HICKS v. WHITESIDE, 23 Cal. 404

Crocker, J. delivered the opinion of the Court—Horton, J. concurring. This is an action to recover the possession of a tract of land in Butte County. _ The tract really in controversy is the north half of the south-east quarter of

Section 8, in Township 22 north, of Range 1 east. The plaintiff claimed under the Possessory Act of this State. He offered in evidence his declaration of location, filed in the Recorder’s office; -and the defendant objected to its introduction on the ground that it described the tract as being in “ Township 21,” instead of Township 22, and contends that the Court erred in overruling the objection. The premises are particularly described by the surrounding claims, which clearly show that the tract lay in Township 22, and that the figures 21 were inserted by mistake, instead of 22.

The Court therefore properly overruled the objection. It seems that Herring, the County-Surveyor, testified as a witness for the plaintiff, that he made the survey of the tract of land described in the plaintiff’s declaration; that he wrote the declaration; and that the tract embraced one hundred and sixty acres. On cross-examination, the defendant asked him when this survey was made, and whether he made the survey prior to or at the time he wrote the certificate; to which the plaintiff objected, that the questions were not proper on cross-examination.

The Court sustained the objection; and this is also assigned for error. The questions were clearly proper ones on cross-examination; but it is evident that the defendant was not injured by this ruling of the Court. The objection only went to the putting of the questions at that particular time; and did not preclude him from putting the same questions, upon making him a witness for himself, had he so desired.

If, when the defendant recalled the witness as his own, the Court had then overruled the questions, he might perhaps have claimed that he had been injured thereby; but it seems that he then asked the' question without objection. The questions do not seem to have been of so important or material a character as to justify us in reversing the judgment because they were excluded at that particular stage of the trial.

It appears that the defendant had been in the possession, prior to the filing of the possessory claim by the plaintiff, of an old field, a part of which, including about fifteen acres, lay upon the north side of the eighty-acre tract in controversy. It seems that the remainder of the eighty acres was inclosed by a fence in the spring of 1860, built by the defendant and other parties.

One of these persons, Gamer, was called as a witness, and the defendant asked k him what he knew or .understood about the fences thus built including any part of the Whitesides tract, and whether it included any portion of the tract upon which Whitesides resided. The possessory claim filed by the plaintiff, bounded the tract on the north by the “ Whitesides claim,” as well as described it as the south-east quarter of Sec. 8.

The Court, on the ground of irrelevancy, excluded these questions, and also a question put to another witness respecting the knowledge of the plaintiff, that the defendant claimed the tract in controversy at the time of a certain conversation between the parties respecting the building of fences. We think all of these questions were relevant to the matters in controversy between the parties, and that the Court erred in excluding them.

They tend to show the knowledge of the parties of the location of the lines of their respective claims, which was important, taken in connection with other evidence respecting the building of fences on their claims by these parties and their neighbors.

The defendant asked the Court to give the jury the following instruction, which was refused: “ If the jury do not find that there was two hundred dollars worth of improvements on the land claimed by plaintiff at the time of the pretended location, or prior to the institution of this suit, pertaining to the realty, the plaintiff cannot claim under the act; in this event, unless plaintiff had an actual possession thereof prior to defendant, they will find for the defendant.” This is also assigned for error.

The plaintiff’s declaration was filed in the Recorder’s office December 17th, 1860, and this action was commenced February 20th, 1861. The fourth

section of the Possessory Act requires that, unless improvements to the value of two hundred dollars shall have been made prior to the recording, they must be put on within ninety days after the date of the record.

Sec. 2 of the same act provides that “ no person shall be entitled to maintain any such action for possession of or injury to any claim unless he or she occupy the same, and shall have complied with the provisions of the third and fourth sections of this act.” The instruction is based upon the principle that these improvements must be made before the action is commenced—while the respondent contends that he had a right to show that they were put on or completed after that time, if done within the ninety days. We think the respondent is mistaken in his construction of the statute.

The general rule is well settled, that the plaintiff must show a right to maintain the action at the commencement of the suit. He cannot commence his action while his right or title is imperfect or inchoate, and trust to completing or perfecting it before the trial takes place. The right of action in this case is founded upon the statute, and that imperatively requires that he “ shall have complied ” with this provision of

section four before he shall be entitled to maintain the action. (Wright v. Whitesides, 15 Cal. 47 ; Sweetland v. Froe, 6 Id. 147.) The judgment is reversed, and the cause remanded for a new trial.