McGary v. Hastings. cause a settlement or sale of the land. In the case of Rush v. Casey, 39 Cal. 339, we held that, inasmuch as by section 13 of the act of congress of March 3, 1851, establishing a board of land commissioners for the adjudication of private land claims, it is provided, that all lands included in claims which shall be finally decided to b: invalid shall be deemed part of the public domain of the United States, the final rejection of the claim operated, proprio vigore, to restore the land to the mass of the public domain. Without any further action on the part of the government, and by operation of law, the land became liable to entry for the purpose of settlement and preemption. Of course, therefore, when the title of Vallejo was finally rejected, the only alternative left the plaintiff was to purchase the land from the United States, or it would be open to settlement and preemption to all who possessed the proper qualifi cation. This is almost a parallel case to many which are found in the reports as to the hostile assertion of the paramount title. Thus, in Loomis v. Bedel, supra, a prior conveyance had been made by the covenantor. Upon the death of the prior grantee, the land was sold by his administrator at public auction, and purchased by the plaintiff, and it was held that these facts constituted an eviction. In Sprague v. Baker there was a mortgage upon the premises, executed by a prior owner. The holder of the mortgage threatened to take possession under his mortgage unless the amount due upon it was paid. It was paid by the covenantee, and this was held to be an eviction. Bemis v. Smith, 10 Met. 194; see, also, Dupuy v. Roebuck, Ala. 488; Brown v. Dickerson, 12 Penn. 372; Stewart 5. Drake, supra. We are, therefore, clearly of the opinion that the facts stated in the complaint show such an eviction as will constitute a breach of the covenant, and the demurrer was improperly sustained on that ground. In the complaint the plaintiff has set out the facts which constitute the eviction, instead of averring the fact of an eviction under paramount title as the ultimate fact, of which the facts stated are the evidence. No objection is raised to this course in this case, as doubtless both parties were anxions to obtain an early decision as to the liability of the defendant, and many cases sanction this form of pleading. We are clearly of the opinion, however, that the other is the proper course; though, as the point is not raised, we do not decide this case upon that ground. The transcript does not show when the suit was commenced, an 1, Page v. Fowler. therefore, we cannot pass upon the question of the statute of limitations. The cause of action, however, did not accrue until an eviction, actual or constructive. In this case that would be at the time the plaintiff entered and began to hold under the paramount title. It is well settled that the rule of damages, where there has been an actual loss of the premises, is the purchase-money and interest. Where the plaintiff has purchased the paramount title it is the sum actually and in good faith paid for the paramount title, and the amount expended in defending his possession, provided such damages shall in no case exceed the purchase-money and interest. The question as to whether the plaintiff can recover the costs of sending an agent to Washington to procure a law of congress authorizing the plaintiff to purchase his land cannot arise on this demurrer, which is general and to the whole complaint. On the facts stated, the plaintiff is entitled to recover the disbursements above mentioned, and the demurrer ought therefore to be overruled. The judgment is therefore reversed, and cause remanded, with directions to overrule the demurrer. PAGE, appellant, v. FOWLER. (39 Cal. 412.) Ejectment-Crops - Damages. The owner of lands, who has recovered a judgment of ejectment against persons occupying under a claim of title, is not entitled to the crops grown and harvested by such persons before the judgment. When, in such case, the owner obtained possession of the crops by replevin, held, in an action to recover their value, that the measure of damages was the highest market value within a reasonable time after the property was taken, with interest computed from the time such value was estimated. THIS was an action to recover the value of a quantity of hay taken by defendant from the plaintiff in an action of replevin. The facts are stated in e opinion. Wm. H. Patterson, for appellant. Wm. Hayes, W. A. Wheaton and G. R. B. Hayes, for respondent. Page v. Fowler. TEMPLE, J. The main facts of this case are almost precisely the same as in Page v. Fowler, 28 Cal. 605, and 37 id. 100. The plaintiff was in possession of about eight hundred acres of land, which had been inclosed for many years, and which he claimed to own under the so-called Suscol grant. In the summer of 1862, while crops put in by plaintiff were still growing upon the land, the defendants entered, claiming one hundred and sixty acres of land each, as preemptioners. They built small houses upon their respective claims, where they afterward lived. They each possessed the requisite qualifications to become preëmptioners, and each took the necessary steps to enter the lands in the proper land office of the United States. They were unsuccessful, however, in their attempts to preëmpt, and the plaintiff finally recovered a judgment against them for the land. In May, 1863, while they were in possession, and before the judgment in ejectment, they cut a quantity of hay upon the land, which was taken by the plaintiff by the writ of replevin in this suit. There is no question that, at the time this action was commenced, the rights of the parties, with reference to the property in controversy, are exactly the same as in the former case of Page v. Fowler ; but before this case was actually tried, plaintiff had recovered a judgment of ejectment against the defendants, and, as he claims, had been put into possession, and he now claims that the rule laid down in the former case cannot apply to this; that the reason why the plaintiff, out of possession, cannot recover against the defendant in the adverse possession, claiming to be the owner, is, because the personal action cannot be made the means of trying title; but that he may, under our system, by means of the 64th section of the practice act, commence his action for possession, and also separate actions for rents and profits, and for trespass or waste; and if, at the trial of his action of trespass or waste, he shows his judgment for the recovery of the land, it will be evidence of his right to recover for the trespass or waste; and that, upon the same principle, the plaintiff is entitled to recover in this case. I know of no warrant for this construction of the 64th section of the practice act; but, independently of that, I think the proposition not maintainable upon principle. It is undoubtedly true, that, at common law, a person who had been ousted from land might, after a recovery and reëntry, maintain is action of trespass for the mesne profits and for waste, for the Page v. Fowler. reason that after reëntry the law supposes he has always been seized, and the acts of the defendant were a continuous trespass upon the rightful possession of the plaintiff; but no case has been cited in which this principle has been held to make the owner of the land out of possession, under such circumstances, the owner of the crops grown and actually harvested by the defendant. The very fact that he may recover the rents and profits of the land shows that he cannot recover the crops; for, as was well said in the case of Stockwell v. Phelps, 34 N. Y. 363, the owner of the land, in such cases, does not recover the value of the crops raised and harvested, but the value of the use and occupation of the land; and the annual crops of grain and grass, which contain both the value of the use of the land and the labor of the farmer, do not, under such circumstances, belong to the owner of the land. It would be an oppressive rule to require every one who, after years of litigation, perhaps, may be found to have a bad title, to pay the gross value of all the crops he has raised; and it would be an inconvenience to the public if the bad title of the farmer to his land attached to the crops he offered for sale, and rendered it necessary to have an abstract of his title to make it safe to purchase his produce. Nor do I see that the act of congress of March 3, 1863, allowing the right of entry of these lands only to the bona fide purchasers under Vallejo, affects the rights of these parties to the hay. If it be admitted that the defendants entered upon the lands in good faith, with the honest intent to preëmpt them, and so held them until March 3, 1863, the same possession continued, with the same character and rights, until they were dispossessed and the plaintiff reëntered. This proposition is established in Stockwell v. Phelps, supra. The case of Kimball v. Lohmas, 31 Cal. 154, seems to modify, somewhat, the doctrine in Page v. Fowler, although no allusion is made to that case. It was for wood cut upon the land of the plaintiff, which was in the actual possession of the defendant. Mr. Justice SANDERSON, in rendering the decision, challenges the reasonableness of the rule in Halleck v. Mixer, 16 Cal. 574-affirmed in Page v. Fowler-and says it is of feudal origin, and that, upon authority, it is not easy to say what it is or where it came from, and that there is very little principle involved in it. He says: "The wood in question, having been cut from the land of the plaintiff, is as much his property now as before it was cut. By the severance Page v. Fowler. from the freehold, it was changed from real to personal property, but its title was unaffected. So are all the cases. If, then, it is his property, why is he not entitled to an action for it? Why limit his remedy to ejectment and damages ?" He then says that adverse possession is of two kinds- the one without color of title, and the other under claim of title, founded upon a written instrument, as a conveyance or a decree or judgment of a court. By the last ought to be understood, perhaps, possession under color of title, or bona fide claim of right; for, in the case of Page v. Fowler, the defendants claimed neither under a written instrument, as a conveyance, nor under a judgment or decree, and yet this court held their entry and possession as preemptors, under the laws of the United States, coupled with the fact that they actually entered, or attempted to enter, the lands in the proper land office, and were then contesting the right of the plaiff, was a sufficient adverse possession, under the rule in Falleck v. Mixer. As to actions for timber, or for taking away the subcise of the estate itself, the observations in Kimball v. Lohmar may be just; but, so far as they affect the annual crops, at least. I think I have shown there are reasons for the rule which are not derived fra the feudal relation or founded upon the overvice technicalities of the common law, nor yet upon the reason aost frequently given for the rule- that title cannot be tried .n a here transitory action. I am not aware, however, that any distinejon has ever been made between the two cases. The conclusion in mball v. Lokmas is entirely consistent with the other cases upon ae subject, for there the defendant had no title or color of title; and the cases show that there must be something more than a mere ssertion of title. The court, in such cases, will look into the case o see if there is in reality a claim of title to try. Harlan v. Haran, 15 Penn. 507. It was undoubtedly erroneous to enter a joint judgment against the plaintif in favor of the defendants. The entire theory of the defender was opposed to the idea that there could be any community of interest or ownership in the property; but, as this was an error which does not injure the plaintiff, we would not probably be justified in reversing the judgment on that ground alone. The only remaining question in the case is as to the rule of damages adopted on the trial. The plaintiff having failed to make out his case, of course the defendants were entitled to recover the value of the hay taken and disposed of by him. The hay was taken in VOL. II.-59 |