Brumagim v. Bradshaw (39 Cal. 24, 1870)

Crockett, J.,

delivered the opinion of the Court:

Since a rehearing was granted in this case, Ave have been furnished with able and elaborate briefs by the respective counsel, and have carefully reviewed the propositions of law presented on the appeal.

The notice of motion for a new trial, specifies, as one of the grounds, the insufficiency of the evidence to justify the verdict, and, as a separate ground, that the verdict is against law. The statement, in support of the motion, fails to specify the particulars wherein the evidence was insufficient to justify the verdict as required by Section 195 of the Practice Act, which provides “that, if no such specification be made, the statement shall be disregarded.” But the statement purports to contain all the evidence given on the trial; and the counsel for the appellants insists, with much earnestness, I that if it clearly appears, from all the evidence, that the verdict ought to have been for the defendants, then the ver-¡ diet is against law and ought to be set aside on that ground, notwithstanding the omission to specify in the statement the ¡ particulars wherein the evidence was insufficient to support the verdict. But the argument in support of this proposi-"' tion, hoAvever plausible, is based on a misconception of the true intent of this provision of the Practice Act. Prior to the adoption of this provision, it was sufficient for the moving party to allege, in general terms, in his notice of motion, that the evidence Avas insufficient to justify the verdict, without specifying any particulars wherein it was insufficient. The practical result was, that the adverse party had no notice of the particular ground on which the verdict was to be assailed in this respect. He came to the argument of the motion in utter ignorance of the points on which his adversary would rely in respect to the insufficiency of the evidence. If the evidence was voluminous, and the questions at issue perplexing and difficult of solution, he was placed at a great disadvantage on the argument of the motion, for want of an opportunity for previous preparation in collating the evidence and showing its force and effect, as applied to the questions in issue. It was to prevent this surprise that Section 195 was amended, so as to require the moving party, who relied on the insufficiency of the evidence as a ground of his motion, to specify in his statement the particulars wherein it was insufficient, on pain of having his statement disregarded by the Court. In this case there was no such specification; and we are bound by the mandate of the statute to disregard so much of the statement as might otherwise have been applicable to this ground of the motion. In other words, we are precluded from inquiring whether the evidence was insufficient to justify the verdict. This provision of the statute would be wholly nugatory, if, notwithstanding the omission to specify any particulars in the statement, we could still look into the evidence, analyze and carefully examine it, in order to ascertain if it was sufficient to support the verdict; and if we found it to be insufficient, that we could then set aside the verdict, not on that ground, but on the other separate ground, that it is against law. This would be an evasion of a plain provision of the statute, and would practically annul it. If we could set aside a verdict as against law, because the whole evidence, fairly construed, failed to sustain it, the same result would follow if. there was a failure of proof on any one material point in the; case. If the plaintiff in ejectment relied on a paper title, we would, on that theory, be compelled to set aside a verdict in his favor, as against law, if, on reviewing the evidence, we found that he lacked a single link in his chain of title, or that he failed to establish the possession of the defendant, or any other material fact essential to his right of action. If a new trial is sought because the evidence does not support the verdict, it can only be had by assigning, as the ground of the motion, the insufficiency of the evidence, and pointing out in the statement the particulars in which it is insufficient, as required by the statute.

It is not enough to aver that the verdict is against law, and then offer to support the averment by showing that the verdict is not supported by the evidence, and is, for that reason, “ against law.” • If such a course of proceeding was tolerated, all the other specific grounds for new trial, enumerated in the statute, might, for the same reason, be condensed into the one general ground, that “the verdict is against law;” for, in that general sense, it would be “against law, ” if there was any valid reason whatsoever for a new trial. But the statute, in authorizing a new trial on the ground that the verdict “is against law,” evidently does not intend to include in that phrase all or any of the other several distinct and separate grounds of the motion, which are specified in the Act. Whatever may be the class of cases to which that phrase was intended to apply, it is clear that it has no application to cases falling within either of the other subdivisions, into which the grounds for a'new trial are divided by the statute.

For these reasons, this Court has no power to review the evidence in this cause, in order to ascertain whether it supports the verdict. In this respect, the appellants are concluded by the verdict.

On the trial, John Treat, a witness for the defendants, testified, on his examination in chief, in a somewhat rambling and disjointed manner, that in the year 1850 he took possession of the Potrero, by repairing the stone wall across the peninsula; that George Treat paid for the whole or the greater part of the labor and material used in making the repairs, but then had no interest in. the scheme for getting possession of the Potrero; but it was understood between them, that George was subsequently to become interested; that he subsequently entered into an agreement with the administrator of De Haro to pay rent for the land, and paid some rent under the agreement; that whilst he was so occupying the land, he allowed some persons to go there to make bricks; that he leased a brick-yard to one Weir. He then proceeds as follows : “My impression is they paid rent; am not positive. I knew Lawhead and Lubbersmier then had a brick-yard on the premises at that time; I received no rent for that; I presume I received it of other parties ; I do not know; my impression is-—I am not very confident.” The defendants then propounded this question to him : “What reason have you for believing they did?” Which was objected to by the plaintiff. The Court then put this question to the witness : “Do you know whether they paid any rent of your own knowledge ?” To which he answered : “I never saw them pay any rent.” Q.—“Did you hear them say they paid rent?” A.—“I cannot say I did.” And thereupon the Court excluded the question, and the defendants excepted, and rely upon this ruling as error. T There is only one aspect of the case, in which the answer to the question could possibly be material. The plaintiff’s J cause of action was founded exclusively on his alleged prior [possession of the Potrero, which he claimed to have acquired 'under George Treat. The defense denied this prior possession, either in George Treat or in Dyson, the plaintiff’s intestate; and as a circumstance tending to rebut an exclusive possession of or dominion over the property, by either George Treat or Dyson, they proved by the witness, John Treat, that the persons occupying the brick-yards were in possession of portions of the property at the time when it was claimed by the plaintiff to have been in the possession of George Treat or Dyson. But the witness stated it as his impression, that some of these persons paid rent for the premises so occupied by them, which, if true, would prove that they held in subordination to John Treat (and George Treat, if the two were then jointly interested in the property), and, consequently, that their possession and occupation was not hostile, but in subordination to the title or possession of the Treats. In order to test the recollection of the witness, in respect to the payment of rent by the persons using the brick-yards, the defendants propounded the question, which was objected to: “ What reason have you for believing they did ? ” (Pay rent.) We do not perceive how the answer to the question could possibly have benefited the defendants. If the witness, in answer, had stated satisfactory reasons for his impression, if it did not damage, it clearly could not have aided the defendants. On the other hand, if he had stated the most unsatisfactory, or even absurd reasons for his impression, it would not, materially, have benefited the defendants, inasmuch as he had already testified that the persons occupying the brick-yards (except Lawhead and Lubbersmier, who, he admitted, had never paid rent) entered with his permission and license; and by the mere fact of entering under a license, their occupation and possession was in subordination to the possession of Treat, whether they paid rent or not. It was, therefore, im-i material to ascertain whether or not they paid rent, and the defendants were not prejudiced by the ruling of the Court) r even though it be conceded that the answer sought to be elicited from the witness, would have been as favorable to them as the nature of the question would permit.

On the cross-examination of the same witness, he was asked by the plaintiff: ‘ Did you not turn over all the right you had to that property to George Treat, finally?” He, answers: “I did,- with the exception of the lease that was' spoken of already—the piece of land that was rented to| Weir, on the Potrero. There were certain portions that were not turned over to him; a piece that there was a brickyard on. I turned over all, except those who held under a lease from me—that is, he would have the same rights that I was to have. I turned over all to him, except those to whom I had leased the same rights that I had. I think that arrangement was consummated in the latter part of 1851. I am not positive whether the transfer was made then to George Treat or Dyson.”

On re-examination, by the defendants, he testified: “ I turned over such rights as I had?—the^iglj); to pasture cattle there; and, also, I had certain rights to use the soil.” The defendants proceed as follows : “ You said that you turned over the possession to George Treat, and that he was to have the same rights that you had ? ” The witness answers : “I do not know, positively, whether I turned it over to Treat or Dyson; they were both acting; Dyson, I think, was acting for Treat. ”

The defendants’ counsel then propounded the following question: “I now repeat the question, What rights were those you turned over ? that fact having been drawn out on the cross-examination; ” but the question was excluded by the Court, on the objection of the plaintiff, and this ruling is relied upon as error.

The Court, in our opinion, was fully justified in excluding the question, on the ground that it had already been fully answered, and no good could result from a repetition of the previous testimony. The Nisi Prius Court must necessarily exercise a sound discretion in respect to the latitude to be allowed in sifting the testimony of a witness, by a rigid and often prolix examination.

In the cross-examination of an adverse witness, who betrays an evident bias for the party calling him, or, on the examination in chief, of a reluctant witness, called by the party himself, the Court should exercise a sound discretion in properly relaxing the rule, so as to promote the ends of justice; but, in this instance, we see no reason to believe that the Court abused its discretion in refusing to permit the witness, on re-examination by the defendants, to be further interrogated on a point concerning which he had already fully testified.

The only points remaining for discussion, which I deem it necessary to notice, relate to the instructions to the jury.

The defendants asked for three instructions, the first of which was given, with a qualification added by the Court, and the two last were properly refused. They do not correctly define the presumptions arising from prior possession, as against a mere intruder without title, or color of title.

At the instance of the plaintiff, the Court gave twelve instructions to the jury, the second of which is in the following words;

‘ ‘ If the jury are satisfied from the evidence given in tliis cause, that George Treat entered upon and inclosed the Potrero in the year 1850, and are further satisfied that he then made a complete inclosure of the same, and that such inclosure was sufficient to turn and protect stock, and that he actually used such inclosure for that purpose up to the time of the alleged conveyance to Dyson, and that he deeded the same to Dyson, and that the land was nsed by Dyson subsequent thereto, for the purpose of pasturage, and that the land was suitable for pasturage; and that the defendants, or either of them who have answered, or those under whom they claim, entered adversely and subsequent to the completion of said inclosure, and while the said land was being so used by said Treat prior, and, by said Dyson, after said conveyance, you will find for the plaintiff against such defendant, or defendants, provided such defendant, or defendants, was occupying the premises at the time of the commencement of this suit.”

This instruction is objected to by the defendants as wholly unauthorized by the testimony, and calculated to mislead the jury.

There is no contrariety in the evidence as to the natural features of the Potrero, nor as to the acts performed by Treat or Dyson, which, it is claimed, amounted, in law, to an inclosure and to the actual possession of the land. The testimony shows the Potrero to be a peninsula, containing about one thousand acres; bounded on the north by Mission creek and bay, on the east by the bay of San Francisco, on the south by the same bay and Precita creek, and on the west by a stone wall and ditch, running from Mission creek on the north to Precita creek on the south, across the neck of the peninsula. It further appears that the wall and ditch were ancient works, probably built by the priests of the adjoining Mission of Dolores at an early day; and that in 1850, they had become considerably dilapitated, so as no longer to prevent the ingress and egress of cattle; that John^ Treat, or George Treat, or the two jointly, in the summer or autumn of 1850, repaired the wall and ditch, so as that, thereafter, it was sufficient to turn cattle; that they erected a gate in the wall, through which admission was had to the Potrero, and a small corral, for herding cattle, inside the wall, together with a shanty, in which the gate-keeper resided ; that, immediately after the wall was repaired and the gate erected, they commenced to receive horses for pasturage and used the Potrero for that purpose—having, at times, several hundred head of horses pasturing there for hire; . that, whilst the land was being thus used, John Treat relinquished to George Treat all his interest in the premises, who thereafter continued to use the land for pasturage, as it had before been used, until February, 1852, when he conveyed, by deed, to Dyson, all his interest in the property; and thereafter Dyson used the land for pasturage up to the time when the defendants entered; that the wall and ditch, together with the creeks and bay, formed an inclosure sufficient to protect and turn cattle; that, in 1850, and for several years thereafter, the Potrero afforded grass suitable for pasturage.

If the fact does not sufficiently appear in proof, the Court will take judicial notice, that the Potrero, in the year 1850, was separated from the City of San Francisco, as it then was, only by Mission creek and bay, and that it is now a portion of the city, divided into lots, blocks and streets. Courts take judicial notice of the geographical divisions of counties and incorporated cities, and of current events of general notoriety, and of the ports and waters of the State in which the tide ebbs and flows. (People v. Smith, 1 Cal. 9; United States v. La Vengeance, 3 Dall. 297; Peyroux v. Howard, 7 Pet. 341.)

In United States v. La Vengeance, the Court took judicial notice of the geographical position of Sandy Hook. In the case of The Apollon (9 Wheat. 374), the Court held that it was bound to take judicial notice of public facts and geographical positions; and, in Peyroux v. Howard, that it would take judicial notice of the position of the City of New Orleans, and whether the tide ebbed and flowed there. “In fine, Courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.” (1 Greenl. Ev. Sec. 6.)

It would be an absurdity to hold that the Courts of this State will not take judicial notice of the position of the City of San Francisco and of Mission bay, the northern boundary of the Potrero, or of Mission creek, which is declared by law to be a navigable stream, and in which the tide ebbs and flows. Nor can the Court assume to be ignorant of the fact that the Potrero is divided into lots, blocks and streets, which is a fact of such universal notoriety as to render proof of it unnecessary.

These being the facts of the case, do they establish, or tend to establish, in George Treat or Dyson such an actual possession of the whole Potrero, as to have justified the Court in giving the instruction above quoted ?

For the plaintiff, the argument is, that the two creeks, the bay and the wall and ditch formed a perfect inclosure, capable of turning and protecting cattle, and that it would be an absurdity to hold that a fence, along the margin of the bay and creek, was necessary, in order to establish their possession, when those natural barriers formed a more perfect defense than any artificial structure could have done; that, by repairing the wall and erecting the gate, Treat and Dyson held the only means of access to the property, and that it was more suitable for pasturage than for any other pur-z pose, in its then condition, and they used it in that way; that, by these means, they subjected the property to their exclusive dominion and control, and had the actual possession, the possessio peclis, until they were intruded upon by the defendants, who were trespassers without title.

On the other hand, the defendants claim that where so large a body of land is surrounded—except across a narrow neck of it—by tide waters, having a beach on which the public has a right to land and to use for any lawful purpose, a fence across the neck does not, of itself, give'possession of or dominion over the whole peninsula; that a beach on tide waters is a public highway, and is no more effective, as an inclosure, than a public road would be; that, though a precipitous bluff or cliff may be sufficient to form a part of an inclosure, whether it front on navigable waters or not, there is no proof in this case of any such bluff or cliff, nor of any barrier along the beach, except the water; that there having been no sufficient inclosure to constitute possession of itself, the mere temporary use of the land for pasturage, and par] ticularly unaccompanied by a bona fide claim of title, is not, under the former decisions of this Court, such a possessio pedtis as will maintain ejectment; that, devoting to the purpose of pasturing, merely, so large a body of land, immediately contiguous to a large city, is not such an exercise of dominion over it, nor such a subjection of it to the will and control of the party, as to constitute a possessio pedis ; that it appears from the complaint, that the land in contest is jbounded partly by a marsh, and that a marsh is not, per se, jiand, in the absence of proof explaining its character, such van obstruction as to form a natural barrier against the inroads of cattle.

When the instruction refers to a “complete inclosure” of the Potrero by George Treat, we must construe this phrase in reference to the proofs. There was not the slightest evidence of any “inclosure” of the Potrero by Treat, except such as resulted from repairing the wall and ditch. We cannot, therefore, infer that this instruction was founded on the hypothesis that there was the least evidence tending to prove that Treat erected a fence, ditch or wall around the entire Potrero,

The Court evidently intended to say to the jury, that if ¡Treat repaired the wall and ditch in such a manner, that, together with the other natural barriers, it formed a complete inclosure, sufficient to turn cattle, and if the land was ¡suitable for pasturage, and was used by Treat, and after-wards by Dyson for that purpose, up to the time of the entry by the defendants, then, that there had been estabished in Dyson such possessio pedis as entitled the plaintiff |to recover. We think the jury could not have failed to understand the instruction in this light, and could not, therefore, have been misled by it in this respect; and particularly when considered* in connection with the fourth instruction, which refers more definitely to the inclosure by means of the wall and ditch, and by the creeks and waters of the bay.

We have carefully considered the able and ingenious argument of the defendants’ counsel, to the effect that the tide waters of the bay, with a beach in front of them, on which the public was free to land, and to use for any legitimate purpose, would not constitute a sufficient barrier on that side to form a portion of a complete inclosure, in a legal sense. But we think their proposition is not tenable. If it were, the result would be that a tract of land, completely inclosed with a substantial fence on three of its sides, and with the fourth side fronting on the ocean, could not be held to be inclosed; or that an island in the ocean could not be deemed to be sufficiently inclosed, unless it had precipitous cliffs, or some sufficient artificial inclosure all around it. A proposition cannot be sound, which necessarily leads to such absurd results.

Nor is there any force in the argument that the verdict should be set aside because the complaint states the land to be in part bounded on one side by a marsh. It is evident that a marsh may not only be so sharply defined, where it| meets the upland, as to accurately mark a boundary, but iti may be also utterly impenetrable by man or beast. We need’ no definition by lexicographers to satisfy us that marshes are often of this character. If it be claimed that the proof fails ( to show that this particular marsh was of that character, and that this was a material fact to be proved by the plaintiff to support the verdict, the answer is two-fold : First—That all, the presumptions are in support of the judgment; and, Second-—-That the defendants, in their statement on the motion for new trial, failed to specify wherein the evidence was insufficient, and it is too late to raise the point for the first time in this Court.

This brings us to the consideration of what we deem to bej the most important and difficult point in the case. Wti assume that the Court, in the instruction on which we havd been commenting, clearly intended to say to the jury—andj that the jury so understood it—that if Treat repaired the wall and ditch, and if these, together with the creeks and waters of the bay, formed a sufficient inclosure to turn cattle, and if the land was suitable for pasturage, and was used by Treat and afterwards by Dyson for that purpose, up to the; time of the entry by the defendants, without title, that, in'; that event, it resulted, as a conclusion of law, that there had been established in Dyson such a possessio pedis as entitled I the plaintiff to recover. For the reasons already stated, w must assume that the facts referred to in the instruction were satisfactorily proved. But did the Court draw a correct conclusion of law from these facts ? Conceding every fact hypothetically stated in the instruction to have been proved, JDid Dyson have such a possessio pedis as entitled him to recover ? This Court has repeatedly had occasion to define what constitute such a possession; and, under ordinary conditions, there is but little difficulty in applying the law to the facts. In Coryell v. Cain (16 Cal. 573), which is a leading case in this State on that point, we define actual possession to be “a subjection to the will and dominion of the claimant, and it is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, .according to the particular locality and quality.of the property.” In Plume v. Seward (4 Cal. 96), it is said that to maintain an action on the ground of prior possession, “there imust be an actual bona fide occupation, a possessio pedis, a ¡subjection to the will and control, as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership, such as recording deeds, paying taxes,” etc. In Wolf v. Baldwin (19 Cal. 313), in stating what kind of “actual occupation” was required finder the Van Ness Ordinance, the Court says it was a “possession which is accompanied with the real and effectual enjoyment of the property. It is the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must be evidenced by occupation, or cultivation, or other appropriate use, according to the locality and character of the particular premises. * * * It must, in other words, be an open, unequivocal, actual possession—notorious, apparent, uninterrupted and exclusive—carrying with it marks and evidences of ownership, which apply in ordinary cases to the /possession of real property.”

But we need not multiply authorities on a point concerning which there can be little or no difference of opinion. The only difficulty lies in the application of these principles to the case at bar. It is clearly established, both by reason and authority, that the acts of ownership and dominion over land, which may be sufficient to constitute an actual possession, vary according to the condition, size and locality of the tract. If it contains but one acre, and have upon it a valuable quarry of stone or marble, and be not adapted to any other use than as a quarry, and if it be openly claimed and actually and notoriously used for that purpose, for a reasonable time, this might be such an act of dominion over it as to establish an actual possession, even though there was no inclosure or residence upon it. So if it be a small parcel, containing a mine, the working of the mine, in the usual manner, might establish an actual possession at common law, without the aid of our mining laws and in the absence of any inclosure. But if the tract contain one thousand acres, with a mine or a quarry on one margin of it, no one would maintain that the mere working of the mine or quarry, without, other acts of ownership, would establish a possession of the whole tract. This proposition is well illustrated by the case’ of Ewing v. Burnet (11 Pet. 41), in which the contest related to a rugged lot in the City of Cincinnati, only valuable for the sand and gravel which it afforded for the úse of the inhabitants. The lot was not inclosed or inhabited; but the party who claimed it resided in the vicinity, and for a series of years, sold sand and gravel from it, issued licenses to others to dig sand and gravel there and sued trespassers upon it. The Supreme Court held these acts of dominion to be sufficient to establish an adverse possession. In delivering the opinion of the Court, Justice Baldwin says: “Neither actual occupation, cultivation or residence are necessary to constitute actual possession, when the property is so situated as not to admit of any permanent, useful improvement; and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. ”

The same principle might be illustrated by numerous examples. Acts of dominion over a town lot, which would be sufficient to establish an actual possession, might be wholly inadequate to that end, as applied to a tract of one thousand acres; and, on the other hand, the herding of cattle, for a reasonable time, on a tract of one hundred acres, suitable only for that purpose, and accompanied by a claim of title, might, under certain circumstances, establish possession of it; whilst the pasturing of cattle on a town lot, suitable only for building purposes, would be wholly insufficient. The ¡general principle which underlies all this class of cases is, ¡that the acts of dominion must be adapted to the particular ¡land, its condition, locality and appropriate use. The phillosophy of the rule is, that by such acts the party proclaims to the public that he asserts an exclusive ownership over the land, and the acts which he performs are in harmony with his claim of title. Hence they must be such as to give notice to the public; or, in the language of Justice Baldwin, in Wolf v. Baldwin (supra), it must be “an open, unequivocal, actual possession—notorious, apparent, uninterrupted and exclusive—carrying with it the marks and evidences of ownership. ”

In this case the Court held, as a conclusion of law, that ¡by repairing the wall and ditch, and using the land for pasturage, if it was suitable for that purpose, and, if the inclospre.was sufficient to turn cattle, Dyson did all that was {necessary to notify the public of his claim, and to establish Ian actual possession in law.

If Treat had inclosed the Potrero by a fence or ditch ¡entirely around it, and sufficient to turn cattle, it would not admit of discussion, that, by the inclosure alone, and without other acts of dominion, he would have established an ¡actual possession of the land. An inclosure of that character, is, in itself, sufficient proof of an actual' possession. ¡But it is so, only, because of the erection of the artificial ‘barrier is an open, notorious act of" dominion, proclaiming in unmistakable terms to the public that the land is appropriated and set apart from the adjoining lands for the exclusive use of the person who erected the barrier. A mere intention to occupy land, however openly proclaimed, is not possession. The intention must be carried into actual execution by such open, unequivocal and notorious acts of dominion, as plainly indicate to .the public that the person who performs them has appropriated the land and claims the exclusive dominion over it. Anything short of this, is not what the law denominates actual possession. A substantial inclosure, erected by the party around the entire tract, is such an act of dominion, and has been held by the Courts to be of itself sufficient to establish the possession. Nor can it be doubted that a^sufficient inclosure, partly by artificial and partly by natural barriers, may, under certain circumstances, establish an actual possession. If, for example, a tract be inclosed on three of its sides by a substantial fence, and the fourth side front upon the ocean, or a deep river, or a precipitous cliff, the erection of the fence would, doubtless, clearly enough indicate to the public that the land was appropriated; or, if there be a small peninsula, containing but a few acres, a fence across the neck of it might accomplish the same result. But it is evident that) where natural barriers form much the greater portion of the