Weyle v. Center

SANDEBSON, J. This is an action to recover Lot No. 2, in what, as claimed by the plaintiff, is called the Foley tract, in the city of San Francisco. The action is founded upon prior possession under the Van Ness ordinance. The plaintiff claims under a series of conveyances commencing with Michael Foley, who was, as he alleges, the first possessor, while the defendant claims under John Wilson as the prior possessor. The alleged prior possession of Foley dates from 1850, and that of Wilson from June, 1853.

Several exceptions were taken to the admission in evidence of the various deeds in the plaintiff’s chain of title, which under the view which we take of the controlling question in the case (prior possession), we deem it unnecessary to notice. Those'deeds are of no consequence unless it be shown that Foley was in the actual prior possession of lot No. 2, within the meaning of the Van Ness ordinance, and we are of the opinion that the plaintiff has utterly failed to show that fact.

Who was in possession of lot No. 2, on or before the first day of January, 1855, within the meaning of the Van Ness ordinance, would seem to be a fact requiring but little evidence to establish. That ordinance was not designed to graft the city title upon a vague, indeterminate and floating pos[311]session, but upon an actual bona fide and exclusive possession evidenced by such acts as clearly show a segregation and subjection of the land to the will and dominion of the claimant. So far, however, as this case is concerned, it is unnecessary to inquire Avhat special acts aaúII have that effect, for in our judgment the testimony in this case fails to shoAV any acts Avhatever on the part of Foley tending to vest him with the actual possession of lot No. 2. But notAvithstanding the apparent simplicity of the question, this case is lumbered with a mass of evidence filling over a hundred and fifty pages of printed matter, nearly all of which tends in no respect to throw any light upon the question of the alleged prior possession of Foley of lot No. 2. With the issue thus covered up by a mass of indigestible testimony, it is not surprising that the jury failed to scent the truth. Under the circumstances there could have been no well-grounded hope of their guessing right. It is only by the most patient and repeated sifting that the few grains of wheat to be found in the testimony can be separated from the mountains of chaff beneath which they are concealed.

That Foley had a house situated about a quarter of a mile from the locus in quo, Avith a garden and corral inclosed nearby, cannot be denied; but where the boundaries to his alleged tract of a hundred and sixty acres were and what they Avere it is utterly impossible to say, and much less can it be said that lot No. 2 Avas ever within those boundaries. This want of visible and permanent boundaries may be accounted for, perhaps, upon the ground that Foley seems to have supposed that he could hold a hundred and sixty acres under the survey of his so-called pre-emption right, filed in the alcalde’s office in 1849, which was offered in evidence, but excluded by the court. Deeming that a sufficient security, it doubtless Avas his intention to inclose as fast as his means might enable him or the necessities of his business require.