CENTRAL PACIFIC RAILROAD COMPANY, Respondent, v. A. MEAD, Appellant

[Department One. January 31, 1883.] CENTRAL PACIFIC RAILROAD COMPANY, Respondent, v. A. MEAD, Appellant. Ejectment—Statute of Limitations — Offer to Purchase.—The action was ejectment. The plaintiff claimed under a patent from the United States. The defendant relied on the Statute of Limitations. Evidence was given at the trial tending to show that the defendant had offered to purchase the land of the plaintiff within five years before the commencement of the action. In submitting the case to the jury the court directed them to disregard this evidence. A verdict was rendered in favor of the defendant. The plaintiff moved for a new trial, which was granted. Held, that the offer to purchase, if made, was a recognition of the title of the plaintiff, and an answer to the claim of adverse possession on the part of the defendant, and that a new trial was, therefore; properly granted. Appeal from an order of the Superior Court of the county of Colusa granting a new trial. Dyas & Bridgford, for Appellant. H. M. Albery and W. F. Goad, for Respondent. [MAJORITY — Ross, J.] Ross, J. The true and only paper title to the land in dispute is, and since March 17, 1875, has been in the plaintiff, as evidenced by a United States patent of that date. The plea of the defendant was the Statute of Limitations, and he relied upon adverse possession of the property for five years immediately preceding the commencement of the action as constituting a bar to the plaintiff’s action to recover it. There was evidence given on the trial tending to show an offer on the part of defendant to purchase the property from the plaintiff within the period of five years next preceding the commencement of the action. Such an offer, if made, was a clear recognition of plaintiff’s title, and a perfect answer to the defendant’s claim of adverse possession. (Lovell v. Frost, 44 Cal. 474; Tyler on Ejectment, 921.) An offer to purchase the property from the party having the legal title to it does not come within the doctrine of the case of Cannon v. Stockman, 36 Cal. 535, and of kindred cases. Order affirmed. McKinstey, J., and McKee, J., concurred. Hearing in bank denied.