Fletcher v. Mower

SHARPSTEIN, J. ; Although the complaint in this action is entitled “ a complaint to quiet title,” it contains all the material allegations of a com[422]plaint in ejectment, and we shall treat it as such. It avers the ownership of the plaintiffs, the wrongful entry and possession of the defendants, and prays, among other things, that the plaintiffs recover" the possession of the premises. The plaintiffs are entitled to such relief, within the issues, as they have proved themselves entitled to, without regard to the mere form of the pleading.

The defendant in his answer denies that the plaintiffs are the owners of said land, or any part thereof. He further denies that within five years last past he “ wrongfully or unlawfully entered into possession of a portion of said land, or that he holds possession thereof, or any part thereof, unlawfully or wrongfully or against right,” which amounts to an admission that he did, in fact, enter into possession and still holds the same.

For a further and separate answer, defendant alleges that plaintiffs’ claim of title is based upon an application of one E. W. Squires to purchase said land from the State, made at a time when said land was not subject to selection, and that said application did not conform to the requirements of law in respect to the affidavit and description of the land to be filed with the county recorder, and that the certificate of purchase and patent issued by the State were illegal and void.

And for a further and separate answer, the defendant alleges, that he had been in possession of said land, exercising control over it by occupation, cultivation, renting, and payment of taxes thereon, for the past three years, claiiiiing adversely to the plaintiffs and all other persons, by and in consequence of a claim of preemption duly initiated in the United States district land office, at Los Angeles, made by him in good faith, believing .that said land was, at the initiation of said pre-emption claim, public land of the United States, and on his information and belief he alleges that it still is; and that his claim has not yet been determined by the land department of the United States.

Upon these pleadings the parties went to trial, and a judgment was rendered in favor of the defendant, from which this appeal is taken.

The Court found substantially as follows: “ That the section lines within which the land in controversy lies were surveyed by authority of the United States in February, 1868, and said