WOLF et al. v. BALDWIN, 19 Cal. 306

Field, C. J. delivered the opinion of the Coper, J. concurring. The only question which we consider it is necessary to determine for the disposition of the present case is, whether the evidence produced by the plaintiffs was sufficient to show that they had such possession of the premises in controversy as to entitle them to the benefits of the Van Hess Ordinance. By the second

section of that ordinance the city of San Francisco relinquished and granted all her'right and claim to the lands within her corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the first of January, 1855, provided such possession was continued up to the time of the introduction of the ordinance in the Common Council; or if interrupted by an intruder or trespasser, had been or might be recovered by legal process.

By actual possession, as the terms are here used, is meant that 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. An inclosure, by an ordinary fence, of the premises without residence thereon, or improvements or cultivation, or other acts of ownership, is of itself insufficient.

An inclosure of this character is by itself only the declaration of an intention to appropriate and possess the premises ; it does not, unaccompanied with any other acts, constitute the aetual possession which the ordinance contemplates. (Elliott v. Pearl, 10 Pet. 441; Plume v. Seward, 4 Cal. 95.) Tested by these views, the plaintiffs entirely failed to establish any actual possession of the premises in controversy. They proved that they purchased in 1853, and that the parties through whom they claimed had built a two board fence around the premises.

There was no evidence that the fence was in existence as late as 1855, except that given by one witness who could not testify positively upon the subject, and who limited his statement, such as it was—made from an imperfect recollection—to the fence on one side of the lot. On the other hand, parties residing in the immediate vicinity of the premises testified that there was no fence on the lot in 1854, or subsequently. But laying this testimony of the defense entirely aside, the evidence produced by the plaintiffs was obviously insufficient.

It was not shown that they, or the parties through whom they claim, ever occupied the lot, or improved it, or cultivated it, or subjected it to any uses whatever. To have availed them, the inclosure should have been followed by some appropriate and continued use of the premises. If upon the flimsy evidence produced by them, the plaintiffs could recover, the Court would teem, as is well observed by counsel, with cases brought by squatters, who from 1849 to 1854 made temporary locations on the pueblo lands, which they had abandoned long before the passage of the Van Hess Ordinance.

The object of that ordinance was to protect actual possessors—parties who were seeking by settlement to build up homes within the city limits, and not migratory squatters or mere land speculators. The possession required by its provisions must not only have been actual on or before January 1st, 1855, but must have been continued up to the period when the ordinance was introduced into the Common Council, unless interrupted by a trespasser or an intruder. It is to be regretted that the ordinance did not fix a limit, in feet or lots, to the quantity of land of which the possessor might acquire the title of the city.

But having declared that the title should go to the extent of the actual possession, it only remains for the Courts to hold claimants to clear proof of such possession. Judgment reversed, and cause remanded for a new trial. Baldwin, J. I agree in the conclusions of the Chief Justice and the reasoning by which they are supported.

The Van Ness Ordinance assures parties in “ actual possession ” of land of the city on the first of January, 1855, and continued until the ordinance was introduced into the Common Council, all the right and title of the city to the lots in such possession, subject to some limitations and exceptions not necessary to be noticed here. The policy of the ordinance was liberal, and designed for the benefit of persons who had taken up the land for the purpose of settlement. No limitation of quantity was made, and the Court has no power to annex any to the grant.

No definition is given in the act of the phrase “ actual possession,” unless it be that furnished by an expression in the proviso to the first

section of the act, in which the words “ occupied and possessed” are used in connection with the holding of the land by a tenant or tenants. Prima facie, the city is entitled to the lands within her boundaries ; and it rests with those claiming through a grant from her, under the provisions of this act, to show a compliance with the terms and conditions on which, and on which alone, the law vests the title. “Actual possession” of the claimed premises on the first of January, 1855, thus continued, is sufficient to make out this title ; and the only question is, What constitutes this actual possession ?

If the word occupancy had been used, probably the plaintiff suing must have shown that he or his tenant resided or had his domicil on the premises ; but that term is not used; and the legal meaning of the terms employed, “ actual possession,” is different from that of this phrase. But it is equally clear, that a mere constructive possession will not do. If this were so, the qualifying adjective, “ actual,” is senseless. Effect must be given to all the words, and to the whole spirit and intention of the act.

The property, at the given date, must have been subject to the will and dominion of the claimant, unless in cases where the possession was interrupted as explained in the ordinance. Now, it would seem that no great difficulty should be experienced in ascertaining whether a given person was in “ actual possession ” of a lot of city property in January, 1855. If he resided on a lot, with defined boundaries or ascertained limits, the fact of his residence, improvements, etc., there at the time could be easily proved, or the contrary disproved.

It would seem almost impossible to manufacture a case which would falsify the truth as to such a fact, for if he resided on the place he must have had a house or dwelling of some sort there, and if this building be not now, or at the time of the trial, standing, some marks or remains of it could probably be found.

If the claimant asserts that he had “ actual possession ” by means of inclosure, he must show a substantial inclosure existing at that date ; and if he did not reside within it, and had no tenement or dwelling there, nor cultivated the land, or used it for any useful purpose—as a garden, or orchard, or ranch—this mere fact of his once having built a fence around the lines would not be enough to show an actual possession within the act. It is not enough that he once had a fence there, when that fence has disappeared, and he did nothing further to show a dominion, or claim, or use of the premises.

Nor could a claimant go off after making some trifling improvements, and make a deed to some one else, and then either claim himself, or his assignee claim—nothing else being done by either—a title to the premises. If the claimant merely built a hut or shanty, and then went off, or suffered the improvements to disappear or go to decay before the time mentioned, this is proof of abandonment, and he could not claim afterwards that he was entitled to the benefit of the act.

Nor could a man, as intimated before, because some time prior to January, 1855, he put up a slight fence to denote his appropriation of certain grounds, and did nothing more, and had no residence on the premises, maintain his pretension. A fence, of itself, is not actual possession, nor is a fence in all cases necessary to such a possession. The putting up of a fence is proof that the party designed at the time to appropriate the land, and to exclude others from the use of it. (Ellicott v. Pearl, 10 Pet. 441.) But it is not necessarily

an act of exclusive dominion. A party may have possession without any fence; as, for example, where he claims a lot under a deed, and the lot is described and known by a number, and he has taken possession of and occupies a part, under claim of the whole. But as against the legal seizin of the city, it cannot be maintained that the mere putting up of a fence around one acre of ground, and doing nothing more, is any actual possession of all so inclosed; for the city had a right to put a fence around the inclosure of the plaintiff, and he could not have objected.

If there could be any title under the act from the mere fact that the claimant had a fence around the premises on the first of January, 1855, it must be shown affirmatively that at that time the fence was a substantial inclosure, which not only indicated a purpose of appropriation, but was of such character and quality as to exclude intrusion by persons or cattle upon the premises; in other words, that it afforded means of defense, of itself, against intrusion or ingress by either. (Plume v.

Seward, 4 Cal. 95.) In every case in which the claimant cannot show that in January, 1855, he was residing on some part of the claimed premises, by himself or tenants, or used them for some substantial business purpose to which the lot was adapted, or that he had a fence around the premises so substantial and permanent as to exclude cattle and persons, then the intendment is that he had no actual possession within the meaning of the ordinance.

And even if he had a substantial inclosure, effectual for all purposes of exclusion of persons and cattle on the first of January, 1855, if there was no other act of use or cultivation, and no occupancy of any part, it is not necessary to decide that this would of itself be sufficient to give the actual possession contemplated by the ordinance.

If there be special facts which go to show that the claimant, notwithstanding he does not come up to the requirements as here given, has a right to the property, these special facts must be shown; but as a general principle governing such cases, we hold that the claim, in the absence of these facts, is unfounded.

No equivocal or scrambling possession will do; but it must be a possession so held and evidenced that, in the absence of the Van Ness Ordinance, the party holding or claiming it could, after the lapse of the legal period, invoke in his behalf the Statute of Limitations, as against the holder of the adverse title, if that holder were a private person. It must, in other words, be an open, unequivocal, actual possession, notorious, apparent, uninterrupted and exclusive, carrying with it the marks and evidences of ownership, which apply in ordinary cases to the possession of real property.

There can then be no actual possession, within the meaning of the ordinance, as a general rule, unless the party claiming had, on the first of January, 1855, occupancy by himself or some tenant residing on the premises, or was in the use of them as before explained. He must either have been upon the premises at the given periods, by himself or tenant, or in the use of the premises according to the nature of his business or the nature of the premises, for some purpose for which they are adapted—as a ranch, garden, tan-yard, orchard, or something of this kind.

Or, if occupying, by himself or tenant, a part of a lot or tract with defined boundaries, under a deed or deeds, he has inclosed the tract, and used a part for cultivation or otherwise—thus indicating a claim and appropriation of all by the use and claim of a part as parcel of a general tract—this, perhaps, would be enough to show that actual possession of all, which the ordinance requires to perfect his title.

It is possible that this definition and these illustrations will not embrace every case within the meaning of the ordinance, nor exclude every case which is not within it; but these suggestions and rules may furnish guides for the decision of most of the cases which will arise under the ordinance; and it is not possible, as justly observed in the Pennsylvania cases, to prescribe rules on so complex a subject, which will apply without exception to every case which may occur; but exceptional cases must be left to be decided when they are presented.

Nothing in this opinion contravenes anything said in the City and County of San Francisco v. Beideman (17 Cal. 443); for the facts in that case, as shown by the affidavits, brought it within the principle already announced; and the Court endeavored in the opinion in that case cautiously to preclude the presumption, that a claimant, making the pretension here set up, could be within the ordinance.

In that case we said: “ It is not necessary to define what constitutes an actual possession within the meaning of this ordinance; indeed, it is almost impossible to give a definition which would apply to and cover all claims within the meaning of the ordinance, and include none which do not so come. When we look into the various proofs of this case, in the shape of affidavits, we have no hesitation in concluding that the weight of the testimony does show such a case on the part of the defendant as would bring him within the ordinance, and authorize the dissolution of the injunction.

An actual inclosure, the defendant residing or having tenants and a dwelling within it, the continued claim to the property, holding a deed purporting to convey the title, selling a portion, rising a portion for a milk ranch or other agricultural purposes, the laying off of the property into lots, making leases, and the occupation of tenants, fencing in smaller portions of the tract, and repeated acts of dominion over different parts of it—these acts, continued or done at intervals for a series of years, would seem conclusive of the fact of actual possession, and would not be rebutted by the mere fact that occasionally an exterior fence was out of repair, or that it was not always sufficient to prevent forcible intrusion into the premises by persons or cattle; nor would it be rebutted by an occar sional trespass upon small parcels of the tract, committed by persons setting up no title save that of mere entry and possession.

We do not mean to say that any one of these acts, much less that an inclosure only sufficient to mark a line of boundary, would be enough, nor that even a substantial inclosure, which might at the time of making it have been sufficient to keep out men and cattle, would alone be sufficient if the party making it did nothing more, and especially if he abandoned or never lived on the premises, or made no improvements, or indicated no purpose of occupation by himself or tenant; but this is not the case here, and it is not necessary to pass upon such a question.

We think, however, a concurrence of all the acts to which we have made reference does bring the case within the principle, and that the preponderance of the proofs is greatly in favor of this state of things.” The principles here asserted are supported, not only by previous decisions of this Court, but an array of authorities leading to the same conclusion from the English and American Courts. It is not necessary to cite them here. They are collected in the appendix to Adams on Ejectment, 570, et seq.—title Adverse Possession.