(65 Cal. 116)

KIMBALL V. STORMER. (No. 8,701.)

Filed March 21, 1884.

Actual possession of a portion of a tract of land under color of a deed does not amount to a constructive possession of another portion thereof, which is entirely uninclosed. The ouster required to cause the statute of limitations to run must be notorious.

In an action of ejectment, where the court made an attempted finding in favor of the defendant, on the ground that he had acquired title by virtue of the statute of limitations, but failed to find upon the question of plaintiff's original title, held, that as the finding with respect to adverse possession was not justified by the evidence, judgment must be reversed.

In bank.

W. F. Goad and W. C. Belch, for appellant.

A. L. Hart, for respondent.

MCKINSTRY, J. The appeal is by plaintiff from a judgment and order denying a new trial in an action of "ejectment." The complaint is in the usual form; the answer denies the averments of the complaint, and avers that the cause of action is barred by sections 318 and 319 of the Code of Civil Procedure. A jury having been waived, the action was tried by the court. Within 30 days after the cause was submitted for decision the court filed with the clerk a paper writing in words following:

66

"DECISION.

[Superior Court, County of Colusa.]

"Thos. E. Kimball v. E. I. Stormer.

"Under the testimony introduced I am of the opinion that at the time this action was brought the defendant had acquired a title to the premises in controversy by virtue of the provisions of the statute of limitations. Judgment is therefore ordered for the defendant."

[Signed by the Judge.]

Thereupon judgment was entered. [Title of court and cause.] "This cause coming on regularly for trial on the day of —, 1881, plaintiff and defendant appeared by their respective counsel, and the cause was tried by the court without a jury, a jury having been waived by the parties to said action. The evidence of plaintiff and defendant was introduced in due form, and the cause subsequently argued to the court by the respective counsel, and then taken under consideration by the court; and the court having fully considered said cause, and being fully advised as to the law and the evidence, makes and files its written decision in favor of the defendant and against the plaintiff, and orders judgment accordingly. Wherefore," etc.

The Code of Civil Procedure provides: "Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision. In giving the decision, the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly." Sections 632, 633.

From the "decision" filed it is apparent the court below intended to find that defendant had been in adverse possession for more than five years, and therefore, as a conclusion of law, that he was entitled to judgment. Finding thus, the court deemed it unnecessary to find whether the plaintiff did or did not have title prior to the running of the statute. If the finding as to adverse possession had been sufficient, and the evidence had sustained it, we would affirm the judgment, holding that the question whether the plaintiff had or had not title originally was immaterial. But, as we shall see, the evidence does not justify the finding in favor of defendant upon the plea of the statute of limitations. The case is to be treated, therefore, as one in which the court below, upon sufficient evidence, found that the defendant had acquired title by adverse possession, but failed to find whether the plaintiff had title and right of possession independently of the question of adverse possession. We are not prepared to say that the evidence clearly and unmistakably shows the plaintiff had no title to the premises in controversy, and that defendant is the owner of them. We expressly decline to determine that question, however, leaving it to be passed upon by the court below. It has been so often held here that when the court below has failed to find upon any material issue made by the pleadings, the judgment must be reversed, that cases need not be cited as authority on that point.

It is no objection to the reversal of the judgment, for want of finding upon a material issue, that the finding with respect to the statute of limitations is not in form a sufficient finding. If the court, in addition to the finding with respect to the limitation, had found the plaintiff was the owner, etc., or facts from which the ownership of plaintiff conclusively followed, we would, perhaps, reverse the judg ment on the ground that there was no finding such as is required by law upon the fact of adverse possession. But the writing filed by the court below as its "decision," or findings,-which is a very different thing from an opinion,-is always set up here, and constitutes a part of the judgment roll. Code Civil Proc. 670. It is only because the findings, sufficient or insufficient, are sent up as a part of the judgment roll, that we can determine whether a particular finding is or is not sufficient. In one sense, an insufficient finding is not a finding, because it is not determinative of an issue; but in another sense an attempted finding found in the decision, filed as such by the court below, is a finding. It is to be treated as a finding in so far as it enters into the record to be reviewed in this court, and in that it clearly shows that findings were not waived by the parties. As has been held

here, in support of the presumption that the trial court has done its duty, we will (where there are no findings) presume that findings were waived, unless the contrary is made to appear by bill of exceptions. But this presumption cannot have force as against a writing on its face designated the "decision," filed by the court below, clearly intended to be a finding upon a material issue, and showing that the court ordered a judgment in favor of defendant because the evidence proved that one of the pleas of the defendant was true. The court below having attempted to find upon one of the material issues, (the evidence not sustaining the finding,) and having failed to find upon another material issue, the judgment must be reversed.

We return to the question, did the evidence justify the finding in favor of defendant upon the plea of the Code limitation? In considering this question, in the absence of a finding that plaintiff was or was not the owner or entitled to the possession of the demanded premises, or of facts showing such right of possession, we must assume that plaintiff deraigned title from the Jimeno grantees, which is the right to establish which the evidence on the part of the plaintiff was addressed. The action was commenced April 15, 1875. It is admitted that the demanded premises are entirely within the limits of the Jimeno grant. There is no evidence that defendant ever had actual possession of the Jimeno grant, or of any part of the lands claimed by plaintiff, until the year 1872. Prior to that year the land in controversy was an open common, on which ranged the stock of defendant and other persons. There was evidence tending to prove that on divers occasions defendant had cut up the dead timber or down trees and removed the wood from the land. Such fugitive acts did not of themselves constitute an adverse possession.

It is claimed, however, that defendant had been in adverse possession of the land in controversy for more than the statutory period, because in the year 1868 he had received from a stranger a deed purporting to convey a tract "known as the Mizner tract," which comprehended within its bounds land lying without the Jimeno grant, and also land lying within the Jimeno grant, -the latter including the premises here demanded, and had been in actual possession of the portion of the land without the Jimeno grant for more than five years when this action was commenced. The question presented, therefore, is: Can a defendant who claims under color of title a larger tract, which includes the land to which plaintiff has shown title in fee, establish an adverse possession as to plaintiff's land (which has remained vacant and unoccupied) by proving an actual possession of a portion of the larger tract,—such possession not extending to any of the land claimed by plaintiff ?

The fourth subdivision of section 323 of the Code of Civil Procedure provides: "Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom

of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated." It is apparent that, for a person to acquire a constructive adverse possession of land, he must actually oust the true owner of some part of his land. The owner is not disseized of his land merely because one stranger may pretend to convey it to another, and he is not driven to any assertion of his legal rights because one with or without title shall occupy lands not his. It is but necessary to state the facts to demonstrate that the fourth subdivision of section 323 does not apply to them.

Even, however, if the acceptance of a deed of the "Mizner tract" by defendant, and his actual possession of a part of that tract, could be held to create a presumption that he asserted an absolute right to the whole, "exclusive of any other right," such presumption would, in the case before us, be overcome by defendant's own testimony. As a witness he stated that prior to 1872 he had fenced only the portion of the land claimed by him lying to the west of the Jimeno grant, and west of the land claimed by plaintiff, "knowing there was a dispute as to the title of this land now in controversy;" that he "had not thoroughly understood how it was,-he didn't want to go too far until he would find out ;" and that in 1872 he inclosed the land claimed by plaintiff, "when he found out that Col. Hager (alleged agent of plaintiff) never had any possession." These declarations of defendant prove he did not assert an absolute and unqualified right to the land in controversy until, at least, the year 1872.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MORRISON, C. J.

Ross, J.; SHARPSTEIN, J.; THORNTON, J.; MYRICK, J.;

(65 Cal. 110)

MANUEL v. ESCOLLE. (No. 7,915.)

Filed March 27, 1884.

In an action by an administrator of a deceased partner to obtain an accounting and settlement of the partnership affairs, amounts drawn from the firm by the deceased partner may be proved and allowed as an offset, although such amounts have not been presented to and allowed by the administrator and judge in probate.

Department 2.

Gregory & Shipley, for appellant.

S. F. Geil, for respondent.

BY THE COURT. The defendant and plaintiff's intestate were partners, and the complaint is filed to obtain an accounting and settle

ment of the partnership affairs; the plaintiff alleging that there is due from defendant the sum of $3,192.22. An accounting was had, and the court found a balance of $265.90 due plaintiff, for which judgment was rendered. In arriving at this conclusion the court heard evidence regarding sums drawn from the partnership by the plaintiff's intestate during his life-time, and charged the plaintiff, as representative, therewith. Plaintiff claims this to be error, and claims that defendant, in order to have the benefit of the allowance, should have presented to the administratrix and judge, for allowance and approval in course of administration, the amount which he claimed as an allowance in this action. We are of opinion that the allowance and approval by the administratrix and judge were not prerequisites to the right of the defendant to have the accounts adjusted, and the amount claimed allowed as an offset in the accounting. Section 1585, Code Civil Proc., seems to be clear and explicit as to the powers and duties of a surviving partner.

Judgment and order affirmed.

(2 Cal. Unrep. 287)

PEOPLE ex rel. DOUGHERTY v. BOARD OF ELECTION COM'Rs, Etc. (No. 9,310.)

Filed March 17, 1884.

The office of "supervisor, first board," does not exist in the city and county of San Francisco.

See Desmond v. Dunn, 55 Cal. 248.

In bank.

John J. Coffey, for appellant.

Wm. Craig, for respondent.

MYRICK, J. The petitioner, at a general election held in the city and county of San Francisco, November 7, 1882, received votes for supervisor, first board, and he claims that under the clause of section 7, art. 11, of the constitution of 1879, which reads as follows: "In consolidated city and county governments of more than one hundred thousand population, there shall be two boards of supervisors or houses of legislation," etc.,-he was elected a member of the first board of supervisors, and is entitled to a certificate of election; that the clause above quoted is self-executing, and requires no legislation. The court below held that the office for which the votes were cast does not exist in said city and county. This court had occasion to consider this question in Desmond v. Dunn, 55 Cal., and its views thereon