The record-union., 1898-11-05
STATUTE OF LIMITATIONS.
HOW THE STATUTE OF 1878
HAS AFFECTED IT.
interesting Decision of Judge
Hughes in the Ochsner-Nus-
baum Case.

A decision of interest in relation 10
the present status Of the statute Oh
limitations was rendered yesterday py
Judge Hughes in the case OF NJ
Ochsner against Lucretia j. Nusbaulh'
The decision is as follows:
This is an action in ejectment. Ihe
plaintiff claims to own the east IS feel
and inches of lot 6 in the block pc
tween G and D and Ninth and Ienth
streets of the city Of Sacramento. me
defendant claims to own tract or iailu
in the same block, described as com
mencing at the northeast corner Oh lol
b in said block, running thence s0uth-
erly along the line of Tenth street
10.59 feet; thence westerly at right
angles SIS feet, to an old fence; thence
nOrtherly 10.59 feet along said fence
and along the west side of barn;
thence easterly along the south line or
the alley, which intersects said DOCK
SS.S feet to the place of beginning.
That is to say, there is a strip OF lana
SS feet wide by 7039 feet in length
lying between the lands of the plain
tiff and defendant, which both parties
claim to own. According to the 'Bas-
sett survey of Sacramento City, which
is generally accepted as the most salts
factory survey of said city, the strip
of land in controversy is a part of said
lot g. and the record title thereto stands
in the plaintiff. For the purposes OF
this action we may treat the Bassett
survey as being the correct official sur
vey of the city. The defendant con-
tends that she and her predecessors in
interest have possessed said strip of
land adversely for thirty years last
past, and that the plaintiff has there
by lost his title thereto and that she,
the defendant, has acquired ownership
of the same.
Before dispOSing of this contention 1t
is necessary to pass upon a motion
made by plaintiff for permission to
amend his complaint by adding as
defendant one A. B. c. Nusbaum. the
husband of the defendant, Lucretia j.
Nusbaum. This motion was not made
until after the case was tried and the
defendant had served her final brief,
the case having been argued upon
briefs Under the provisions of Sec
ton 3T0 of the Code of Civil Procedure
when a married woman is sued, her
husband must also be made a party
defendant, except in suits between the
husband and wife. or when they are
living separate and apart In the case
at bar the defendant has at all times
mentioned been living with her hus-
band. There is, therefore, fatal de-
feet of parties defendant by reason of
the non -jOinder of A. 3. G. Nusbaum
as a party defendant. Although plain
tiff's motion is made after triad, and the
granting thereof would necessitate a
Tetrial of the case, the court should in
the exercise of a sound discretion, allow
the same, if by SO doing the ends Of
justice would be subserved 1t is the
opinion of the court, however, that the
testimony in this case, a review of
which is hereinafter made, discloses
that the plaintiff would find himself in
no better situation after the granting
of his motion than that in which he is
placed at the present time. If that be
true the ends of justice require that the
motion to amend be denied.
Let us see. The defendant is and
at the time of the commencement of
this action was, in the possession and
occupation of the land in controversy
Her predecessors in interest of the
north 1853 feet of lot 3 have occupied
and possessed the strip in controversy
as a part of lot ; since the same was
fenced on the west by Captain Little
ton pricr to 1870 w. D. Littleton tes-
titled that he had resided on lot ) with
his father, Captain Littleton. for sew
eral years prior to 1870, and up to
1873, when his father conveyed to one
McCaffray, through whom the defend
ant claims the record title to the north
T059 feet of lot 3 That in 1870 de-
fendant's west line was bounded and
fenced exactly as it is fenced at the
present time. In other words. that the
lands of the plaintiff and defendant for
more than twenty EIGHT years have
been fenced and occupied by the re-
spective parties in such manner as TO
include the strip of land in controversy
within the inclosure of the defendant.
John II. Judge testified that he was
80 years old and that he was born and
raised in the immediate vicinity of the
land in controversy, and that he had
known the same during all his life
That the boundary fence between the
plaintiff and defendant was located in
1870 just as it is now located. and that
no change had been made since 1870 in
the location of said fence. The testi-
mony of Messrs. Littleton and Judge is
practically uncontradicted. and clearly
establishes the adverse possession of
said strip of land by the defendant and
her predecessors in interest since 1870.
The plaintiff and his predecessors have
paid all taxes assessed against the east
23 feet and inches of said lot 6 dur
ing all times since 1870. But the
statute making the payment of taxes
a necessary element of adverse posses
sion did not go into effect until June |.
1873. and the Supreme Court of this
State has many times decided that ad-
verse possession for five years prior to
the last named date, though unaccom-
panied by the payment of taxes. was
sufficient to vest the title in the ad-
verse poSsessOr. (Sharp VS. Blanken-
ship. % Cal. 2SS; c. P. r. r. VS.. Shack
elford, 63 Cal. 261: Johnson VS. Brown.
63 Cal. 391: Webber VS.. Clarke, II Cal.
~; Woodard VS.. Faris, 100 Cal. 12)
The facts in the case of Woodard vs.
Faris supra We're almost identical with
the facts in the case at bar and in that
case the Supreme Court held that five
years continuous adverse possession