Foot v. Murphy

Foote, C. This is an action of ejectment brought by Joseph Foot, as the administrator of José Ignacio Roze, deceased, against A. S. Murphy, to recover possession of certain lands of the decedent’s estate.

The plaintiff obtained judgment for the recovery of the premises, one dollar damages, and the costs of the [105]action; from that, and an order denying him a new trial, the defendant has appealed.

Neither party to the action claimed or showed any paper title to the premises, but the plaintiff relied upon the right of prior possession, from which he claimed to have been unlawfully ousted by the defendant, to sustain his contention.

It is contended by the defendant that the findings do not sustain the judgment.

They show substantially that the plaintiff’s decedent entered upon the land, and took possession of the same ten years prior to the first day of April, 1883; that this possession was continued by the plaintiff as administrator until his ouster by defendant; that the land was subjected to the will and dominion of the decedent, and said administrator, for the purpose to which it was adapted, that is, the grazing of cattle; that the former inclosed it with a fence on all sides save that on which he owned other land, which other land was used by them for grazing, in conjunction with that in dispute; that they excluded all other persons from using it, and exclusively enjoyed its advantages for grazing purposes, by means of the fence and herders keeping their own cattle upon the • land and other cattle away from it; which state of facts was sufficient to warrant the judgment. (Sheldon v. Mull, 67 Cal. 299, and cases cited.)

It is true that the defendant claimed a prior possession, and showed that at one time, anterior to that of the plaintiff, he had such possession, but the court found that such possession had been abandoned before that of the plaintiff commenced, and we think the evidence justified the finding.

The finding of abandonment appears under the heading of “ Conclusions of Law,” but it is evidently a mere finding of a fact.

Perhaps it is unfortunate that it, as well as other findings strictly of facts, appear under that same heading, but that does not constitute them conclusions of law.

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