Harris v. McGovern

ERROR to the Circuit Court of the United States for the District of California.

This is ejectment, commenced Jan. 10, 1870, by Edward H. Harris, Isaac H. Shimer and Letitia his wife, against John McGovern and others. A jury having been waived by written stipulation, the court tried the issue, and found the following facts:--

1. The land in controversy is known as one hundred vara lot, No. 19, of the Laguna survey, and is situated within the corporate limits of the city of San Francisco, as defined in the act incorporating said city, passed by the legislature of the State of California on the fifteenth day of April, 1851; but lies west of Larkin Street and northwest of Johnson Street, as they existed prior to and at the time of the passage of certain ordinances by the common council of said city, which were afterwards ratified by an act of the legislature of said State, entitled 'An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' approved March 11, 1858. Said land is also within the boundaries designating the lands to which the right and title of the United States were relinquished and granted to said city and its successors by the act of Congress entitled 'An Act to expedite the settlement of titles to lands in the State of California,' approved July 1, 1864.

2. On the twenty-fifth day of September, 1848, T. M. Leavenworth was alcalde of the pueblo or town of San Francisco, which was subsequently incorporated as the city of San Francisco, and on said day, as such alcalde, he made a grant in due form of the land in controversy to a party designated in said grant by the name of Stephen A. Harris, which grant was duly recorded in the official book of records of grants kept by said alcalde, and now constitution a part of the records of the office of the recorder of deeds of the city and county of San Francisco.

3. At the date of said grant there was residing at said pueblo or town of San Francisco a man named Stephen A. Harris, and another man named Stephen Harris. The said grant was intended for and delivered to said Stephen Harris, and not said Stephen A. Harris; and said Stephen Harris acquired, by virtue of said acts, all the title that passed or was conveyed by the said grant.

4. The said Stephen Harris left California in 1850, and never returned. He went to New Jersey, where he remained several years, then removed to Illinois, where he died on Nov. 5, 1867, leaving a will, by which he devised his property, including the land in controversy, to the plaintiffs, who are his children, and a portion of his heirs-at-law, and who at the time of the decease of said Stephen Harris were minors. Said will has been duly admitted to probate in the State of Illinois, but has never been presented to or admitted to probate by any probate or other court in the State of California.

5. There was no evidence tending to show that said Stephen Harris or said plaintiffs, or either of them, or any person claiming under them or any or either of them, ever improved said land, or ever was in the actual possession or occupation of said land or of any part thereof.

6. On May 1, 1854, Stephen A. Harris, at San Francisco, by deed in due form and duly recorded, conveyed said land to one Blackstone. All the right, title, and interest thus acquired by said Blackstone, by sundry mesne conveyances in due form and duly recorded, became on June 22, 1865, vested in said defendants for a valuable consideration paid, and without notice of the claim of Stephen Harris or said plaintiffs, or either of them.

7. In the spring of 1864 one Jenkins, one of said grantors of defendants, took actual possession of said land, claiming title under one of said mesne conveyances from said Blackstone, fenced and occupied said lands; and he and his several grantees, down to and including said defendants, have since said spring of 1864 down to the present time been in the actual, peaceable, open, continuous, exclusive, and adverse possession of said land, claiming title thereto in good faith against all the world, under said several conveyances from Stephen A. Harris, Blackstone, and their grantees.

8. There was no evidence tending to show that any party was in the actual occupation or possession of said land or any part thereof on the first day of January, 1855, or at any time between that date and the first day of July, 1855.

9. The plaintiff, Edward H. Harris, attained his majority in March, 1869, and Letitia Harris Shimer, the other plaintiff, her majority in May, 1868.

The court thereupon concluded as matter of law,--

1. That the adverse possession of the defendants' grantors having commenced in the spring of 1864, the Statute of Limitations began to run as early at least as July 1, 1864, the date of the act of Congress mentioned in the first finding of facts, at which time the title of the city of San Francisco to its municipal lands, situate within the boundaries of the carter of 1851, became perfect.

2. That the cause of action having accrued, and the Statute of Limitations having commenced to run during the lifetime of Stephen Harris, its running was not interrupted by his subsequent decease, and the descent of such right of action to the plaintiffs while minors and under a disability to sue.

3. That the defendants and their grantees having been in the continuous adverse possession of the lands for a period of more than five years subsequent to July 1, 1864, and before the commencement of this action, and there being no disability to sue when the cause of action first accrued, the action is barred.

Judgment having been rendered for the defendants, the plaintiffs sued out this writ of error.

Mr. D. William Douthitt for the plaintiff in error.

Mr. S. M. Wilson, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.