Hicks v. Whitesides

By the Court, Crockett, J.: This cause has twice been before this Court, (18 Cal. 700; 23 Cal. 404,) and is an action to recover the possession of a tract of land in Butte County, which is described in the complaint as the southeast'quarter of Section Eight, Township Twenty-one0north, of Range One east, of Mount Diablo meridian. It is also described by metes and hounds, and as one of its boundaries it is alleged to be bounded on the north by “Whiteside’s claim.” The only contest, as we under[153]stand the pleadings and proof, is in respect to the north half of the quarter section described in the complaint; and it appears from the subsequent pleadings that the land, in fact, is in Township Twenty-two, and not in Twenty-one, as alleged in the complaint.

The land is a part of the public domain,, and it appears that the defendant settled upon the north half of the quarter section in contest in 1856, and inclosed a field containing about thirty-five acres, and has continued to occupy it ever since. The plaintiff claims under what is known as the Possessory Act of this State, and on the trial put in evidence the notice of his claim, which the statute requires to be filed in the office of the County Recorder, and to be verified by his affidavit.

The notice describes the laudas “situated adjoining the northerly line of the Arroyo Chico Rancho, on the west side of and near the Oroville and Shasta road, in Butte County, California, and bounded on the east and south by the said Arroyo Chico Rancho, on the west by what is known as Frank Cannon’s claim, and on the north by Whiteside’s claim, and being the southeast quarter of Section Humber Eight, in Township Humber Twenty-one north, Range Humber One east, Mount Diablo base and meridian, containing one hundred and sixty acres, more or less.”

The affidavit annexed to the notice states that “ the foregoing lines do not embrace more than one hundred and sixty acres of land; that he has taken up no other land under the Possessory Act of this State, passed April 20th, 1852, and that to the best of his knowledge and belief said land is not claimed under any existing title.” The affidavit was sworn to December 17th, 1860, and was filed for record December 19th, 1860. It does not state that the deponent was a citizen of the United States, nor that the boundaries of his claim had been distinctly marked. So much of the description as attempts to identify the land by reference to the Government survey must be disregarded, because of the error [154]