WILLIAM D. BLISS and JONATHAN JOHNSON v. L. ELLSWORTH, B. F. TUTTLE, J. S. CUTTER, J. B. HINKLE, Trustees of the City of Petaluma, and HUGH STOCKDALE, 36 Cal. 310

By the Court, Sprague, J. : As between plaintiffs and defendant Stockdale, which was in the “bona fide occupancy” of the premises in controversy on the first day of March, 1867, seems to be the only question involved in this case in the Court below and on this appeal.

In the Court below, the cause was submitted to the Court upon an agreed statement of facts and an affidavit of one Sweetland, which was read in evidence in behalf of plaintiff's without objection, and the findings of the Court upon the facts and evidence so submitted answer the above question of bona fide occupation of the premises as follows: “That on said first day of March, 1867, said premises were in the bona fide occupancy of the plaintiff's. “That said premises were, not on the first day of March, 1867, and never have been, in the bona fide occupancy of defendant, Hugh Stockdale.’’ The above findings are fully sustained by the agreed statement of facts and evidence, as found in the record, and the judgment and decree of the Court, based ujDon these and other special findings of fact, to which appellants take no exception, should be sustained.

The affidavit of Sweetland was offered and read in evidence by plaintiffs without objection of any kind from defendants, and they cannot, in this Court for the first time, object to the same on the ground of immateriality or any other proper ground of objection in the Court below; and even if objection had been made to this evidence at the proper time in the Court below, on the simple ground of immateriality, we think such objection would not have been well taken.

The facts contained in the affidavit are material and pertinent, as tending to show continued acts of ownership and control oí the premises hy plaintiffs in the years 1864 and 1865, to rebut a presumption of abandonment sought to be urged against them by defendant Stockdale; also, as tending to illustrate the character and bona fides of the possession claimed by defendant Stockdale on the first of March, 1867.

It seems entirely clear from the facts, as agreed upon and disclosed hy the evidence of Sweetland, that all the possession of the premises ever acquired by defendant Stockdale was tortious, and a wanton trespass upon the pre-existing possession and rights of plaintiffs. Such a possession cannot be regarded as bona fide. Judgment affirmed, and remittitur directed to issue forthwith.