Frisbie v. McClernin

Sawyer, C. J., delivered the opinion of the Court: This is an action to recover a strip of land (covered with water), one hundred feet long by some ten feet in width, in the City of Vallejo.

In 1855, the Legislature of California, by an Act, approved on the 21st of February, granted, for the term of twenty years, to David N. Darlington, his associates and their assigns, “ the right to build and erect a wharf from the high land at the foot of Georgia street, Vallejo, out to ten feet water at low tide in Napa straits, with the use and occupancy of a strip of overflowed land, one hundred feet wide, from the high land to the end of the wharf. * * * The land is hereby granted, provided that it shall be used for none other than wharf purposes during that time.” - (Statutes 1855, p. 15.) At the trial, the Court found that the said grantees had constructed the wharf and performed all the conditions of the Act; that all the right, title and interest of the said grantees had by regular conveyances vested in the plaintiffs; that on the 10th of October, 1866, said plaintiffs were the owners of the land and easements specified in said Act, and were in possession thereof; that defendants, on said day, entered into a designated part of said premises; that they have ever since retained the possession thereof, claiming the same adversely to the plaintiffs, and that they still, deprive the plaintiffs of the use of said premises. Judgment for possession and damages was rendered for plaintiffs.

Defendants moved for a new trial on various grounds, and a new trial was granted by the Court, on the ground 11 that error of law occurred at the trial. ” The specific error of law mentioned by the Courts is, that “the Court erred in not granting defendants’ motion for a judgment of nonsuit, made-on the ground that plaintiffs’ evidence was not sufficient to maintain the action of ejectment for the property described in the complaint.” The Court has not specified more particularly the respect in which the evidence was deemed insufficient, and the respondents, to whom we should naturally look for a specification of the precise ground relied on in his motion [571]for new trial, has not seen fit to file any brief or points. The Court, however, treats the ground as one of law, rather than of fact, and it seems quite apparent that it acted upon the idea that the plaintiffs were possessed of a bare easement, and that an easement of the kind in question is not a proper subject of recovery in this kind of action. This seems to be the ground indistinctly shadowed forth in the grounds of the orders stated by the Court, and we are at a loss to find any other upon which the motion could have been granted. The appellants argue the case on this hypothesis.