Carder v. Minturn

28 Cal. 99

• Court: California Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

By the Court,

Shafter, J.

Ejectment for about three acres of land situate in the City of Petaluma. The answers contain a general denial and set up the Statute of Limitations. The trial was by the Court— finding and judgment for the defendants. The plaintiff moved for a new trial—the motion was denied and the appeal is from the order of denial and from the judgment.

The plaintiff, to prove his title to the premises in controversy, gave in evidence a patent thereof issued by the State to N. L. Thompson, dated September 6th, 1860, granting the lands as swamp and overflowed. The evidence which the defendants were permitted to introduce to the effect that the larger part of the lands were dry and fit for cultivation, was improperly admitted, inasmuch as the defendants neither brought nor oífered to bring themselves into relations either ’with the State or the United States.

The point is so well settled as to require no discussion. (Doll v. Meador, 16 Cal. 295; Terry v. Megerle, 24 Cal. 610; People v. Stratton, 25 Cal. 242; Page v. Hobbs et al., 27 Cal.483.)

But it is insisted for the respondents th^t the plaintiff abandoned his motion for a new trial by refusing to argue it in the Court below. This point is not well taken. The statement sets forth specifically the grounds of the motion—the motion was duly made and submitted—and this includes everything essential to a prosecution of the proceeding.

The objection urged by the respondents, that the lands covered by the patent are within the incorporated City of Petaluma, is of no avail, for the reason that the fact is not apparent on the face of the patent, nor are the respondents in a position to bring it forward by averment.

As to the defense of the Statute of Limitations, there was no evidence in the case tending to sustain it.

Judgment reversed and new trial ordered.