No. 1,415.

#### EGBERT JUDSON, and GILBERT J. PLACE, Appellants, *v.*PAUL MALLOY, JOHN DOE SOUTHWORTH, DANIEL E. GREEN *et al.,*Respondents.

Pbactice. — Sepabatb teials -wheee these abe mans dependants. — In an action for recovery of land, 'brought against many defendants bolding separate portions thereof, and having no common interest, and who rely upon different sources of title; it is the duty of the Court, on the motion of defendants, to order separate trials. It is likewise the duty of the Court, without any motion therefor to order separate trials, whenever, to the satisfaction of the Court it a2ipears that the parcels of land in controversy are separate and distinct, and the several classes of defendants rely on different sources of title.

Ekeoneous Ruling. — Responsibility consequent upon. — The responsibility of an erroneous order or decision, made on motion, or at the request of one of many defendants, will attach alike to all ths defendants, unless it appears that the order or decision was clearly restricted, or would necessarily apply only to particular defendants or parcels of property.

*300Evidence. — Oeal Oontbadiction on Deed. — The testimony of a -witness which tends to contradict or limit the operation of deeds in evidence, one of which was executed to and another by the witness, should he excluded, when objected to on that ground.

Idem — Oontbadiction oe Witness on ckoss-examination. — On cross-examination, the map’ of a survey made for the purpose of a partition of lands purchased by a witness and others, is admissible in evidence, for the purpose of contradicting the witness.

Pueblo op San Fbancisco. — Adveese Claim to Lands. — A claim to lands within the boundaries of the former Pueblo of San Francisco, taken up under the statutes of this State, is void.

Idem. — Statute oe Limitations. — The holder of a title derived from such a claim, though in possession of a part of the lands, and claiming title to the whole, upon the rule of *Sides*v. *Goleman,*25 Cal. 122, does not come within the proviso to the Sixth Section of the Statute of Limitations of 1855, nor the second proviso to the sixth section of the Amendatory Act of 1863.

Van Ness Oedinance. — Possession tjndee. — A title under the Van Ness Ordinance did not accrue unless there was an actual possession of the premises.

Abandonment. — Loss oe Peesumptive Title by. — A title presumptively held by a person who entered under a deed into the actual possession of land within the boundaries of the foimer Pueblo of San Francisco, and to which the City held the title as the successor to the Pueblo, at the time of the entry of the grantor in the deed, may be lost by abandonment.

Idem. — To constitute an abandonment, thero must be a concurrence of the act of leaving the premises vacant, so that they may be appropriated by the next comer, and the intention of not returning.

Idem. — Intention.—The intention to abandon is not necessarily inferable from the fact that the premises have been left vacant, unimproved and without attention for more than five years before the commencement of the action, but such fact must be taken into consideration in deciding the question of abandonment.

Judgment. — Ebboneous, when bob possession bob dependants aleeady in possession. — A judgment that the plaintiffs take nothing as against certain defendants, and that those defendants recover from the plaintiffs the possession of portions of the premises specially described, when those tracts were, at the time, in the possession of the respective defendants, is in that respect erroneous.

Appeal from the District Court of the Fourth District, City and County of San Francisco.

This was an action of ejectment to recover certain lands in San Francisco, from many defendants.

The various defences set out were — 1. General denial. 2. Plaintiff not in possession within five years. 3. Title. *3014. Adverse possession of five years. 5. Title in some third person — and in landlord. 6. Abandonment. 7. Title in the City. 8. Occupancy under color of title.

Judgment was rendered for some of the defendants, that they recover of plaintiff part of the lands, the same being already in possession of the defendants; the suit was dismissed as to some o’f them, and nonsuit entered as to others.

Plaintiffs moved for a new trial, and on denial thereof they appealed from the judgment, and the order denying the motion for a new trial.

The claim of plaintiffs rested upon what is Imown as the Toribio Tanfaran title, who, it was claimed, acquired the same by occupancy, declaration, and improvements.

The other facts are stated in the opinion.

*B. 8. Brooks,*for Appellants.

A witness may refresh his memory by any book or paper. *(Doe*v. *Perkins,*3 Tewk. 749].

It is of no consequence who made the paper. fCowen & Hill’s Notes to Phil, on Ev. Note 377 to page 412.)

Whenever one party buys land, and takes the conveyance in the name of another, the law implies and raises the trust. The fact of such purchase must be, and always is proven by parol. *(Osborne*v. *Endicott,*6 Cal. 153; *Pierce*v. *Robinson,*13 Cal. 125; *People*v. *Irwin,*14 Cal. 435; *Johnson*v. *Sherman,*15 Cal. 291; *Russ*v. *Mebius,*16 Cal. 355.)

The testimony of Stevenson, stands simply as testimony given by a grantor to limit the operation of his own deed, and parol testimony to limit the deeds of others.

“Exhibit 14” was shown to Stevenson on the stand, to prove by him that it was the map of the survey which he and those interested with him had made, for the purpose of making a partition of the property purchased. This evidence was competent on cross-examination, as Stevenson had testified as to the extent of his purchase, and what he and his associates intended to purchase. The *302map lie bad. bad made himself immediately after tbe purchase, and was therefore competent to contradict him,

A person who enters upon land under a deed duly executed, acknowledged and recorded, becomes, if bis grantor was not tbe true owner, a disseizor, and as such, is seized of an estate in tbe land in fee simple absolute, de-feasible only by tbe entry of tbe true owner. This estate can only pass by deed, and, consequently, it cannot pass by abandonment.'

This position is sustained by -the following authorities, . from which it, as a conclusion, is drawn. (1 Hillard on Beal Prop. Cb. *2; Taylor*v. *Horde,*1 Burr. 110; *Putnam*v. *Fisher,*34 Maine, 172; *Moody*v. *Fleming,*4 Geo. 115; *Made-lot*v. *Dubreuil,*9 Miss. 477: *Noyes*v. *Dyer, 25*Maine, 468; *Beading*y. *Baiusteine, 2*La Bayne, 829, k. 422; *Higby*y. *Bice, 5*Mass. 352; *Wordy. Fuller,*15 Pick. 189; *Warren*v. *Ghilds,*11 Mars. 225; *Goodwin*v. *Hubbard,*15 Id. 214; *Wells*y. *Prince,*4 Id. 64; *Williams*y. *Woodward,*7 Wen. 255; *Blethen*y. *Divinel,*34 Maine, 135; *Bolster*y. *Cushman,*Id. 429; *Flagg*y. *Mann, 2*Sumner, 525.)

What has been said by this Court, would seem to intimate an opinion in accordance with tbe above conclusion. *(Hides*v. *Coleman,*25 Cal 131; *Birdv. Lisbross,*9 Id. 7.)

Our Statute of Limitations does not alter tbe common law, that be who is in possession without deed, *“possessio pedis,” “*bolding by bow and spear,7’ has no estate, but a naked possession, while be who enters under deed from such person, becomes seized in fee of an estate by disseizin; and as a necessary result, tbe one can abandon tbe possession, and tbe other can only pass bis estate by deed.

If tbe premises in controversy are within tbe boundaries of tbe former Pueblo of San Francisco, then there is no Statute of Limitations which affects this action. See *Hubbard*y. *Barry,*(21 Cal. 324) that tbe presumption of title arises from possession. What title in this case ? Clearly tbe Pueblo title.

Tbe distinction between settlers on public lands and settlers on private lands, as made in tbe case last cited, *303makes no difference, because whether plaintiff has a grant in fee, or is a tenant at will or sufferance, he equally claims under the Pueblo. *(Bird*y. *Bistros, supra).*

There is no Statute of Limitations, in force in this State, which can affect the right of the plaintiff to recover in this action. *(Billinas*v. *Harvey,*6 Cal. 383; *Clarice*v. *Huber,*25 Cal. 596).

As to the Olds tract the question was determined in *Keane*v. *Canovan,*(21 Cal. 304).

Plaintiff’s title, though originating in possession, was not' capable of abandonment as we have already shown. *(Ferris*y. *Coover,*10 Cal. 631; *Stephens*v. *Mansfield,*11 Id. 365; *Richardson*v. *McNulty,*24 Id. 344.)

Abandonment must consist of voluntarily giving up a thing, by one having the intention to abandon it. Intention is of the essence of abandonment. In the legal sense abandonment has a peculiar and technical meaning. The fact of non-user, or the absence of appropriation to some suitable use, will not indicate any intention to abandon as a legal conclusion. *(Miller*v. *Cresson, 5 Watts & Serg.*284). It is not to be presumed from lapse of time. *(Patridge*v. *McKinney,*10 Cal. 183; *Crandalls. Woods,*8 Cal. 344; *Bird*v. *Lisbros,*9 Cal. 1; *Baiorence*v. *Fulton,*19 Cal. 691; *Richardson*v. *McNulty et al.,*24 Cal. 345; *St. John*v. *Kidd,*26 Cal. 272).

*J. W. Winans,*for [Respondents Southworth- and Green.

We primarily rest our cause, and ground our argument, upon the soundness of the instruction given in the -Court below on the question of abandonment.

Plaintiffs, not having title, could abandon, even though they held possession under a deed or deeds. The doctrine of feoffment is abandoned long since. *(School District*v. *Bensom,*31 Maine, 384, 485. 4 Kent’s Com. p. 482 to 490; *Stevens*v. *Mansfield,*11 Cal. 363; *Keane*v. *Canovan,*21 Id. 289; *Baiorence*v. *Fulton,*19 Id. 683; *Corning*v. *Coidd,*16 Wend. 543; *Holmes*v. *R. R.*8 Am. Law Peg. 716, 724; *Davis*v. *Reiley,*30 Cal. 634-6; *Roberts*v. *Unger,*30 Id. 676; *304*Gluckauf*v. *Beecl,.*22 Id. 469; *Bichardson*v. *McNulty,*24 Id. 348; *Whitney*v. *Wright,*15 Wend. 172-178; *Jackson*v. *Walker,*7 Cowen, 637. *et seq; Jones*v. *Merrimack. B. L. Go.*11 Foster N. H. 381, 384; *Batcher*y. *S'hired,*2 Williams 28 Verm. 384.)

The analogy existing between the time prescribed by the Statute of Limitations, and that from the lapse of which an abandonment may be presumed, is admitted by our Courts as well as those of other States. *(Benihinger*y. *Hutchinson, 1*Watts. 46: *Gregg*y. *Blachnore,*10 Watts. 192; *Green*y. Covillaud, 10 Cal. 324, 331; *Pearis*v. *Covillaud,*6 Id. 621; *Broion*v. *Covillaud,*6 Id. 572; Frenchv. *Braintree Mf’g Co.,*23 Pick 216).

Concerning the question of possession, see *Plume v. Seward,*(4 Cal. 96); *Laiorence*v. *Fulton, (supra); Wolf*y. *Baldwin,*(19 Id. 314); *Woodworth*v. *Fulton,*(1 Id. 380); *BicarJy. Williams,*(7 Wheaton, 105); *Baldwin*y. *Simpson,*(12 Cal. 560); *Corpellv.*Cain,.(16 Id. 572); *Whiter. Moses,*(21 Id. 42); *Hestres*v. *Brannan,*(21 Id. 423); *Davis*y. *Perley,*(30Id. 630); *Border. Bollins,*(30 Id. 408); *Polaclcv. McGrath,*(32 Id. 15); *Jackson v. Halsted,*(5 Cowen, 220); *Jackson*v. *Schomnalcer,*(2 Johns. 230); *Livingston y. Peru Iron Co.*(9 Wend. 520); *Jackson*v. *Porter,*(1 Paine, 457).

*Daniel Bogers,*for Respondents.

Constructive possession is to date not from the date or delivery of a deed, but from the time of actual possession and inclosure. *(Hicks*v. *Coleman,*25 Cal: 122; *Ayres*v. *Bensley,*32 Id. 620),

Constructive possession is all that at the best plaintiffs have shown, and that is insufficient to pass title under the Van Ness ordinance. *(Davis*v. *Perley,*30 Cal. 630).

The possession of the Olds party comes within the case of *Wolf*v. *Baldwin*(19 Cal. 306); *HaiolcY. Seuseman,*(6 Serg and E. 21); for it was actual, continued, visible, notorious, distinct and hostile,

*B. S. Brooks,*for Appellants, in reply.

*305Every error in the trial is *prima facie*an injury, and it rests with the other party to show that no hurt was done by the error. *{Jackson*v. *Feather Bvrer and O. W. Oo.*14 Cal. 25; *Oarpentier*v. *Williamson,*25 Cal. 167). Erroneous instructions bind all the defendants, and the-effect is not limited to the instructions asked by them severally. The earliest cases which are directly in point here, touching the question of abandonment, are found in Pennsylvania, but all relate to cases of pre-emption either under the State or United States laws. (1 Xeates, 289; Id. 193; 2 Id. 88; Id. 318; 2 S. *&*E. 378; 5 Id. 215; 2 Watts, 409; 30 Penn. S. & R. 403 ; 43 Id. 427). In all these cases the occupant had no legal right, but a mere equity, which arises out of occupancy, is inseparable from it, and ceases with it. So also in Minnesota in *Weisberqer*v. *lenney,*(8 Min. 436).

The Spanish law of abandonment was in force in Missouri until the common law was introduced in 1816. *{Landes*v. *Perkins,*12 Miss. 238. See also *Tucker*v. *Phillips,*2 Met. (Ky.) 416; *Dikes*v. *Miller,*24 Texas, 417.)

“The doctrine of abandonment by non-user, applies only to an easement, and not to the title to the fee.” *{Bobie*v. *Sedgwick,*35 Barb. S. C. N. T. 319; *Doe*v. *Butler,*3 Wen. 149; *Arnold*v. *Stevens,*24 Pick. 113; *White*v. *Qrawford,*10 Mass. 183.)

None can acquire title in the City of San Francisco, under the Statute of Limitations, of land within the Pueblo domain. (See the opinion of Judge Field in *McCracken*v. *The City of San Francisco,*16 Cal. 636).

It is not competent to show by parol that land described in a deed was not intended to be conveyed by it, except in a suit to reform the deed. *{Donohue*v. *McNulty et. al.,*24 Cal. 417).

In an action at law it is admissible to show that a deed absolute on its face is a conveyance in trust, and that the party who was in actual possession and occupation was the equitable owner and the *cestui que trust*of him who held the *306legal title, *(Johnson*y. *Sherman,*15 Cal. 291; *Pierce*y. *Robinson, supra; Cunningham*y. *Haiolcins,*27 Cal. 606).

The whole doctrine of abandonment goes upon the idea that the possession continues until there is an intention to relinquish it accompanying the dereliction of possession. *(Sunol*y. *Hepburn,*1 Cal.; *Lessee of Bayard*y. *Colfax et al.,*4 Wash. C. C. B. 41; *Lessees*y. *Payne,*4 Wend. 429; *Wal-rod*y. *Ball,*9 Barb. 271; *McMahon*v. *Harrison,*6 N. Y. 2 Seld. 443; *Sleeper*v. *Van Meddlesioorlh,*4 Den. 431; *Flanders*v. *Merritt,*3 Barb. 201; *Nixon*y. *Palmer,*10 Barb. 175.

Bhodes, C. J.,

delivéred the opinion of the Court, Wallace, J., Cbockett, J., and Temple, J., concurring:

The plaintiffs, in their statement on motion for a new trial, assigned very many — more than forty — grounds of error. This was caused, doubtless, by the fact that the action was brought for the recovery of a large tract of land, or rather a number of tracts, which, in the aggregate, constitute a large body of land, and against many defendants who were holding separate portions of the land, without any common interest. After the action was dismissed as to many of the defendants, a trial was had as to the remaining defendants, and it appears that the land in controversy between the plaintiff and those defendants, consists of three distinct parcels, which are known as the Olds tract, the Donnovan tract, and the Southworth and Green tract, and that the defendants in possession of each tract relied upon a different source of title. The action, in its present form, is practically interminable. It is. scarcely possible, and it is certainly not probable, that the several- counsel for the different parties of defendants should agree as to the management of the defence, or in respect to the questions of law arising at the trial. They may, and probably will, disagree as to the grounds of objection to the plaintiff’s evidence, and as to the evidence to be adduced on their behalf, and as to the charges proposed to be given to the jury. Under such circumstances, error is almost inevitable. There should have been separate trials between the *307plaintiffs, and tbe defendants in possession of eacb of tbe three tracts above mentioned; and bad tbe defendants moved for separate trials it would bave been tbe duty of tbe Court to bave so ordered. And we are also of tbe opinion tbat it would bave been proper for tbe Court, without any motion therefor, to bave ordered separate trials, when it became apparent tbat tbe several parcels of land in' controversy were separate and distinct, and tbat tbe several classes of defendants relied upon different sources of title. If separate trials in such cases be not allowed, tbe rule permitting tbe plaintiff to join, as defendants, all who are in possession of the* tract for which he sues, will produce great inconvenience and injury.

A- preliminary question is presented, as to whether all tbe defendants will be held responsible for an order or decision of tbe Court, made on tbe motion or at tbe request of one of tbe defendants, which shall be held to be erroneous. We are of tbe opinion that the responsibility will attach alike to all the defendants, unless it appears that the order or decision was clearly restricted, or would necessarily have an application only to particular defendants or parcels of property.

We shall pass upon a few of the numerous points presented by counsel. It was testified by Stevenson that “it was perfectly understood by Robinson, that the property we purchased from Haraszthy, did not include the Olds property and was not to be included in the deed; that our claim did not touch tbe Olds property.” It is now urged by tbe plaintiffs, tbat tbe evidence should bave been excluded, because it contradicted and tended to limit tbe operation of the deeds in evidence, one of which was executed to, and another by tbe witness. Tbe evidence should bave been excluded had objection been taken on that ground, but no ground of objection was stated. On cross-examination of the witness, tbe plaintiffs proposed to prove tbat “ Exhibit No. 14 ” was tbe map of a survey, which was made for th$ purpose of a partition of tbe lands purchased by the witness and others, and on the defend*308ants’ objection, tbe evidence was excluded. Tbe evidence was admissible for tbe purpose of contradicting tbe witness.

Tbe plaintiffs requested tbe Court to charge that “ if tbe premises in controversy are witbin tbe boundaries of tbe former pueblo of San Francisco, tben there is no Statute of Limitations which affects this action.” It appears that tbe lands are witbin tbe limits of tbe pueblo; that tbe pueblo bad title; and that tbe city succeeded to tbe title. Tbe plaintiffs’ title commences with Tanfaran’s claim, taken up under tbe statute of this State. Of that claim it need only be said, that tbe claim is void, because tbe lands were not public lands of tbe United States. Tbe plaintiffs rely mainly on tbe fact that bis grantors, or some of them, received a deed, which, it is claimed, purported to convey tbe lands described in Tanfaran’s claim; and under tbe deed, entered into possession of a part of tbe lands, claiming title to tbe whole; and upon tbe rule of *Hicks*v. *Coleman*(25 Cal. 122), that such deed, entry and claim, gave them constructive possession of all tbe lands witbin tbe boundaries described in tbe deed, which were not tben in tbe adverse possession of others. Without following tbe line of argument of counsel, it is sufficient to say that tbe right or title thus acquired, is not tbe right or title held by tbe pueblo or tbe city, and was not derived from tbe Spanish or Mexican governments or tbe authorities thereof; and that therefore tbe plaintiffs do not come witbin tbe proviso to tbe Sixth Section of the Statute of Limitations of 1855, nor tbe second proviso to tbe Sixth Section of the Amendatory Act of 1863.

Another question arises on tbe plaintiffs’ instructions which may be noticed here. It is contended that tbe title, presumptively held by tbe person who entered into possession under bis deed, as just mentioned, cannot be lost by abandonment. Tbe position is without foundation. He has no higher right to that portion, of which be has tbe actual possession, than bad bis grantor, and bis grantor could abandon tbe premises, and thus lose all right in them. *309His constructive possession is of no bigber order, for any purpose than bis actual possession. His entry under color of title serves to give him the constructive possession of a portion of the premises, but neither the deed nor the entry under it confers upon him the title in fact, in presence of the admission of title in the city, at the time of the entry of bis grantor.

The plaintiffs further contend that title accrued to them under the operation of the Yan Ness Ordinance, although they may never have had the actual possession of the premises, as defined in *Wolf*v. *Baldwin,*(19 Cal. 306.) It was • held in *Davis*v. *Perley*(30 Cal. 630) that this position was untenable. The possession mentioned in the proviso, is the same as that previously mentioned in the section — the actual possession.

Many instructions were given upon the subject of abandonment; and the plaintiffs complain that “that this giving of three sets of instructions, for three sets of defendants, at the request of three different associations of counsel, must have a very bewildering effect upon the jury.” That would seem to be almost a necessary consequence of a trial in which there are several different sets of .defendants, and it was partly because of that difficulty, that we hold that there ought to be separate trials as to the three distinct parcels of land. Our opinion on the subject of abandonment, will be sufficiently indicated by noticing one of the instructions, which is as follows: “Ninth — This abandonment is indicated by the intention of the party to abandon — as his not using the land, or appropriating it to any suitable use. If that intention to relinquish [the possession] existed for never so short a time, then the abandonment is complete. If you should find from the evidence that plaintiffs or their grantors had possession of this triangular piece of land claimed by Donnovan, but subsequently abandoned it, and that it remained so abandoned at the time of Donnovan’s entry, then you will find for defendant Donnovan,

Abandonment is not proven by showing an intention to abandon. To constitute an abandonment there must be a *310concurrence of tbe act of leaving the premises vacant, so that they may be appropriated by tbe next comer, and tbe intention of not returning. “His not using tbe land or appropriating it to any suitable use ” would not tend in tbe slightest degree to sbow an intention to abandon it. Tbe intention to relinquish tbe possession may have been entertained, not only for a moment, but during tbe whole-period of bis possession; but if tbe intention was not manifested byleaving tbe possession vacant, without tbe intention of returning, there was no abandonment,

Tbe twenty-fourth instruction given-at tbe request of defendants, Southworth and Green, and tbe charge given by tbe Court on tbe return of tbe jury for instructions, are faulty in this respect: The jury were charged that if tbe plaintiffs, and those under whom tbey claim, bad left tbe premises vacant, unimproved, and without attention for more than five years before tbe commencement of tbe action, tbey were authorized to find therefrom tbe fact of abandonment. Tbey should have been instructed that such fact must be taken into consideration in deciding tbe question of abandonment. Tbe essential fact of intention to abandon, is not necessarily inferable from tbe fact stated.

By tbe judgment it is ordered and adjudged that tbe plaintiffs take nothing by this proceeding as against certain defendants; and it is also adjudged that those defendants severally recover from tbe plaintiffs tbe possession of portions of tbe premises specifically described. Those tracts were in tbe possession of tbe respective defendants, and there is nothing in tbe pleadings- to warrant a judgment, that tbey recover from tbe plaintiffs tbe possession of those several portions of tbe premises,

Tbe index to tbe voluminous transcript in this case is a sham. Tbe statement on motion for a new trial comprises about seven eighths of tbe transcript, and upon it all tbe questions in tbe case arise, but if has no index.

Judgment and order reversed, and cause remanded for a new trial, without costs,

Speagtje, J., expressed no opinion.