McGarvey v. Little

         1. The Pulgas grant is a grant by boundaries. The Supreme Court of the United States have defined its boundaries in express terms. (U. S. v. Arguello, 18 How. 539 .)

         2. The title, from the Pulgas patentees, of respondent, is expressly stated and admitted in the record as having been made out.

         4. The ruling of the Court, that the jury were not the judges whether the patent embraced more land than the grant, was correct, as there was no attempt to show fraud or mistake in the survey or patent.

         The defendant is concluded by the patent, unless he can show that he is a third party under a title conflicting with that of the plaintiff. (Act of 1851.)

         3. The Copinger grant is not an interfering grant. It calls for the Pulgas boundary, and that boundary having been established, those claiming under the Copinger grant cannot attack it (except for fraud) in the Courts of this State. (Act of 1851, cited above; Act of Congress, 1836, and March 3, 1831; Gunn v. Bates, 6 Cal. 263 .)

         4. The prayer for a separate verdict was properly refused. Respondent proved defendants in possession. The appellant Higgins--the only appellant--filed a joint answer with defendant Rankin, theonly two found " guilty," admitting they were in possession, but not demanding a separate verdict.

         The onus was on appellant to show the nature and extent of his separate possession; whereas, there is no evidence whatever of the extent of his separate possession. The jury cannot be required to perform a vain thing, or an impossibility. (Winans v. Christy, 4 Cal. 70; Ellis v. Jeans, 7 Id. 409; Phillips Ev., Part I., Cow. & Hill's notes, 352; Greenleaf's Lessee v. Birth, 6 Pet. 302.)

         (a) In Winans v. Christy, cited above, defendant Shobe in his answer sets out particularly the extent of his possessions.

         (b) A separate verdict was not necessary: all defendants claimed under the same title, and no damages proved.

         JUDGES: Baldwin, J., delivered the opinion of the Court. Field, C. J., and Cope, J., concurring.

         OPINION

         BALDWIN, Judge

         This was an action of ejectment brought for the recovery of a tract of land in San Mateo county, comprehended within what is known as the Pulgas grant. The suit was brought against several defendants. The plaintiff introduced the original patent from the Government of the United States for the Pulgas tract. The patent issued after, and in pursuance of, a final decree of confirmation.

         The jury found a general verdict for the plaintiff against two defendants, not specifying the particular lots occupied by them respectively, but no damages were awarded.

         1. It is assigned for error that the Court erred in its instructions to the jury. The first instruction is, that the Pulgas grant was a grant by boundaries, and not by quantity. Upon an inspection of the grant, we see no error in this charge. (See Arguello v. U. S. 18 How. 548 .)

         2. The fourth instruction is excepted to. This is, if the premises were within the original boundaries mentioned in the Pulgas grant, then that the plaintiff had made out his title, even though the premises were more than a league from the shore of the bay, and although an area of more than four square leagues, measured as the witness described, would exclude the premises.

         We find upon the minutes of the Court, that the plaintiff offered the patent of the Pulgas ranch, Arguello's title, to S. M. Mezes; power of attorney from S. O. De Arguello and J. R. Arguello, to S. M. Mezes, and deed from Mezes to McGarvey, were offered in evidence. We see nothing of this in the statement for a new trial, nor are the documents set out. But the motion for the new trial fails to set forth the grounds upon which the defendant would rely, and the statement does not show that the testimony therein was all the testimony offered.

         Under these circumstances, we are unwilling to hold that the Court gave an abstract instruction or mistook the facts. The title being matter of record and wholly documentary, the Court was authorized to declare to the jury the effect of the papers in the given category.

         The main question was a question of boundary, and fairly left to the jury. It was for them to decide whether the premises were within the Pulgas grant; and the evidence being conflicting, we will not review their finding.

         3. There was no error in the fifth instruction. The defendants being in possession, and no averment or description in the answer, and no proof of the particular portions which they occupied or claimed, there was no error in refusing to direct the jury to bring in a separate verdict as to each. They filed a joint answer, and no damages are claimed. We do not see why separate findings should be required in such cases. If this were so, it would lead in many instances to delay and expense--especially where many trespassers were sued--and for no benefit. One jury was just as competent in this case to pass on the whole defence of both these defendants as two, and could as well render one verdict against the two defendants, as two verdicts.

         Some other errors are assigned, but the questions have either been passed upon here before, or are not considered necessary to be noticed.

         Judgment affirmed.