People ex rel. Love v. Center (66 Cal. 551, 1885)

McKinstry, J.

The action was treated by the court below as an action “to quiet title,” under section 738 of the Code of Civil Procedure, and may properly be said to be such an action. The absolute ownership of the lands by the plaintiff is averred, and it is alleged that the defendants claim rights under the acts of the legislature, and a certain instrument purporting to be a patent, which are mentioned in the complaint. Besides the prayer for general relief, there is a special prayer that defendants be summoned to answer the premises, and that the court decree to be invalid all claims of defendants under or by virtue of the alleged legislative grant or patent.

Section 254 of the act known as the practice act, reads :

“ An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.”

Under that section the owner in possession, on knowledge of the assertion of an adverse claim, could require the nature and character of the adverse estate or interest “ to be produced, exposed, and judicially determined.” (Curtis v. Sutter, 15 Cal. 263.) “ There was no difficulty in so conducting a suit, under the statute, as fully to protect the legal rights of the parties, and at the same time to secure the beneficial result afforded by a court of equity in bills of peace—which is repose from further litigation. Indeed, the remedy under the statute was eminently simple, direct and efficacious.” (Ibid.)

Section 738 of the Code of Civil Procedure is like section 254 of the former act, except that since the adoption of the code the action may be brought by one out of possession. Bow, as formerly, the defendant may assert a legal estate, or any equity which he may claim to have enforced, the difference being that while under the former statute the possession of the plaintiff was evidence, prima facie, that he was seized in fee, now the plaintiff out of possession, as against the defendant in possession, must prove in himself a legal paramount title which entitles him to the possession. The plaintiff—assuming the state to be entitled to the possession—might have brought an action at law for the recovery of the lands. Under the code, one having the legal title is not required to bring his action at law, and then, after recovery of the possession, to file a bill to quiet his title or possession against equitable claims asserted by the defendant in the ejectment, and to have such claims decreed to be invalid, but may secure both ends in one proceeding. It may be the original defendants herein would have been entitled to demand a jury to try the legal issue as to the right of possession, but a jury was expressly waived. The plaintiff has asked, in effect, that the adverse claims of the defendants be jjroduced, exposed, and adjudicated. The people, when they had established their legal title and right of possession, were to be treated as if they were in possession when the complaint was filed. In their answer the defendants, appealing, allege facts, which, with the evidence to support the allegations, they contend show that they have acquired the legal title of the state by virtue of a compliance, on the part of their predecessors, with the conditions of certain acts of the legislature, to wit: an act “to provide for the construction of canals,” etc., approved April 11, 1857; an act amendatory of the last-named act, approved April 10, 1862, and an act “ in relation to the construction of canals,” etc., approved April 25,1868. (Stats. 1857, 192; Stats. 1862, 190; Stats. 1863, 494.) Of these, further reference need be made only to the act of 1862.

The defendant says that such reclamation was made, within three years, as was required by the act of 1862; and that the governor and surveyor general certified to the reclamation as provided in the sixth section of that act. But the evidence sustained the finding of the court below, that neither the grantees nor their assigns ever reclaimed, so as to make the lands susceptible of cultivation, any of the districts described in the act. And the court also found that the governor and surveyor general never certified to the reclamation of the lands in any district. There is no pretense that the surveyor general ever joined in any certificate that lands had been reclaimed, unless the patent, signed by the governor and countersigned by the “ register of the state land office,” constitutes such certificate. The register had no power except such as was conferred by statute (Hittell’s Gen. Law. par. 4196) ; and the duty of certifying to the reclamation, imposed by the act of 1862, was imposed upon the surveyor general. The fact that the same person held both offices did not authorize the register to assume a function committed to the surveyor. But if the patent be considered as a writing signed both by the governor and surveyor general, it contains no declarations or recitals showing that the statute conditions had been complied with. The statute divides the lands described in it into three districts, and provides for the vesting of the state title to (one-half of ?) the odd-numbered sections within a district, upon reclamation of all the lands within such district. The patent does not recite that the lands of any district have been reclaimed. And of the recited considerations for the grant, one is the