Sepulveda v. Sepulveda

Wallace, J.,

delivered the opinion of the Court:

This was an action brought by the appellant under the provisions of Section 254 of the Practice Act, for the purpose of determining an adverse claim, set up by the respondents, to certain real estate, alleged to be in possession of the appellant, and whereof she claimed to be seized in fee. At the trial, upon motion of the respondents, a judgment of non-suit was entered against her, and from that judgment she has taken this appeal.

The motion was based upon four several grounds. The first was, that it did not appear that the appellant had such a possession of the premises as would enable her to maintain the action. The others presented questions of the construction and effect of certain deeds of conveyance, running to the appellant, and which she had read in evidence to establish her title to the land in controversy.

We think that the case must turn wholly upon the sufficiency of the first ground of nonsuit urged, because, if the fact of possession in the appellant was not proven, then the nonsuit was properly granted, even though it should appear that she had the title in fee and the right to immediate possession. (Lyle v. Rollins, 25 Cal. 437.) And, upon the other hand, if the requisite possession was shown in her, she should not have been nonsuited, even if she had not attempted a deraignment of title to herself, or, attempting it, had failed to establish it. For it is not pretended that the effect of the deeds read in evidence was to show any title in the respondents, and, until their title was in some way made to appear, the appellant might rest safely upon the mere fact of her possession of the lands and the presumptions arising therefrom in her favor.

We proceed, therefore, to consider the character of possession established in the appellant by the proof. It appears that the premises in controversy are not inclosed nor cultivated. It is true that the sheep and horses of the appellant graze upon this land; not, however, under the control of herdsmen, but only roaming at large, together with the stock of other persons, over the whole of the rancho San Vicente, of which the premises in controversy are a portion. We think that these facts do not show such a possession in the appellant as is required by the statute for the purpose of maintaining this action. That possession should be a pedis possessio—an actual occupation by herself or tenant, a subjection of the land to her will and control to the exclusion of all other persons—such a possession as would enable her, without the aid of a deraignment of paper title, to maintain an action to eject a mere intruder thereon. We do not mean to be understood as holding now, that where a, pedis possessio of a portion of an entire tract of land is established in a party, he might not, in such an action as this, resort to the title deeds for the purpose of extending that possession to the outer boundaries of the tract as against the defendant, where no adverse possession in any part of the entire tract appeared.

If, however, such adverse possession to a part of the land should be shown in a third person, then the suit would be considered as brought to determine the adverse claim of the defendant, only, to the land remaining in possession of the plaintiff, as was held by this Court in Curtis v. Sutter (15 Cal. 264.)

We think that the appellant did not have such a possession of the premises as, under the provisions of the statute, and the construction it has uniformly received in this Court, entitled her to maintain this action, and the judgment of the Court below is, therefore, affirmed.