California Supreme Court Jul 1, 1874 No. No. 2,867Published
Before: McKinstry, Rhodes
Synopsis
Effect of Batification.—The Act of the Legislature passed May 11th, 1858, ratifying and confirming the ordinance of the Common Council of San Francisco, approved June 20th, 1855, by which the city relinquished the pueblo lands within its corporate limits, to the possessors thereof, made said ordinance take effect by relation, at the date of its passage.
Meaningof Words “ Legad Process.”—By the words “ legal process,” used in the VanNess Ordinance, passed by the Common Council of San Francisco, and afterwards ratified by the Legislature, is meant an action brought in a Court of competent jurisdiction.
Party Entitled to Benefit of Van Ness Ordinance.—A party who, on the first day of January, 1855, was in the actual possession of land in San Francisco, within the area covered by the Van Ness Ordinance, claiming the same adversely to another party, and who continued in such possession up to the twentieth of June, 1855, and up to the commencement of an action by such other, is prima facie entitled to the title conveyed by the Van Ness Ordinance, and it devolves on the other party to show, not only that he was ousted from the possession, but also that his possession was such as within the language of the ordinance, may be recovered by legal process.
Meaning of Words in Van Ness Ordinance.—The words “ may be recovered” in the phrase “may be recovered by legal process,” used in the Van Ness Ordinance, mean “ shall be recovered.”
Persons Entitled to Benefit of Van Ness Ordinance.—The persons entitled to the benefit of the Van Ness Ordinance, consist of four classes: First, those who hold title by virtue of the grants and conveyances enumerated in the ordinance; second, those who were in the actual possession by themselves, or by their tenants, on the first day of January, 1855, and so continued up to the twentieth day of June, 1855; third, those whose possession had been “ interrupted by an intruder or a trespasser,” and “had been recovered by legal process;” and fourth, those whose possession had been “ interrupted by an intruder or trespasser,” and “may be recovered by legal process.”
Idem.—The persons embraced in such fourth class, are such as might thereafter recover possession from such intruder, and such recovery was not one which might be had on one of the grants or conveyances mentioned in the ordinance, but a recovery upon some right or title other-than such grants or conveyances.
Acquisition of Van Ness Ordinance Title.—One who- was in possession of land in San Francisco, embraced within the area of the Van Ness Ordinance, and who was ousted by an intruder before the ordinance took effect, in order to have acquired the Van Ness Ordinance title, must have recovered possession from the intruder by virtue of his prior possession, in a suit commenced before his right of action on his prior possession was barred by the Statute of Limitations. He could not recover from such intruder by virtue of any title vested in him by the ordinance, but the recovery upon the prior possession vested in him the Van Ness Ordinance title.
Opinion — Rhodes
By the Court, Rhodes, J.: The plaintiff was nonsuited upon his opening statement. It appears therefrom that the plaintiff entered into the actual possession of the premises in controversy in Hovem[284]her, 1846, and so remained in possession for about one year; that during his temporary absence a party of ■ soldiers, pretending to act on behalf of the United States, but really without authority, entered upon the premises, destroyed the plaintiff’s house thereon, and the military, in command at San Francisco, retained the possession of the premises; that the plaintiff endeavored to regain the possession, but was always prevented from so doing; that the defendants succeeded to the possession, and were in the actual possession thereof on the first day of January, 1850, claiming the same in their own right, and adversely to the plaintiff, and have ever since remained in such possession. The premises are a portion of the pueblo lands of the pueblo of San Francisco, and are a part of the lands described in the act of March 11th, 1858, ratifying and confirming the Van Hess Ordinance (Stats, of 1858, p. 52), and a part also of the lands mentioned in the Act of Congress of July 1st, 1864, confirming the same ordinance (13 U. S. Stats. 332).
The plaintiff claims that by means of those acts, and the operation of the statutes above referred to, he acquired the title in fee to the premises. By the 5th section of the act of Congress of July 1st, 1864, all the right and title of the United States to the lands within the corporate limits of San Francisco, as defined by the Act of April 15th, 1851, with certain exceptions therein named, were relinquished and granted to the city “ for the uses and purposes specified in the ordinances of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, 1858, entitled an act concerning the city of San Francisco, and to ratify and confirm certain ordinances óf the Common Council of the city.’”
One of the ordinances referred to in that act is an ordinance which is commonly known as the Van Hess Ordinance. That ordinance having been ratified and confirmed by the Act of March 11th, 1858, took effect by relation, as of the date of its passage. The plaintiff’s position is that he took whatever right, title or interest the city then held, and intended to transfer by the ordinance, and that therefore he is one of the persons for whose use the right and title of
Statute Confirming Van Ness Ordinance.—The statute of March 11th, 1858, ratifying the Van Ness Ordinance, gave to those claiming under the ordinance no new or additional ground of recovery not embraced in the ordinance itself.
Power of San Francisco over its Pueblo Lands.—The right or- interest which the city of San Francisco had in its pueblo lands, it held subject to the control of the Legislature of the State, and Congress could not control the city in any manner whatever in respect to the disposition of such pueblo lands.
Kelease by Congress of Lands Covered by Van Ness Ordinance.—Whatever right or title, if any, the United States had in the lands embraced within the Van Ness Ordinance, by the act of Congress of July 1st, 1864, passed to the city of San Francisco, for the use and benefit of the persons in whom vested the Van Ness Ordinance title.
Statute of Limitations and Van Ness Ordinance.—Persons who, before the passage of the Van Ness Ordinance, had been in possession of land embraced within the area covered by it, and who had been ousted by intruders, and who had no other right or title than such as proceeded from prior possession, must have commenced their actions within the time prescribed by the Statute of Limitations; and the statute commenced running, as to such persons, on the eleventh day of April, 1855.
[285]
the United States was relinquished and granted to the city, by®the Act of Congress of July 1st, 1864.
The right, title or interest which was transferred by virtue of the ordinance, may, for convenience, be denominated the Van Hess Ordinance title. The beneficiaries provided for by the ordinance may be divided into four classes: First, those who held title by virtue of the grants and conveyances enumerated in the ordinance; second, those who were in the actual possession, by themselves or by their tenants, on the first day of January, 1855, and so continued up to the twentieth day of June, 1855; third, those whose possession had been “ interrupted by an intruder or trespasser, ” and “had been recovered by legal process;” and fourth, those whose possession had been “interrupted by an intruder and trespasser,” and “may be recovered by legal process.” The plaintiff, if entitled to benefits of the ordinance, falls within the fourth class.
The defendants having been in the actual possession of the premises on the first day of January, 1855, claiming adversely to the plaintiff, and having continued in possession from thence up to the 20th day of June, 1855, and up to the commencement of this action, are prima facie entitled to the Van Hess Ordinance title; and the plaintiff, in order to show that he is entitled to the benefits of the ordinance, and acquired that title, must make it appear not only that his possession was “interrupted by an intruder or trespasser” —that is to say, that he ivas ousted from the possession— but also that the possession from which he was ousted “may be recovered by legal process.” The question as to whether he is entitled to the benefits of the ordinance, depends upon the construction to be given to the language of the ordinance, “ may be recovered by legal process.” By the words “legal process” is meant an action brought in a Court of competent jurisdiction. The only difficult matter for construction is the words “may be recovered;” and the question arising upon those words is whether they import a right of recovery only, or a recovery in fact—that is to say, whether the Van Hess Ordinance title devolved upon the person who then possessed the right of recovery as against [286]an intruder or trespasser, or whether it vests in the person who in fact recovers the possession from such intruder or trespasser. , We are of the opinion that those words mean, when read with the other words of the section, “shall be recovered.” The purpose of the ordinance, as we construe it, was to give the Van Ness Ordinance title to those who had already recovered the possession from an intruder or trespasser, and to those who should thereafter recover the possession from an intruder or trespasser. The recovery contemplated by that provision, was not one which might be had on one of the grants or conveyances, mentioned in the second section of the ordinance, for the persons holding title by virtue of such grants and conveyances, were deemed to be in possession of the lands thereby granted and conveyed, and the Van Ness Ordinance title vested in them immediately upon the taking effect of the ordinance; but the recovery was one which was to be had upon some right or title other than such grants and conveyances. In respect to the first three classes of beneficiaries, as above enumerated, the ordinance makes possession, or that which is declared or would be deemed in law, equivalent to possession, the fact or condition, by virtue of which the Van Ness Ordinance title vests in the grantee; and we are of the opinion that it was contemplated by the ordinance, that those who are comprehended in the fourth class should also have a recovery, by means of which they, like those holding-title by virtue of the grants and conveyances, should be deemed to be in possession of the land recovered. As to the persons of the fourth class, the recovery of the possession occupies the place, and stands in the stead, of the actual possession which those of the second class are required to have—it is the fact, the condition, by virtue of which the Van Ness Ordinance title vests in them. Had it been the intention to give that title to those who then had only the right of recovery, it is unaccountable that it should not have been so expressed in the ordinance, instead of saying that it should vest in those who then had recovered, or those who may recover. The expression, “has been recovered or may be recovered,’’was employed to denote past [287]recoveries and future recoveries, but neither in the one sense more than the other, do the words signify merely the right of recovery.
If this be the proper construction of the ordinance, the Van Ness Ordinance title has not vested in the plaintiff, and, of course, he cannot rely on it for a recovery in this action. The ordinance declares, in effect, that a person included in the fourth class, who shall recover the possession of the lands from which he was ousted, shall have the Van Ness Ordinance title, but does not declare, nor can it be inferred therefrom, that he shall receive that title not only as the fruits, but also for the purpose, of a recovery.
When such a person has only a prior possession, as the ground upon which to recover the possession from the trespasser or intruder, his rights and his remedies are measured by tlie-same rules that they would be in an action brought for the recovery of the possession of lands situated without said city, and in which the plaintiff relied solely on prior possession. The plaintiff’s opening statement shows only one ground upon which he can claim a right of recovery in this action, and that is his prior possession. The statute of March 11th, 1858, gave him no new or additional ground of recovery. It mérely ratified and confirmed the ordinance, leaving it in all respects, so far as regards the matters here involved, as it would have been had the Common Council, at (the time of the passage of the ordinance, possessed competent authority to dispose of the right, title, or interest of the city in or to the lands within its corporate limits, in the mode adopted by the ordinance. Nor does the plaintiff derive any aid in the solution of the question here involved from the Act of Congress of July 1st, 1864. The right, title, interest, or estate in, or power over, those lands which the city held, prior to the passage of the Act of Congress, she held subject to the control of the Legislature of the State alone; and Congress could not control the city in that respect, in any manner, or for any purpose whatsoever. The act of Congress merely relinquished and granted to the city, for the uses and purposes specified in the ordinance, whatever right or title the United States then held in or to the lands [288]within the corporate limits of the city, etc. It is unnecessary, for the purposes of this case, to determine what right or title the United States then held, or what right, title, interest, estate, or power in or over the lands the city held at the time of the passage of the Act of Congress; but whatever right or title, in any parcel of those lands the United States then held, passed to the city for &e use and benefit of the persons entitled to the Van Ness Ordinance title, if there was any person so entitled.
The sole ground, as already stated, upon which the plaintiff can rely for a recovery, is his prior possession; and if he fails in that, the nonsuit was right. The defendants were in the actual possession of the premises on and before the first day of January, 1855, and so remained from that time up to the time of the commencement of this action— the seventeenth day of April, 1868—holding adversely to the plaintiff, and they set up the Statute of Limitations. The statute commenced running on the eleventh day of April, 1855, the day of the passage of the amendatory statute, and had fully run when this action was commenced.
If the construction we have given to the ordinance be maintainable, the Statute of Limitations is as applicable here as to a case in which the controversy turns on the relative right of the parties growing out of the prior possession of one party and the adverse possession of the other party, of lands situated without the city of San Francisco. "We see nothing in the case which leads to the conclusion that the Statute of Limitations is not applicable. Had the ordinance provided that the YanNess Ordinance title should vest in the person who should recover from an intruder or trespass!’ in an action to be commenced within a designated time, can it be doubted that a person claiming the benefits of the ordinance must have commenced his action within the designated time? There is nothing in the ordinance which gives a further or other time for the commencement of an action than is prescribed by the Statute of Limitations, nor can it be inferred therefrom that it was intended that such statute should not be applicable to actions that might be brought to recover the possession of the lands [289]from an intruder or trespasser. The Act of Congress of July 1, 1864, does not have the effect to prevent the running of the statute, or to fix a new time from which the statute would begin to rnn in cases of this character. Had the plaintiff acquired the Van Ness Ordinance title before the passage of the Act, then the question might arise whether he could be barred of his action until five years after the passage of the Act; but that question does not arise here, for that Act merely relinquished and granted to the city whatever right and title the United States had, for the uses and purposes specified in the ordinance; and the plaintiff cannot claim the benefit of the Act until he brings himself within the ordinance by a recovery of the possession as therein provided for. In Montgomery v. Bevans, 1 Sawyer, 653, both parties claimed under Alcalde’s grants— the one issued in 1846, and the other in 1847, and both prior to the treaty, and the Van Ness Ordinance title had vested in the plaintiff; but the question there considered does not arise here, for the plaintiff, as we have seen, must rely for a recovery upon prior possession alone.
Our conclusion upon this point is, that a person who comes within the fourth class of the beneficiaries provided for by the ordinance, and who at its passage had no other right or title than such as proceeded from prior possession, and who sues an intruder or trespasser to recover the possession of lands, in order to entitle himself to the Tan Ness Ordinance title, must have commenced his action within the time prescribed by the Statute of Limitations; and that the statute commenced running in this case upon the passage of the Statute of Limitations of April 11th, 1855; and that more than five years having elapsed, after that date, before the action was commenced, and the defendants, during all that time, holding the possession adversely to the plaintiff, the action is barred by the statute.
Judgment affirmed.
Dissent — McKinstry
McKinstry, J., dissenting: I cannot agree to the construction placed by the majority of the Court upon the second section of the Van Ness Ordinance.
No estate was acquired by any one by means of the ordinance alone; but, in considering its language, it is convenient to regard the ordinance as effecting the purpose intended. That purpose, as I understand it, was to release and grant (in prcesenti), the right and claim of the city to all the classes of persons mentioned in the second section. The section begins: “The city of San Francisco hereby relinquishes and grants,” etc. Much stress has been placed on the words, “has been or may be recovered by legal process;” “may” being considered the equivalent of “shall,” and the recovery by legal process held to be a condition precedent to the vesting of the grant. But it is admitted that the rights of such persons as were in possession during the period mentioned, and of those who, having been previously ousted, had recovered the possession before the passage of the order, became fixed—so far as the city could fix them—when the ordinance ivas adopted; and the granting words equally cover those who had not recovered the possession when the ordinance was passed, but who then had the right of possession by virtue of a prior occupation.
The persons included within the last class could ordinarily acquire the enjoyment of their property only by an action for the recovery of the possession—an action which would determine the prior possession and ouster; and the words “may re'cover,” etc., are simply a declaration of what would have been the legal effect of the grant had these words been omitted. With or without the clause referred to, a proper suit was the mode of ascertaining whether the plaintiff was entitled to the benefits of the ordinance when it took effect. The right and claim of the city was transferred at the date of the ordinance; the result of the legal process, if the plaintiff should be successful, being only to identify, the grantee and place him in possession.
[291]If this construction is correct, the opening statement of counsel connected the plaintiff with the pueblo title.
If the plaintiff was connected with the pueblo title, an action by him was not barred by the Statute of Limitations until July 1st, 1869. (Montgomery v. Bevans, 1 Sawyer R., 653; Henshaw v. Bissel, Sup. Ct. U. S., Oct. T. 1873.)
I express no opinion as to the other questions presented by the record.
AI Brief
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Holding. The court held that the Van Ness Ordinance title does not vest in a claimant who was ousted from possession until they have actually recovered possession from an intruder or trespasser through legal process. Consequently, a claimant relying solely on prior possession is subject to the Statute of Limitations, which bars their action if not commenced within the statutory period.
Issues
Whether the Van Ness Ordinance title vests in a claimant upon the mere right to recover possession or only upon an actual recovery of possession.
Whether the Statute of Limitations applies to a claimant seeking to recover possession of lands under the Van Ness Ordinance based on prior possession.