Pattee v. Moyle

By the Court, Crockett, J.: The plaintiffs failed to establish title, under the Van ¡Ness Ordinance, to any portion of the premises described in the complaint, except the “Garden Tract”—for the recovery of which they obtained a judgment. As to the remainder of the tract, there was no evidence tending to prove that they or their grantors had the actual possession, or were entitled to the possession at any time prior to the 1st day of January, 1855, nor on that day, and from thence until the 20th day of June, 1855; and, in the absence of such evidence, it is clear that they did not show themselves entitled to the benefit of the Van ¡Ness Ordinance. Except the “Garden Tract,” no portion of the foriy-eight acres was either cultivated or surrounded with a substantial in closure; and the occasional, trivial, and apparently casual acts of dominion exercised over it by Foley and his wife, or Commerford, were wholly insufficient to establish an actual possession. There was, however, evidence to the effect that in the year 1860 certain portions of the forty-eight-acre tract, north of the “Garden Tract,” were inclosed with a substantial fence by Perley and his associates, Brannan, Larkin, and others. But there was no evidence tending to show that the plaintiffs had succeeded to any rights acquired by Perley and his associates, founded on the inclosure. On the contrary, the only evidence of title in the plaintiffs consists in an admission at the trial “that whatever right, title, and interest passed to Samuel Brannan and his associates by the deed put in evidence, was, at the commencement of this suit, vested in plaintiffs.” The deed referred to is a deed from Foley and wife to Brannan, Weller, Larkin, and Yale, [366]made in June, 1853, for the forty-eight acres. But, as Foley and wife, so far as appears from this record, never had either title or the actual possession, or the right to the possession, of any portion of the land, except the “Garden Tract,” their deed to Brannan and others conveyed neither title or right of possession to the remainder. As we have already seen, it was only the rights which were supposed to have passed by this deed which were vested in the plaintiffs, and as no rights passed, except, in respect to the “ Garden Tract,” the plaintiffs established no right to the possession of the remainder. If they have in any manner succeeded to such rights as were acquired by Perley and his associates, by means of the inclosure erected in 1860, the record fails to show it. The nonsuit was therefore properly granted.

Judgment affirmed.

The Chief Justice, having been of counsel in the Court below, did not sit in this cause.