THOMAS U. SWEENEY v. JAMES REILLY et al., 42 Cal. 402

By the Court, Temple, J.: The fact that the notice of appeal was not served until two days after it had been filed, is not a valid objection to the appeal. The statute prescribes no time within which this service must be made, except, of course, that it must be served before the undertaking is filed, which must be within five days after the notice has been filed. The action was ejectment, and one of the issues made was whether the plaintiff had abandoned the premises before the entry of the defendants. This defense admitted the plaintiff’s prior possession for the purposes of the defense.

On the trial the defendants offered a certified copy of a statement and an affidavit made by the plaintiff under the provisions of

an Act of the Legislature passed April 20th, 1852, entitled “An Act prescribing the mode of maintaining and defending possessory actions on public lands.” The sworn statement recited that the land described in it was occupied by the affiant, and that he had taken no other claim under that Act. This was offered to show abandonment, and was received in evidence against the exceptions of the plaintiff". The admission of this evidence was certainly erroneous, for the instrument in question could have had no bearing whatever upon the issue of abandonment.

It was undoubtedly proper to show the acts of the plaintiff in removing his improvements from the premises claimed to have been abandoned, and in locating upon and improving a different tract. This, however, would not be sufficient in itself to show abandonment, and it could not be material in any respect to show that he claimed under

an Act of the Legislature which attempted to prescribe what should constitute possession in a particular class of cases. Nor can we see, from the record, that this error did not prejudice the plaintiff. No evidence which is wrongly admitted because of its irrelevance or immateriality, ought to have weight with a jury; but it is sometimes difficult to say that it has not had weight. The jury may have been led to think that plaintiff could not honestly make such an affidavit while he was laying claim to another tract.

Injury will be presumed from error where we cannot see from the record that none has been done. (Spanagel v. Dellinger, 38 Cal. 278.) It was also error to instruct the jury that the defendants, being in possession, plaintiff could not recover, unless he proved an earlier and better possession. The possession need not have been better, as implying a comparison between the acts constituting the prior possession of the plaintiff and the present possession of defendants. The word has no point, unless in reference to such comparison.

It cannot be understood as implying that a prior possession would be a better possession; and if such were the intention of the Judge who presided at the trial, the language failed to express his meaning, and was calculated to mislead the jury. The instruction asked for by the plaintiff) to the effect that after the entry of defendants no neglect or omission of plaintiff, in taking or exercising possession of the land, can be considered as an indication of an abandonment, was properly refused.

It is very true that one cannot abandon land when he has not possession, and also that the mere neglect or omission to assert one’s title to land from which he has been ousted for a period, within the Statute of Limitations, is not evidence of abandonment.

The question of abandonment is to a great extent one of intention, which must be shown from the circumstances of each case; and if the evidence were that the plaintiff' left the premises sued for, and removed his improvements to another tract in the vicinity, and afterwards knew of the entry of the defendants and their claim of title, it might have a bearing upon the intentions of plaintiff with reference to the premises, if he stood by and saw the defendants improving and occupying the land for a long period of years, and asserted no claim.

It would not work an estoppel, or be of itself evidence of abandonment, but it may well be taken into consideration, in connection with other circumstances, to throw light upon the intentions of the plaintiff. Judgment and order reversed, and cause remanded for a new trial.