§ 309. Special issues not made by pleadings, how tried. A question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial. En. March 11, 1872.

OF THE TIME OF COMMENCING CIVIL ACTIONS. Chapter I. The Time of Commencing Actions in General, § 312.

II. The Time of Commencing Actions for the Recovery of Real Property, §§ 315-328.

III. The Time of Commencing Actions Other Than for the Recovery of Real Property, §§ 335-349.

IV. General Provisions as to the Time of Commencing Actions, §§ 350-363.

CHAPTER I.

THE TIME OF COMMENCING ACTIONS IN GENERAL. § 312. Commencement of civil actions.

$312. Commencement of civil actions. Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute. En. March 11, 1872. Am'd. 1897, 16.

Cal.Rep.Cit. 54, 150; 74, 479; 89, 538; 92, 629; 99, 503; 99, 614; 115, 172; 121, 198; 134, 468; 134, 470.

CHAPTER II.

THE TIME OF COMMENCING ACTIONS FOR THE RECOVERY OF REAL PROPERTY.

315. When the people will not sue.

316. § 317.

When action cannot be brought by grantee from the state. When actions by the people or their grantees are to be brought within five years.

Seisin within five years, when necessary in action for real
property.

Such seisin, when necessary in action or defense arising out
of title to or rents of real property.
Entry on real estate.

Possession, when presumed.

title, unless adverse.

Occupation deemed under legal

Occupation under written instrument or judgment, when deemed adverse.

What constitutes adverse possession under written instrument or judgment.

Premises actually occupied under claim of title deemed to be held adversely.

What constitutes adverse possession under claim of title not

written.

Relation of landlord and tenant, as affecting adverse possession.

Right of possession not affected by descent cast.

Certain disabilities excluded from time to commence actions.

§ 315. When the people will not sue. The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless:

1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is commenced; or,

2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years. En. March 11, 1872.

Cal.Rep.Cit. 63, 307; 63, 310; 66, 563; 66, 564; 67, 663; 83, 286; 83, 287; 83, 288; 98, 305; 98, 402. Title by occupancy: Civ. Code, sec. 1007.

§ 316. When action cannot be brought by grantee from the state. No action can be brought for or in respect to real property by any person claiming under letters patent or grants from this state, unless the same might have been commenced by the people as herein specified, in case such

patent had not been issued or grant made. En. March 11, 1872.

Cal. Rep.Cit. 63, 307; 63, 310; 67, 663; 83, 286; 83, 287; 122, 157.

§ 317. When actions by the people or their grantees are to be brought within five years. When letters patent or grants of real property issued or made by the people of this state are declared void by the determination of a competent court, an action for the recovery of the property so conveyed may be brought, either by the people of the state, or by any subsequent patentee or grantee of the property, his heirs or assigns, within five years after such determination, but not after that period. En. March 11, 1872. Am'd. 1873-4, 291.

§ 318. Seisin within five years, when necessary in action for real property. No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question, within five years before the commencement of the action. En. March 11, 1872.

85, 443; 89, 538;

90, 228;

91, 413;

91, 415;

91, 502;

92, 666;

95, 125;

96, 312;

96, 465;

97, 52;

109, 275; 112, 441; 112, 442;

92, 454;
97, 157; 101, 243; 101, 244;
112, 443; 117, 57; 119, 312; 122,
125, 259; 129, 9; 129, 674; 132, 78; 132, 117; 137, 530;
138, 229; 138, 230.

50; 122, 157; 124, 480;

Adverse possession: Secs. 321 et seq., infra.

Trespass upon real property, action for, must be brought within three years: Sec. 338, post.

Possession, presumptive evidence of ownership: See post, sec. 1963, subd. 11.

Action includes a special proceeding of a civil nature: Sec. 363, post.

§ 319. Such seisin, when necessary in action or defense arising out of title to or rents of real property. No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be

effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor or grantor of such person, was seised or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted or defense made. En. March 11, 1872.

84, 543;
91, 415;

91, 413;

92, 454;

96, 465; 109, 269;

109, 275;

112, 441;

117, 57; 119, 312; 122, 157; 124, 449; 125, 259; 129, 9; 132, 78; 132, 117; 138, 229; 138, 230.

Action includes a special proceeding of a civil nature: Post, sec. 363.

§ 320. Entry on real estate. No entry upon real estate is deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after making such entry, and within five years from the time when the right to make it descended or accrued. En. March 11, 1872. Cal.Rep.Cit. 63, 307; 66, 111; 109, 269; 125, 259.

§ 321. Possession, when presumed. Occupation deemed under legal title, unless adverse. In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action. En. March 11, 1872.

Cal. Rep.Cit. 63, 267; 63, 595; 65, 444; 71, 348; 83, 287;
103, 90; 109, 269; 138, 229; 138, 230.
Adverse possession: Post, secs. 322-325.
Forcible entry, one year: Post, sec. 1172.
Payment of taxes: See sec. 325, infra.

322. Occupation under written instrument or judgment, when deemed adverse. When it appears that the occupant er those under whom he claims, entered into the possession

of the property under claim of title, exclusive of other right, founding such claim upon a written instrument, as being à conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment, or of some part of the property, under such claim, for five years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract. En. March 11, 1872.

65, 444; 65, 445; 66, 111;

63, 595;

74, 16;

77, 487;

84, 543;

85, 443;

92, 668;

97, 26;

97, 273;

97, 378;

Cal.Rep.Cit. 63, 153;
68, 592; 73, 294;
86, 529; 92, 667;
109, 269; 132, 123.
Entry not under written instrument: See post, sec. 325.

§ 323. What constitutes adverse possession under written instrument or judgment. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases:

1. Where it has been usually cultivated or improved;

2. Where it has been protected by a substantial inclosure;

3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant;

4. Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. En. March 11, 1872.

Cal.Rep.Cit. 63, 153; 63, 595; 65, 119; 68, 592; 71, 348; 74, 16; 83, 287; 107, 106; 128, 187; 128, 458; 133, 79. Subd. 265, 444. Subd. 368, 349;

65, 120; 68, 352;
84, 543; 94. 662;
Subd. 168, 531.
68, 351; 92, 668.

$324. Premises actually occupied under claim of title deemed to be held adversely. Where it appears that there has been an actual, continued occupation of land, under a