PETER DONAHUE v. J. GALLAVAN et al., 43 Cal. 573

By the Court, Rhodes, J.: The premises in controversy form a part of Mission Addition block number twenty-five, in the City of San Francisco. In 1850 or 1851 Clark, Wilson & Stock entered upon a tract of land composed of blocks twenty-five and twenty-eight, and small portions of adjacent blocks and the intervening streets, which were not then laid out, and reduced some portions thereof to their actual possession. Wilson & Stock conveyed the tract to Dehon, who entered under the deed into the actual possession of a part of the tract. The plaintiff claims under that deed.

It also appears that the plaintiff, by his servants, was in the possession of certain houses situated on the premises in controversy, at the time of the entry of the defendants. The defendants moved for a nonsuit on the ground that the plaintiff had not shown such possession as would give him title under the Van Eess Ordinance, and that he had not shown such prior possession as would entitle him to recover, and the motion was granted on both grounds. The entry of Dehon under the deed of Wilson & Stock had the effect to give him the constructive possession of the whole tract. (Hicks v.

Coleman, 25 Cal. 122; Ayres v. Bensley, 32 Cal. 620.) That evidence, together with the fact that the title of Dehon had vested in the plaintiff, was sufficient to go to the jury, upon the issue of prior possession. We see nothing in the facts of this case, to prevent the application of the rule in those cases, to the tract of land described in that deed. The occupation of the houses by the servants of the plaintiff, as already mentioned, was also competent evidence on the question of prior possession, and should have been submitted to the jury.

It is unnecessary, at this stage of the case, to express any opinion as to whether there was such an occupation of the premises as to entitle the occupant to the benefits of the Van Hess Ordinance. * The defendants insist, that as these questions were presented on the motion for a new trial, they cannot be considered, because there was not a sufficient specification of the grounds of the motion within the requirements of

section one hundred and ninety-five of the Practice Act. This objection is untenable. The question presented on a motion for a nonsuit is a question of law, and in the statement on new trial the decision of the motion should be specified as an error of law. Were this not the correct practice, the party complaining of the granting of a nonsuit would be compelled, after stating the evidence, to restate it in his specifications, in order to show that it was insufficient to justify the decision—or in other words, that it was sufficient to make a prima facie case to go to the jury. Judgment and order reversed and case remanded for a new trial. Mr. Justice Crockett did not express an opinion.