
    [No. 13112.
    Department Two.
    September 26, 1891.]
    J. McGOVERN et al., Respondents, v. GEORGE B. MOWRY, Appellant.
    Quieting Title — Possession of Plaintiff — Action against Trespasser. — The actual possession and occupation of land under claim of ownership for any period is sufficient- to enable the party in possession to maintain an action to quiet title as against a trespasser or one who establishes no title in himself.
    Id. — Prima Facie Evidence of Seisin in Fee. — The possession of real estate is prima facie evidence of a seisin in fee.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
    The facts are stated in the opinion of the court.
    
      R. Percy Wright, for Appellant.
    To make out a prescriptive title to the land described in the complaint, it was incumbent upon the plaintiffs to show that they had complied with the provision contained in section 325 of the Code of Civil Procedure. (Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100; Reynolds v. Willard, 80 Cal. 605.) The possession of land owned by another, not accompanied by any claim of ownership, express or implied, will never ripen into title, however long continued. (Harvey v. Tyler, 2 Wall. 328; Angell on Limitations, sec. 390; Carrol v. Gillion, 33 Ga. 547; Fugate v. Pierce, 49 Mo. 447; Turpin v. Saunders, 32 Gratt. 34; Humbert v. Trinity Church, 24 Wend. 586; Kimball v. Lohmas, 31 Cal. 159; Lovell v. Frost, 44 Cal. 471; Thompson v. Pioche, 44 Cal. 517; Mauldin v. Cox, 67 Cal. 392.)
    
      Page & Eells, for Respondents.
    Actual possession, under claim of ownership is sufficient evidence of title in the plaintiff as against a trespasser or one who establishes no title in himself. (Code Civ. Proc., sec. 1963; Civ. Code, sec. 1006; King v. Gotz, 70 Cal. 240. See also Pierce v. Stuart, 45 Cal. 280; Niag
      
      ara Cons. G. M. Co. v. Bunker Hill Cons. Mining Co., 59 Cal. 612; Pierce v. Felter, 53 Cal. 18; Pralus v. Pacific G. & S. M. Co., 35 Cal. 34; Smith v. Brannan, 13 Cal. 114; Crook v. Forsyth, 30 Cal. 662; Horn v. Jones, 28 Cal. 203.)
   Sharpstein, J.

This is an action to quiet title to certain lands in the Laguna Survey, in San Francisco. Several defendants were sued, but only one defendant, George B. Mowry, appeals. His answer denied the plaintiffs’ title, and set up title in himself. The findings of the court are in favor of plaintiffs on all the issues, and the appellant attacks them upon the two' very material grounds,—“ 1. That there was no evidence that plaintiffs were the owners of the land; and 2. That the evidence established the defendant Mowry to be the owner.”

The evidence for plaintiffs establishes that they are husband and wife; that they inclosed the land in question with a substantial fence about March 1, 1882, and used it as a pasture until 1886, when they built a dwelling-house upon it, and have ever since resided there; that they filed a declaration of homestead upon the property in 1886; that a deed from the city under the Van Hess ordinance was made to them in 1883, and that their possession has been exclusive and undisturbed under claim of title since March, 1882. The suit at bar was begun on August 17, 1887. The alcalde grant covering the lot in question was executed on September 25, 1848, to one Stephen A. Harris, and no deraignment of title from Harris was shown by either party, except so far as it is to be presumed from plaintiffs’ occupation of the land. Counsel for appellant claims that the proof of plaintiffs’ title is insufficient, because the Van Hess ordinance deed is inoperative, owing to the previous alcalde grant, and because plaintiffs have not established a title by prescription, owing to the fact that they had not paid taxes upon the property for the full term of five years before the commencement of the action. His contention is, that it is incumbent upon the plaintiff in a suit of this character to establish a perfect title of record or by prescription, whether the defendant has any title or not, and that on the failure of such proof by the-plaintiff, the action should be dismissed. Counsel for respondents claim, on the contrary, that actual possession under claim of ownership is sufficient evidence- of title in the plaintiff as against a trespasser or one who-establishes no title in himself.

Section 1006 of the Civil Code provides- that occupancy for any period confers a title sufficient against all except the state and those who have title- by prescription, accession, transfer, will, or succession.”'

The possession of real estate is prima facie evidence of the highest estate in the property, to wit, a seisin in fee.” (Hill v. Draper, 10 Barb. 458.)

The plaintiff was in the actual possession and occupation of the premises at and for a long time before the commencement of this action. This was sufficient to enable him to maintain an action to quiet title against any one who, like defendant, never had any title, but who claimed to have title to the premises.

Judgment and order affirmed.

De Haven, J., and Harrison, J., concurred.

Hearing in Bank denied.  