Upham v. Hosking

By the COURT. Plaintiff brought an action of ejectment to recover certain lands described in his complaint.

Upon the land sued for there was a wharf, built under a franchise granted by the state to one Collins, under whom defendant derived title. Judgment passed for plaintiff; there was a motion for a.new trial, which was denied, and this appeal is from the judgment as well as from the order denying a new trial.

Plaintiff introduced in evidence a patent from the state, bearing date May 18, 1872, and also a deed from one Brown to him, dated February 29, 1872.

The evidence and admissions of the parties clearly show that all of the lands in controversy are within the boundaries of the description contained in the patent, except a strip seventeen by one hundred and thirty feet; as to that strip, it was admitted that the title was in Brown, who conveyed the same to plaintiff, unless the strip was excluded by an exception contained in the deed of conveyance. The finding of the court is “that the plaintiff is, and was at the commencement of this suit, and at all the times alleged in his complaint, the owner in fee simple and entitled to the possession of all and singular the premises described in his complaint”; which necessarily includes a finding that the strip mentioned was not excluded by the exception in the deed. There is nothing in the evidence to satisfy us that the finding is incorrect.

The plaintiff’s title under the patent is attacked upon the ground that the land lies within two miles of the town of Collinsville and was therefore not subject to sale. There are two answers to this objection, the first of which' is, that it appears by the fourteenth finding of the court “that the said land included in said location and patent is not, and never has been, situated within two miles of any town whatever. ’ ’ If the defendant attempted to defeat the patent by showing that the land described therein was within two miles of a town, and [136]therefore reserved from sale, it was his duty to do so by affirmative and satisfactory evidence that there was a town within two miles of the land. This he failed to do, and we think the court was justified by the evidence in finding that there was no town within two miles.

But if the evidence satisfactorily showed that such a town existed, we think it would not have availed the defendant in view of the curative act of March 27, 1872. On this point it will be sufficient for us to refer to the late decision of this court in the case of Rowell v. Perkins, 56 Cal. 226, where the act above referred to is fully considered by the court, and we concur in the views therein expressed by Mr. Justice McKinstry.