Page v. O'Brien

By the Court, Crockett, J. : The only question in this case is whether the Court properly granted a nonsuit. The action is to recover possession of a tract of land, which is a part of the Suscol Rancho, and the complaint is in the usual form. The answer contains, first, a general denial of the complaint; second, an averment that the defendants made settlements on the land under the laws of the United States, and by virtue thereof are entitled to the possession; third, adverse possession by one of the defendants for more than five years before the commencement of the action. It appears from the record that the plaintiff claimed title under a deed from M. Gr. Vallejo, made and recorded in 1851; but there was no proof of any prior possession or title in Vallejo. On the contrary, the proof shows that the land was not in any manner inclosed or eultitivated until 1860 or 1861, at which time the plaintiff caused it to be inclosed and put some stock upon it. But the defendant was then residing on the tract, and his house was included within the plaintiff’s fence; but shortly thereafter he voluntarily removed from within the inclosure to a point just outside of it, where he continued to reside. We infer from the testimony of the witness Stewart, who was the only witness examined on that point, that the defendant, after his removal, continued to pasture his cattle on the premises inside of the inclosure, and from time to time turned the plaintiff’s cattle out. In answer to a question, he said, “he (the defendant) would not allow the plaintiff’s stock to stay in there.” In answer to the question, “Did he turn them out? ” he replied, “Yes, sir.” On cross examination, he testified “he (defendant) told me he would not leave them (plaintiff’s cattle) in there; he told me he would put them out.” This was the only proof of defendant’s occupation at the time of the com[561]mencement of the action, or of the plaintiff’s possession. To entitle the plaintiff to recover, he must have established either a prior possession or a proper title. He did neither. When he inclosed the land the defendant was residing on it and using it for pasturage; and though he removed his residence from within the inclosure, he continued to exercise dominion over it, as he had done before. He continued to pasture his cattle there, and would not permit the plaintiff to use it for pasturage. Under these circumstances the plaintiff" never acquired such a possession as to give him dominion over the premises, without which he could not maintain the action on the ground of prior possession alone. In such cases a mere scrambling possession is not sufficient. It must be a possession so clearly defined as to give him the exclusive dominion over the property; and the proof does not show that the plaintiff" had such a possession of any part of the premises at any time before suit brought.