Brown v. Brackett

45 Cal. 167

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,516
• Status: Published

Opinion

By the Court:

The confirmation upon which the plaintiff relies was of a portion of the Soulajulle Rancho, described in the decree as “ bounded on the east by the land owned by William M. Fuller, and running northward and southwardly the entire distance of William M. Fuller’s west line, and running out therefrom four miles long and two miles wide; bounded on the north by the Laguna de San Antonio, and south by the tract of land called Ricasio.”

The description of the land sued for, as contained in the complaint, is set out by calls and distances—there is no apparent identity between the tract confirmed and the tract sued for, and no attempt was made at the trial to show that the land, as described in the complaint, was included in the decree of confirmation. Even assuming, therefore, that by their answers the defendants admitted themselves in possession of portions of the general tract described in the complaint, the judgment of nonsuit rendered on the ground that no ouster had been proven was correct; for, taking the admissions upon that point in connection with the complaint, and all the evidence offered, it did not in anywise appear that the land in possession of the defendants was a part of the landjconfirmed toVasquez, under whom the plaintiff claimed title. It is indispensable to a recovery in ejectment that it should in some way appear that the defendants were, at the commencement of the suit, in possession of some part of the tract to which the plaintiff establishes his title.

It was claimed in argument, that the confirmation to Vasquez, though in terms for but a portion of the large tract called Soulajulle, was, in effect, an adjudication that the grant to Mesa was a valid grant to the entire tract, including that portion outside as well as that within the tract confirmed to Vasquez, and had the effect to confirm to Mesa and his grantees the entire tract, notwithstanding no claim for the confirmation thereof was ever "presented to the Laud Commission. But this view is wholly inadmissible, and if maintained would contravene the practice uniformly pursued under the Act of March, 1851, and would necessarily reopen most of the questions concerning the boundaries of Mexican grants which it has been the effort of the Government for the last twenty years to settle and definitively determine.

Judgment affirmed.