Heilbron v. Heinlen

Belcher, C. C. — This is an action to recover possession of a tract of land in Fresno County, which is alleged to be a part of the rancho Laguna de Tache, and is described as “ that portion of the northwest quarter of section 36, township 18 south, range 19 east, which lies north of Kings River.”

The complaint is in the usual form for actions of ejectment. The answer denies the plaintiffs’ seisin or right to the possession of the land, and sets up the statute of limitations.

The case was tried by a jury, and the verdict and judgment were in favor of plaintiffs. The defendants moved [377]for a new trial, and, their motion deing denied, appealed from the judgment and order.

As originally filed, the complaint described the land sued for as in range 20 east. Shortly afterward, plaintiffs’ counsel asked and were permitted, against the objections of defendants, to amend the complaint by striking out the word “ twenty ” in the description of the range, and inserting in the place thereof the word “ nineteen.”

It is claimed that the court erred in permitting this .amendment to be made, as it substituted a new and different cause of action.’ We see no error in the ruling. A mistake had evidently been made in describing the land sought to be recovered, and it was not an abuse of the court’s discretion to allow it to be corrected. (Code Civ. Proc., sec. 473.)

At the trial, the plaintiffs introduced in evidence a patent from the United .States to Manuel Castro, dated March 6, 1866, for about forty-eight thousand acres of land, known as the rancho Laguna de Tache, and deeds from Castro conveying all his right, title, and interest in the rancho to Jeremiah Clark, and a lease of the rancho, dated May 1,1880, for ten years from Clark to the plaintiffs, with the privilege of purchasing the property at any time during the term. They then called witnesses to prove that the demanded premises were included within the boundaries of the grant as fixed by the patent.

In support of the issues tendered by them, the defendants called witnesses to prove that the demanded premises were not within the calls of the Castro patent; that the land .was swamp-land, and was sold as such by the state in 1861, and that the defendant John Heinlen had been occupying and claiming it adversely to the plaintiffs and their grantor for more than ten years before the commencement of the action.