Howell v. Rogers (1874) · DecisionDepot

Howell v. Rogers

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1874 No. No. 2,528Published

Before: Crockett

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiff established sufficient possession to qualify for the Van Ness Ordinance and that the Hawes Limitation Act must be specially pleaded to be asserted as a defense.

Issues

Whether the plaintiff proved sufficient possession to benefit from the Van Ness Ordinance.
Whether the Hawes Limitation Act must be specially pleaded to be raised as a defense.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The proof established a sufficient possession in the grantors of the plaintiff to entitle them to the benefit of the ordinance.”

“If the defendant intended to rely upon the act of March 5th, 1864, as a defense, he should have pleaded it specially.”

Synopsis

Possession TJndeb Van Ness Oedinance.—Possession of a lot in San Francisco within the limits covered by the Van Ness Ordinance, by a fence of posts and wires, four wires passing through each post, the fence being sufficient to turn cattle, but not goats and hogs, is sufficient to entitle the possessor to the benefit of the Van Ness Ordinance.

Pleading Special Statutes of Limitations.—A defendant who claims the benefit of an Act for the limitation of actions, which applies only to a particular class of cases, must plead it specially. A plea of the general Statute of Limitations is not sufficient.

By the Court, Crockett, J.: The grounds relied upon by the defendants for a reversal of the judgment are—first, that the plaintiff did not prove such a possession in himself or his grantors as to entitle him to the benefit of the Van Ness Ordinance; second, that the action was barred by the act of March 5th, 1864, commonly known as the “ Hawes Limitation Act.” (Statutes 1863-4, p. 149). On the first point it will suffice to say that it is untenable. The proof established a sufficient possession in the grantors of the plaintiff to entitle them to the benefit of the ordinance. The second point is also untenable. If the defendant intended to rely upon the act of March 5th, 1864, as a defense, he should have pleaded it specially. The act applies only to a particular class of eases; and a defendant who claims its protection, must set it up as a defense in his answer, or he will be deemed to have waived it. In such cases a plea of the. general statute of limitations will not suffice.

Judgment affirmed. Remittitur forthwith.

Mr. Chief Justice Wallace did not express an opinion.

Howell v. Rogers

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief