The patent and deeds to defendant were competent evidencefor the purpose of diminishing damages, reducing the value of rents and profits claimed by the plaintiff, and establishing in defendant a right in common with the plaintiff. The defendant was not a trespasser; he settled upon the land under the Act of 1852, and has shown a compliance with its provisions. The instructions asked were properly refused because they asked the Court to assume as a conclusion of law, from the facts hypothetically stated, that if the plaintiff performed the acts referred to, he had done all that was necessary to appropriate the land and to give notice of exclusive dominion over it. Whereas, it is the province of the jury to decide, from the evidence offered, upon the sufficiency of the acts of the plaintiff to impart notice to the public, whether or not under all the circumstances these acts were such as carried with them the evidences of ownership which apply in ordinary cases to the possession of real property. (39 Cal. 24; 1 Cal. 263.)
OPINION By the Court:
The Court erred in refusing to give the instruction asked by the plaintiff denominated in the record " second." The acts of Southmayd mentioned in that instruction, if done by him, would give him such a possession as would avail against a mere intruder upon the premises. There was error, too, in allowing the defendant to introduce in evidence the patent to Chapman and the deed of the latter to himself of a tract of land, which we understand to be without the lines of the tract of land sued for. That patent and deed could afford no sort of pretense for the defendant to appropriate the remainder of the land within the general inclosure. Nor can we see why the defendant was allowed to show that third persons held title to other portions of land within the general inclosure of the plaintiff. If the plaintiff had shown (and the evidence upon his part certainly tended to show) that he had the prior actual possession of the premises, and that the defendant entered upon that possession being himself a mere intruder and without title or right of entry, the latter should not, under the settled rule long established in this State, be allowed to protect himself from a recovery, or to diminish the damages which might otherwise be recovered against him by showing the true title to be outstanding in a third person. But here the outstanding title did not even purport to be a title to the land sued for, but only a title to other lands which were found within the same general inclosure with the lands in controversy. The only tendency that such evidence could reasonably be expected to have, would be to confuse the minds of the jury by distracting their attention to matters wholly foreign to the issue before them.
We are unable, too, to see how the mere proof of the existence of those outstanding titles would tend to show " a lack of that exclusiveness of possession in plaintiff to entitle him to recover," as maintained by the learned Judge of the Court below, in denying the plaintiff's motion for a new trial.
Judgment and order reversed, and cause remanded for a new trial.