EGBERT JUDSON, and GILBERT J. PLACE, Appellants, v. PAUL MALLOY, JOHN DOE SOUTHWORTH, DANIEL E. GREEN et al., Respondents, 40 Cal. 299

Bhodes, C. J., delivéred the opinion of the Court, Wallace, J., Cbockett, J., and Temple, J., concurring: The plaintiffs, in their statement on motion for a new trial, assigned very many — more than forty — grounds of error. This was caused, doubtless, by the fact that the action was brought for the recovery of a large tract of land, or rather a number of tracts, which, in the aggregate, constitute a large body of land, and against many defendants who were holding separate portions of the land, without any common interest.

After the action was dismissed as to many of the defendants, a trial was had as to the remaining defendants, and it appears that the land in controversy between the plaintiff and those defendants, consists of three distinct parcels, which are known as the Olds tract, the Donnovan tract, and the Southworth and Green tract, and that the defendants in possession of each tract relied upon a different source of title. The action, in its present form, is practically interminable.

It is. scarcely possible, and it is certainly not probable, that the several- counsel for the different parties of defendants should agree as to the management of the defence, or in respect to the questions of law arising at the trial. They may, and probably will, disagree as to the grounds of objection to the plaintiff’s evidence, and as to the evidence to be adduced on their behalf, and as to the charges proposed to be given to the jury. Under such circumstances, error is almost inevitable.

There should have been separate trials between the plaintiffs, and tbe defendants in possession of eacb of tbe three tracts above mentioned; and bad tbe defendants moved for separate trials it would bave been tbe duty of tbe Court to bave so ordered. And we are also of tbe opinion tbat it would bave been proper for tbe Court, without any motion therefor, to bave ordered separate trials, when it became apparent tbat tbe several parcels of land in' controversy were separate and distinct, and tbat tbe several classes of defendants relied upon different sources of title.

If separate trials in such cases be not allowed, tbe rule permitting tbe plaintiff to join, as defendants, all who are in possession of the* tract for which he sues, will produce great inconvenience and injury. A- preliminary question is presented, as to whether all tbe defendants will be held responsible for an order or decision of tbe Court, made on tbe motion or at tbe request of one of tbe defendants, which shall be held to be erroneous.

We are of tbe opinion that the responsibility will attach alike to all the defendants, unless it appears that the order or decision was clearly restricted, or would necessarily have an application only to particular defendants or parcels of property. We shall pass upon a few of the numerous points presented by counsel.

It was testified by Stevenson that “it was perfectly understood by Robinson, that the property we purchased from Haraszthy, did not include the Olds property and was not to be included in the deed; that our claim did not touch tbe Olds property.” It is now urged by tbe plaintiffs, tbat tbe evidence should bave been excluded, because it contradicted and tended to limit tbe operation of the deeds in evidence, one of which was executed to, and another by tbe witness. Tbe evidence should bave been excluded had objection been taken on that ground, but no ground of objection was stated.

On cross-examination of the witness, tbe plaintiffs proposed to prove tbat “ Exhibit No. 14 ” was tbe map of a survey, which was made for th$ purpose of a partition of tbe lands purchased by the witness and others, and on the defendants’ objection, tbe evidence was excluded. Tbe evidence was admissible for tbe purpose of contradicting tbe witness.

Tbe plaintiffs requested tbe Court to charge that “ if tbe premises in controversy are witbin tbe boundaries of tbe former pueblo of San Francisco, tben there is no Statute of Limitations which affects this action.” It appears that tbe lands are witbin tbe limits of tbe pueblo; that tbe pueblo bad title; and that tbe city succeeded to tbe title. Tbe plaintiffs’ title commences with Tanfaran’s claim, taken up under tbe statute of this State. Of that claim it need only be said, that tbe claim is void, because tbe lands were not public lands of tbe United States.

Tbe plaintiffs rely mainly on tbe fact that bis grantors, or some of them, received a deed, which, it is claimed, purported to convey tbe lands described in Tanfaran’s claim; and under tbe deed, entered into possession of a part of tbe lands, claiming title to tbe whole; and upon tbe rule of Hicks v. Coleman (25 Cal. 122), that such deed, entry and claim, gave them constructive possession of all tbe lands witbin tbe boundaries described in tbe deed, which were not tben in tbe adverse possession of others.

Without following tbe line of argument of counsel, it is sufficient to say that tbe right or title thus acquired, is not tbe right or title held by tbe pueblo or tbe city, and was not derived from tbe Spanish or Mexican governments or tbe authorities thereof; and that therefore tbe plaintiffs do not come witbin tbe proviso to tbe Sixth

Section of the Statute of Limitations of 1855, nor tbe second proviso to tbe Sixth

Section of the Amendatory Act of 1863. Another question arises on tbe plaintiffs’ instructions which may be noticed here. It is contended that tbe title, presumptively held by tbe person who entered into possession under bis deed, as just mentioned, cannot be lost by abandonment. Tbe position is without foundation. He has no higher right to that portion, of which be has tbe actual possession, than bad bis grantor, and bis grantor could abandon tbe premises, and thus lose all right in them. His constructive possession is of no bigber order, for any purpose than bis actual possession.

His entry under color of title serves to give him the constructive possession of a portion of the premises, but neither the deed nor the entry under it confers upon him the title in fact, in presence of the admission of title in the city, at the time of the entry of bis grantor. The plaintiffs further contend that title accrued to them under the operation of the Yan Ness Ordinance, although they may never have had the actual possession of the premises, as defined in Wolf v. Baldwin, (19 Cal. 306.) It was • held in Davis v. Perley (30 Cal. 630) that this position was untenable.

The possession mentioned in the proviso, is the same as that previously mentioned in the

section — the actual possession. Many instructions were given upon the subject of abandonment; and the plaintiffs complain that “that this giving of three sets of instructions, for three sets of defendants, at the request of three different associations of counsel, must have a very bewildering effect upon the jury.” That would seem to be almost a necessary consequence of a trial in which there are several different sets of .defendants, and it was partly because of that difficulty, that we hold that there ought to be separate trials as to the three distinct parcels of land.

Our opinion on the subject of abandonment, will be sufficiently indicated by noticing one of the instructions, which is as follows: “Ninth — This abandonment is indicated by the intention of the party to abandon — as his not using the land, or appropriating it to any suitable use. If that intention to relinquish [the possession] existed for never so short a time, then the abandonment is complete.

If you should find from the evidence that plaintiffs or their grantors had possession of this triangular piece of land claimed by Donnovan, but subsequently abandoned it, and that it remained so abandoned at the time of Donnovan’s entry, then you will find for defendant Donnovan, Abandonment is not proven by showing an intention to abandon.

To constitute an abandonment there must be a concurrence of tbe act of leaving the premises vacant, so that they may be appropriated by tbe next comer, and tbe intention of not returning. “His not using tbe land or appropriating it to any suitable use ” would not tend in tbe slightest degree to sbow an intention to abandon it.

Tbe intention to relinquish tbe possession may have been entertained, not only for a moment, but during tbe whole-period of bis possession; but if tbe intention was not manifested byleaving tbe possession vacant, without tbe intention of returning, there was no abandonment, Tbe twenty-fourth instruction given-at tbe request of defendants, Southworth and Green, and tbe charge given by tbe Court on tbe return of tbe jury for instructions, are faulty in this respect: The jury were charged that if tbe plaintiffs, and those under whom tbey claim, bad left tbe premises vacant, unimproved, and without attention for more than five years before tbe commencement of tbe action, tbey were authorized to find therefrom tbe fact of abandonment.

Tbey should have been instructed that such fact must be taken into consideration in deciding tbe question of abandonment. Tbe essential fact of intention to abandon, is not necessarily inferable from tbe fact stated. By tbe judgment it is ordered and adjudged that tbe plaintiffs take nothing by this proceeding as against certain defendants; and it is also adjudged that those defendants severally recover from tbe plaintiffs tbe possession of portions of tbe premises specifically described.

Those tracts were in tbe possession of tbe respective defendants, and there is nothing in tbe pleadings- to warrant a judgment, that tbey recover from tbe plaintiffs tbe possession of those several portions of tbe premises, Tbe index to tbe voluminous transcript in this case is a sham. Tbe statement on motion for a new trial comprises about seven eighths of tbe transcript, and upon it all tbe questions in tbe case arise, but if has no index. Judgment and order reversed, and cause remanded for a new trial, without costs, Speagtje, J., expressed no opinion.