O'Connor v. Fogle

McKee, J. This appeal is from the final judgment and order denying a motion for a new trial in this case. The action was ejectment. By the record it appears that the plaintiff claimed [10]a right of entry to the demanded premises through a patent which had been issued by the State of California, April 24,1874, to the immediate grantor of the plaintiff. The patent vested in the patentee title to the land, and, as his grantee, the plaintiff was entitled to recover possession unless his cause of action was barred by the Statute of Limitations. That was the defense interposed to the action by the following answer: —

“And for a further and separate answer and defense the defendant alleges that he has been in the quiet, peaceful, and exclusive possession of said land in the plaintiff’s complaint described, holding and claiming the same adversely to said plaintiff, and adversely to all other persons for more than five years before the commencement of this suit, to wit, ever since prior to September 1, 1870, and that neither the plaintiff, nor either of his ancestors or ancestor, predecessor, or grantors was ever seized or possessed of the said land, or any portion of the same within five years before the commencement of this action, or at all.”

The evidence given upon the issue raised by this answer tended to prove that the defendant entered on the land in the year 1870, as a qualified pre-emptor. At that time the land was part of the public domain of the United States within this State. While residing on the land with his family, the defendant, in December, 1870, filed his declaratory statement in the United States land office in the district within which the land was-situated. When he filed this statement the township had been surveyed by the United States authorities, the survey was approved, and the plat of the survey had been filed in the proper United States land office. Subsequent, however, to the filing of the township plat, and of the declaratory statement, the land was listed to the State of California, in fulfillment of a selection, which had been made by the State prior to the United States surveys of the land; and on April 24, 1874, the State issued the patent to the plaintiff’s grantor. Against the listing of the land to the State the defendant protested, and contested the title of the State; but the United States authorities decided the contest against him, and in December, 1876, canceled his declaratory statement. Yet the defendant continued to reside with his family on the land, as before the [11]