and to claim that the patent was null and void on that ground as to the State and as to him. That point indeed was directly passed upon in this action on a former appeal, and the decision now constitutes the law of the case. (Kile v. Tubbs, 23 Cal. 431.) But appellants insist that the relation of the defendant to the land and to the Government has undergone a change pendente lite, so that the defendant has lost the status (Doll v. Meador, 16 Cal. 295) by virtue of which alone he was allowed at the former trial to attack the patent.

It is unnecessary to consider the special facts on the ground of which the plaintiffs claim that the defendant, though confessedly in privity with the Government at the commencement of the action, and therefore authorized at that time to allege and prove a better title from the common and paramount source than that manifested by the plaintiffs, is disabled from doing the same thing now. The point may be met and disposed of in a more general, but not less direct way. The [339]alleged disability does not come of any judicial order or stipulation in the action, nor is it referable to any description of conventional arrangement between the parties. They have held each other at arm’s length from the beginning. It is enough to say that if the plaintiffs had no right of entry as against the defendant when the action was commenced, they cannot by possibility have since acquired the right to bring it then. In other words, if the plaintiffs could not have turned the defendant out at the date of the suit, it is not within the bounds of legal possibility that they can have the right to do it now—in this action. To a recovery in ejectment the plaintiff must not only have a right of entry at the trial, but must have had it when the suit was brought.