ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
MR. JUSTICE FIELD delivered the opinion of the court.
This case comes before us on error to the Supreme Court of California. The action was ejectment, commenced in July, 1891, to recover possession of certain parcels of land situated in the county of Contra Costa, in that State.
The plaintiff in the court below, defendant in error here, alleges in his complaint that on the 26th of February of that year he was the owner in fee and entitled to the possession of certain parcels of land, described as lots Nos. 2 and 3 of section No. 22, and lot No. 1, and the northeast quarter of the northeast quarter of section No. 27, in township No. 2 north, of range No. 3 west, Mount Diablo base and meridian, according to the official survey of the government of the United States.
That while he was such owner, and thus seized and entitled to the possession of the premises, the defendant, on the day mentioned, without right or title, entered upon the premises and ejected him therefrom, and ever since has withheld, and still unlawfully withholds, the possession thereof, to the damage of plaintiff of $1000.
That the value of the rents, issues, and profits of the premises from the entry stated and while the plaintiff has been excluded therefrom is $50.
The plaintiff, therefore, prays judgment against the defendant for the possession of the premises and the recovery of the sum of $1000 for withholding the same, and the sum of $50 for the value of its rents and profits, and for such other and further relief as to the court may seem meet and proper.
The defendant in his amended answer denies generally and specifically each of its allegations, except that he is and has been in the possession of the premises, which he admits, and
claims that he is the owner thereof and entitled to their possession. And he denies that the plaintiff, by reason of the defendant's possession, has been damaged in the sum of $1000, or in any other sum.
And in his answer, treated as a cross-complaint, the defendant makes certain allegations as to the acquisition and possession of other property, upon which he asserts a right to enter the tract in controversy as an adjoining farm homestead; averring that on the 2d day of October, 1882, he became the owner and went into the actual possession of a tract of land situate in the county of Contra Costa, being a portion of the land which was awarded to one James McClellan, under partition of a certain rancho entitled Pinole Rancho in which he was interested, as it was surveyed and patented by the United States, and which portion Getta Stewart, his wife, acquired from him.
That the portion thus acquired, a tract of land containing about sixty (60) acres, was, on October 2, 1882, conveyed to the cross-complainant by deed executed and acknowledged by her. And he alleges that in the month of March, 1876, he went into actual possession of certain public lands of the United States situate in the county of Contra Costa, embracing a portion of the property for which this action is brought, containing, according to the public surveys, seventy (70) acres and twenty-five (25) hundredths of an acre, and that he has from that date remained in the actual possession thereof, and used and cultivated the same, and that the public lands adjoin the land conveyed to him by Getta Stewart, and were reserved from settlement under the United States laws, on account of unsettled Spanish and Mexican land grants, until the 16th of April, 1883, when the boundaries of the Rancho El Sobrante, of which they were a part, were finally settled.
That on the 10th day of December, 1883, the survey of the public lands was approved by the United States surveyor general of California, and the map of the township was filed ...