Labory v. Los Angeles Orphan Asylum
Before: Belcher
Synopsis
Real Property — Constructive Possession •— Adverse Possession by Intruder — Color of Title. — Title to land draws to it the possession, and it remains with the owner of the legal title until he is divested of it by an actual adverse possession; and while he is in actual possession of a part of the premises, he has constructive possession of the remainder, and can be ousted by a mere intruder only to the extent of the actual occupation of such intruder; and no entry by an intruder under color of title to the whole tract can give him a constructive possession which would oust or supersede the constructive possession of the real owner.
Id.—Public Lands — Possession by City — Judicial Notice.—The court will take judicial notice of the actual possession by a city of part of its public lands, and of its constructive possession of the remainder.
Id. — Quieting Title — Defense of Prescription — Payment of Taxes. — In an' action to quiet title to land, where it appears that the land was originally a part of the pueblo lands of a city, under conveyances from which the defendant and its predecessors held the legal title of record, and that neither the plaintiff nor his predecessors in interest, who claimed a title by prescription to the whole tract by virtue of their actual possession of part of it, had paid the taxes assessed upon the land after April 1, 1878, but that defendant and its predecessors in interest, to whom they had been assessed, had continuously paid the same after said date, the defense of prescription cannot be sustained.
Id. — Right of Corporation to Defend Action — Record of Copy of Articles — Evidence — Appeal — Objection for First Time — Waiver. — An objection that a corporation defendant in an action to quiet title to land had not proved a compliance with the provisions of section 299 of the Civil Code, requiring all corporations to file a certified copy of the copy of its articles of incorporation in every county in which it holds property, and that therefore it was not entitled to defend the action, cannot be taken for the first time upon appeal. The objection is waived, if not taken at the trial, or, at least, at the conclusion thereof.
Belcher, C. This is an action to quiet the plaintiff’s title to a tract of land in the city of Los Angeles, and the complaint is in the usual form. The defendant is a corporation, and by its answer it denies that the plaintiff is the owner or entitled to the possession of a described portion of the tract, and avers that it is the owner in fee and in possession thereof, and it disclaims any claim to or interest in the remaining portion of the tract.
The court below found the facts to be in accordance with the averments of the answer, and gave judgment accordingly. The plaintiff appeals from the judgment, and an order denying his motion for a new trial.
'The city of Los Angeles was incorporated by an act of the legislature in 1850, and was made to succeed to all the rights, claims, and powers of the pueblo of that name in regard to property. In due time it presented to the board of land commissioners appointed under the [272]act of Congress of March 3,1851, its claim for four square leagues of pueblo lands, and its title thereto was thereafter duly and regularly confirmed. The decree of confirmation became final on February 1, 1858, and on August 9, 1866, the United States issued its patent for the lands to the city.
The land in controversy is included within the four leagues so confirmed and patented, and the principal question is, Had the plaintiff’s predecessors in interest acquired a title thereto by prescription, as against the defendant and its predecessors in interest, who claimed title under conveyances from the city ?
To establish his title, the plaintiff relies upon deeds, executed by his predecessors in interest, of a tract of land including the land in controversy, and an actual occupancy of a small part of the tract, under claim in good faith and color of title to the whole. The first deed was executed on May 31, 1860, and the last, to the plaintiff, on August 26, 1890. The tract described was situated on the east side of and adjoining the Los Angeles Elver, and was in form a parallelogram, having a length from west to east of 400 varas, and a width of 250 varas. Next to the river was a small flat containing two or three acres, then a rise, or hill, and back of that, a level plain, or mesa, extending east for many miles. The flat next to the river was inclosed and planted with fruit trees, and on it was an adobe house, which was occupied by each of the grantors, or his tenants, during the time of his claimed ownership. The balance of the tract was never inclosed or used by any of the plaintiff’s predecessors in interest, but was a common pasture, used by any one and every one for that purpose who chose to do so, until the part of it in dispute was inclosed by the defendant in March, 1886.
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