Mayne v. Jones

1 Cal. Unrep. 296

Opinion

SANDERSON, J.

Ejectment founded on prior possession. The plaintiff recovered, and we are asked to set aside the verdict upon the ground that the testimony fails to make out a prior possession. But we think that the testimony of some of the witnesses on both sides tends to show a substantial inclosure prior to and at the time of the defendant’s entry. It is true that at or about that time two gaps, one on the north and the other on the south line, had been made in the fences for the purpose of constructing the Point Lobos road, and no fences had yet been put along the line of the road; but this circumstance alone should not be allowed to defeat the plaintiff’s possession or deprive him of the benefit of his inclosure if otherwise sufficient, as the reason and purpose of the gaps is fully explained and the plaintiff ought not to be held responsible for an act beyond his control. Upon this evidence the jury may well have found a substantial inclosure, and if so the court would not be justified in setting the verdict aside.

Order affirmed.

We concur: Shafter, J.; Rhodes, J.; Currey, C. J.; Sawyer, J.