§ 251. Trespass for cutting or carrying away trees, etc., actions for.

Any person who shall cut down, or carry off any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds; or on the commons or public grounds of any city or town; or on the street or highway in front thereof, without lawful authority, shall be liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.

1. An action may be maintained against a trespasser who is cutting timber, as soon as the timber is cut. Sampson v. Hammond, 4 Cal. 184.

2. An injunction will not be dissolved restraining defendants from felling trees, where the question of boundary is in dispute; especially, where the defendant's bond will fully protect the defendant for any delay if it should turn out that they have the right. Buckelew v. Estill, 5 Cal. 108.

3. The measure of damages is not the value of the trees as firewood, but the injury done to the land by destroying them, considering the purposes for which such trees were used or designed, and not according to the speculative or fancied ideas of the jury. Chipman v. Hibbard, 6 Cal. 162. See also § 112 and notes, 34 et passim.

§ 252. Measure of damages, in certain cases, under the last

section.

Nothing in the last section shall authorize the recovery of more than the just value of the timber taken from uncultivated woodland, for the repair of a public highway or bridge upon the land, or adjoining it.

§ 253. Damages in actions for forcible entry, etc., may be trebled. If a person recover damages for a forcible or unlawful entry in or upon, or detention of, any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed.

1. When treble damages are given by a statute, the demand for such damages must be expressly inserted in the declaration, which must either recite the statute, or conclude to the damage of the plaintiff against the form of a statute. Chipman v. Emeric, 5 Cal. 240; contra, O'Callaghan v. Booth, 6 Id. 66.

2. If the Court refuses to treble the damages, the plaintiff has an adequate remedy by appeal, and an application for mandamus to the Court below to render judgment for treble damages must be denied. Early v. Mannix, 15 Cal. 150.

CHAPTER III.-Actions to determine conflicting claims to real prop erty, and other provisions relating to actions concerning real estate.

SEC. 254. Parties to an action to quiet title.

255. When plaintiff shall not recover costs.

256. If plaintiff's title terminates pending the suit, what he may recover, and how verdict and judgment to be. 257. When value of improvements shall be allowed as a set-off.

258. An order may be made to allow a party to survey and measure the land in dispute.

259. Order, what to contain and how served; if unneces sary injury done the party surveying, to be liable

therefor.

260. A mortgage shall not be deemed a conveyance, whatever its terms.

261. When Court may grant injunction; during foreclos ure; after sale on execution; before conveyance. 262. Damages may be recovered for injury to the possession after sale and before delivery of possession.

263. Action not to be prejudiced by alienation pending suit.

§ 254. Parties to an action to quiet title.

An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest.

1. Any person in possession may bring this action against any party who claims an estate or interest adverse to him. Merced Mining Co. v. Fremont, 7 Cal. 319. 2. The effects of this provision apply to mining claims. Id.

3. To maintain a suit to quiet title by a party in possession, it is enough that he claims under a deed which creates an equitable estate, or even a right of posses sion. Smith v. Brannan, 13 Cal. 107.

4. A jury being waived, it is immaterial whether an action under section two hundred and fifty-four of the Practice Act is an equitable or a legal proceeding. Id. 5. The proceeding by bill in equity, which an individual is allowed to take to set aside a patent or control its operation, is in the nature of a bill to quiet titleto determine an estate held adversely to him-to remove what would otherwise be a cloud upon his own title; or is in the nature of a bill to enforce a transfer of the interest from the patentce, on the ground that the latter has, by mistake or fraud,

acquired a title in his own name, which he should in equity hold for the benefit of the complaint. The individual complaint must therefore possess a title superior to that of his adversary, and of course to that of the government through whom his adversary claims, or he must possess equities which will control the title in his adversary's name. Biddle Boggs v. Merced Mining Co., 14 Cal. 279.

6. Section two hundred and fifty-four of the Practice Act enlarges the class of cases in which equitable relief could formerly be sought in quieting title. It authorizes the interposition of equity in cases where previously bills of peace would not lie. Curtis v. Sutter, 15 Cal. 259.

7. Suit under section two hundred and fifty-four of the Practice Act only lies with reference to property of which the plaintiff is in possession; and where suit is brought under that section to quiet title to a ranch, and plaintiff is in possession of a portion only, the suit must be considered as brought to determine the title to that portion, and no injunction lies to restrain parties who are entire strangers to the title from selling that portion, as their conveyances would not cloud plaintiff's title. And if the grantees under such conveyances should invade the possession of plaintiff, or unlawfully detain the same, the remedy at law is ample. Id.

8. In such suit the Court, sitting in equity, may direct, when proper, an issue to be framed upon the pleadings and submitted to a jury, if questions of a purely legal character in relation to the title arise. Id.

9. Under this section, a party in possession of real property may bring a bill in equity to quiet title against a party out of possession, who claims an estate or interest adverse to him, without waiting until he has been disturbed in his possession by legal proceedings against him, in which his title has been successfully maintained.

Id.

10. The statute (Pr. Act, § 254) giving a right of action to a party in possession of real estate to determine adverse claims, does not confine the remedy to the case of an adverse claimant setting up a legal title, or even an equitable title; but embraces every description of claim whereby the plaintiff might be deprived of the property, or its title be clouded, or its value be depreciated, or whereby he might be incommoded or damnified by the assertion of an outstanding title already held, or to grow out of the adverse pretension. Head v. Fordyce, 17 Cal. 149.

ACTION OF EJECTMENT.

11. Generally.-Ejectment is a possessory action, and must be brought against the occupant; it determines no rights but those of possession at the time, and it matters not who has, or claims to have, the title of the premises. Garner v. Marshall, 9 Cal. 268.

12. In ejectment the legal title must control. Estrade v. Murphy, 19 Cal. 248. 13. Under our system, probably, an action can be maintained upon any title, legal or equitable, or upon an instrument, sealed or unsealed, which entitles plaintiff to the possession of the property in dispute as against the defendant. Ortman v. Dixon, 13 Cal. 33.

14. Many Mexican grants are legal titles, and most of them are, when united to possession, such equitable titles as are entitled to protection, and give a right to a possessory action. Lathrop v. Mills, 19 Cal. 513.

15. The purchaser of an equitable title takes the property subject to all existent equities. He is not within the rule which protects a bona fide purchaser for value and without notice of the real or apparent legal title. Dupont v. Wertheman, 10 Cal. 354.

16. A perfect equity united with possession is, under our system, equivalent, for all purposes of defense, to a legal title. Morrison v. Wilson, 13 Cal. 494.

17. Parties having the title, and the present right of possession, can always enter peaceably into the possession of premises, and cannot be held liable for so doing in trespass or ejectment. If he uses force, the remedy is by forcible entry and detainer. Norton v. Hyatt, 8 Cal. 539.

18. Possession.-Prior possession is evidence of title; but this evidence may be destroyed by abandonment. Bird v. Lisbros, 9 Cal. 1.

19. A party in possession of land is deemed in law the owner against all persons but one having superior title thereto; possession is evidence of title, and the

possessor, in conveying, is deemed to convey the title itself sufficiently to enable his grantee to maintain ejectment against a mere trespasser. Id.

20. It is the settled doctrine of the law, repeatedly affirmed by this Court, that the prior possession of the plaintiff, or parties through whom he claims, is sufficient evidence of title to support the action of ejectment. Nagle v. Macy, 9 Cal. 426; Grover v. Hawley, 5 Id. 485; Hutchinson v. Perly, 4 Id. 33; Winans v. Christy, Id. 70; Plume v. Seaward, Id. 94.

21. Where a party takes possession of a tract of land, and incloses it with a fence, consisting of posts seven feet apart and one board six inches wide nailed on to the posts, and the same is not sufficient to turn cattle, and the land is not cultivated, such possession is not sufficient to sustain an action of ejectment as against a party in possession of a part of the tract under a deed to the whole. Baldwin v. Simpson, 12 Cal. 560.

22. Possession of land at the death of a party gives prima facie title to his heirs or representatives. Gregory v. McPherson, 13 Cal. 562.

23. It is sufficient in our system, if it appear that the plaintiff was entitled to possession of the premises at the commencement of the action and the date of the alleged seizin or possession, and ouster is only material when the question of mesne profits is involved. Yount v. Howell, 14 Cal. 465.

24. In ejectment, a variance between the alleged seizin and right of possession of plaintiff and the date of conveyance to him is immaterial, if the latter be previous to the commencement of the action. Right of possession in plaintiff and occupation by defendant at that time are sufficient. Stark v. Barrett, 15 Cal. 361. 25. Where plaintiff relies, not on the Possessory Act of the State, but on the prior possession of himself, or of parties through whom he claims, such possession must be shown to have been actual in him or them; and by actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. Coryell v. Cain, 16 Cal. 567.

26. In controversies respecting public lands, other than mineral lands, the title, as between citizens of the State, where neither party connects himself with the Government, is considered vested in the first possessor, and to proceed from him. This possession must be actual and not constructive; and the right it confers must be distinguished from the right given by the Possessory Act of the State. Id. 27. In ejectment, plaintiffs may rely on prior possession, and the legal title is not necessarily involved. Grady v. Early, 18 Cal. 108.

28. Possession with color of title-Where a party takes possession of a part of a tract of land, under a deed of conveyance to the whole, and at the time of entry no one is holding adversely, such possession will extend to the whole tract described in the deed. Rose v. Davis, 11 Cal. 133.

29. Possession of a part, under the deed to the whole tract, where the possessor's grantors had the land surveyed, and the lines marked by the blazing of trees, is sufficient possession as against a party who enters upon a part of the tract and builds a fence wholly insufficient for any other purpose than to mark the line of his claim. Baldwin v. Simpson, 12 Cal. 560.

30. Defendant had been let into possession under judgment in ejectment by him against C. This judgment was afterwards reversed. C. sells to G.: Held, that defendant's possession was sufficient, until restored by due course of law, to break the force of the claim of G. based upon the prior possession of C. Gregory v. Haynes, 13 Cal. 591.

31. Mere prior possession of land cannot prevail against the present possession of defendant, taken under claim of title derived, regularly or not, from the rightful owner. Id.

32. What constitutes possession.-The fact that cattle and horses of a person have roamed over and grazed upon a certain tract of land does not of itself alone make out an actual possession of land in him. Suñol v. Hepburn, 1 Cal. 254. 33. A mere survey and marking lines of a boundary, without an inclosure of the premises, is not a possession in law, unless made so by complying with the statute in reference to the mode of maintaining possessory actions on public lands. Bird v. Dennison, 7 Cal. 297.

34. To constitute possession of land there must be an actual, bona fide occupation, or possessio pedis, a subjection of it to the will and control of the possessor, as contradistinguished from a mere assertion of title, and the exercise of casual acts of ownership, such as recording deeds, paying taxes, etc. Plume v. Seward, 4 Cal. 94, affirmed by Bird v. Dennison, 7 Cal. 297.

35. An actual inclosure, the defendant residing or having tenants and a dwelling within it; the continued claim to the property, holding a deed purporting to convey the title; selling a portion; using a portion for a milk ranch or other agricultural purposes; the laying off of the property into lots, making houses, and the occupation of tenants; fencing in smaller portions of the tract, and repeated acts of dominion over different parts of it-these acts continued, or done at intervals for a series of years, would seem conclusive of the fact of actual possession, and would not be rebutted by the mere fact that occasionally an exterior fence was out of repair, or that it was not always sufficient to prevent forcible intrusion into the premises by persons or cattle; nor would it be rebutted by an occasional trespass upon small parcels of the tract, committed by persons setting up no title save that of mere entry and possession. City and County of San Francisco v. Beideman, 17

Cal. 463.

36. The fact that a party had cattle on the land, or was there for short periods himself, or that he claimed within given limits, is, in the absence of any inclosure or some visible physical signs of the extent of his boundaries or claim, insufficient to show the fact of possession of any particular tract, when others were also in possession. Wilson v. Corbier, 13 Cal. 166.

37. The actual possession, by virtue of which parties obtain the title of the city of San Francisco to the pueblo lands, under the second section of the Van Ness Ordinance, means a possession accompanied with the real and effectual enjoyment of the property; that possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must be evidenced by occupation, or cultivation, or other appropriate use, according to the locality and character of the particular premises. An inclosure, by an ordinary fence, of the premises, without residence thereon, or improvements, or cultivation, or other acts of ownership, is of itself insufficient. Wolf v. Baldwin, 19 Cal. 306. 38. A mere inclosure by a fence is of itself only the declaration of an intention to appropriate and possess the premises; but does not, unaccompanied with any other acts, constitute the actual possession contemplated by the ordinance. Id.

39. Effect and extent of possession.-The possession of a party who has neither title nor color of title does not extend beyond the metes and bounds of his actual occupation; and this is so according to Spanish and Mexican, as well as English and American law. Suñol v. Hepburn, 1 Cal. 254.

40. A party cannot, by the Mexican law, acquire possession beyond the metes and bounds of his actual occupancy, unless he claims to hold under what is termed a just title (titulo justo); and a deed void on its face is not a just title. Id.

41. Possession of public land carries with it the privileges and incidents of ownership against every one but the Government, subject only to rights antecedently acquired. Crandall v. Woods, 8 Cal. 136.

42. The Van Ness Ordinance does not limit the quantity of land to which the actual possessor acquires the title of the city; and the Courts cannot annex any limitation, but can only hold parties to clear proof of the actual possession. Wolf v. Baldwin, 19 Cal. 306.

43. Possession under the Possessory Act.-A party relying on the Possessory Act of the State must show compliance with its provisions, and can then maintain an action for the possession of lands occupied for cultivation or grazing, without showing an actual inclosure or actual possession of the whole claim. Coryell v. Cain, 16 Cal. 567.

44. Place of trial of actions of ejectment.—See ante, § 18.

45. Parties, plaintiff.-Actions of ejectment must be prosecuted in the name of the real party in interest. Ritchie v. Dorland, 6 Cal. 33.

46. In ejectment for common property, the action should be in the name of the husband alone. But if the wife be joined, the misjoinder is no ground of nonsuit on the trial, though it would be ground of demurrer if the defect appeared on the