Watkins v. Lynch

Foote, C. This is an action in ejectment for a part of what was once used as a public highway, and, as alleged, had been abandoned by the public for more than five years.

The parties to the suit had through their several grantors become purchasers by deed of the land lying on each side of the road-bed.

The plaintiff claimed the whole of the road-bed; the defendant, that he owns up to the center or thread of the road, and is entitled to its possession if it is abandoned, but argues that it had not been abandoned as a public road.

One Berry had obtained on or about the 26th of October, 1858, from the state a certificate of purchase of school lands, which included the land in dispute, and had paid twenty per cent of the purchase-money required by law.

On the seventeenth day of May, 1861, he assigned that certificate to one Showers, and on the 18th of that month made a bargain and sale deed of the land it embraced to the same party.

[23]In the year 1862, as we think the evidence tends to show, Showers by deed of quitclaim, carrying whatever title he then had, which appears to have been lost, conveyed to one Drais a tract of land, a part of that before conveyed to the former by Berry, containing about four or four and a half acres, more or less.

The plaintiff by mesne conveyances claims under a patent issued to Showers on the twenty-fourth day of May, 1873.

In all the conveyances through which the plaintiff claims, there was excepted therefrom the land conveyed by Showers to Drais, a part of which, as the defendant alleges, is the land in dispute.

The court, trying the case'without a jury, gave judgment in favor of the defendant, and from that and an order denying a new trial the plaintiff appeals.

The most important claim of the plaintiff to the right of recovery in the action was that he became the owner in fee of the land in suit after the receipt from Showers of the deed of June 23, 1873, and after the patent was issued.

The court below seems to have been of the opposite opinion, basing its decision upon its belief that in law the patent title inured to the support of that conveyed in the deed from Showers to Drais, and included the land in the road up to the center thereof, opposite to the land mentioned in that deed, and this would carry the title to the southern forty feet of that road; and because it appeared to the court that the land sued for still remained a part of the public road or highway called the Mokelumne Hill road.