Year: 1859

must be possession, the right of possession, and
the right of property. All these rights may be
in different persons, and still each of these per-
sons would have vested right to his property, in
the. land Hence if one takes up land under a
law requiring an adverse possession of five years
in order to quiet title in himself he certainly
ought to have the benefit of the time in which
he held possession before the law was changed,
and as the law in this case has not changed the
limit still think such is the law of this case, ard
that ;as decisions referred to do not initiate
against these conclusions as found, in my ludg-
ment But | shall review the authorities briefly,
and show as | think, that am supported by them;
certain it is that if suhc is not the law, the Su-
preme Court has erred in holding that the stat
nic of limitation has ever been we'll pleaded for
five years have never run between the passage of
acts changing the law of limitations. The case
of Billings VS. Harvey, in 9th California, was
q case brought 10y Billings who claimed under
Suffers Mexican grant, in regard to which Mex
lean Grant, the Statutes Of 1855 had allowed
an extension OF time after the limitations, as fix
ed in other cases, and the Supreme Court mere
ly held in effect that when disability existed,
that the statutes of limitation would not run
until the disability was removed and that Mex
lean grantees need not sue for five years after
their title had been confirmed by the Supreme
Court of the United States. The same point
was decided in the case Of Hall VS. Billings, in
9TH Cal Reports. In the latter case, to sustain
the decision of the Supreme Court they rely
upon decision in Louisiana, as establishing the
rule, ''That where right has been established
in part, under one law, it may be continued under
another statute of limitations, and the two rights
thus acquired are to he added together, and if
the term is fully covered as fixed under the new
law, that the statute of limitations is we'll plead
ed But this decision is also under the same
law above referred to, the property being in
Sacramento. and part and parcel of the Suttcr
grant. This is no new doctrine, rs understand
the decisions quoted, but such as has been held
to he proper legislation in every State in the
Union, the policy of which is apparent, for with
out it the interests of infants, insane, and non
compos persons might suffer; greater latitude is
always given in such cases than where persons
laboring under no disability, stand quietly by
and see the labor of others incorporated into their
property, and there assert their rights.


The other case, referred to in Sth Cal Reports,
establishes no new principle, but on the contrary
sustains my ruling But whether that conclusion
the judgement in this case, for the reason, that
fou nd aFrmatireIU that Howe Co. We're first to
appropriate the waters in dispute, and that they
had never abandoped them


In my original findings, speak OF threats hay
ing been used, and counsel seem to have under
stood nse as accusing their clients of using threats
and mcnaces. ! made no such charge, but lid
say that when Howe & Go. yielded their rights,
it was frequently or general y through fear or
from policy, to prevent the destruction of their
property, as appeared from the testimony before
me, and think that the evidence supports the
conclusion. Whether Howe & Co did, in reality,
intend to claim all the waters of the stream at
the time of their location, is a fact which ] car
only determine from the evidence. or this feel
confident, however, that they have been most
fortunate in their proof and the more think Of
the testimony in the case, the more firmly am |
convinced, that the record before me would sup
port no other judgment than the one already
declared. There are other questions which
ought, perhaps, to discuss but this opinion has
already reached an unusual length.


After a careful review OF this case, and cx-
animation of the testimony with the aid afforded
me by the elaborate and earnest arguments of
counsel, | am yet constrained to believe the
former decision and judgment in the case to he
correct. and am therefore forced to refuse the
application made for a new trial. Let Judgment
be entered accordingly.


VIM i. DAINGERWELD,


District Judge.