PART IV. ACQUISITION OF PROPERTY. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. II. OCCUPANCY. III. ACCESSION. IV. TRANSFER. V. HOMESTEADS. VI. WILLS. VII. SUCCESSION. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. SECTION 1000. Property, how acquired. 1001. Acquisition of property by exercise of eminent domain. 1000. Property is acquired by: 1. Occupancy; Property, how acquired. 2. Accession; 3. Transfer; 4. Will; or, 5. Succession. of property by exercise domain. of eminent 1001. Any person may, without further legislative Acquisition action, acquire private property for any use specified in Section 1238 of the CODE OF CIVIL PROCEDURE either by consent of the owner or by proceedings had under Same. the provisions of Title VII, Part III, of the CODE OF CIVIL PROCEDURE; and any person seeking to acquire property for any of the uses mentioned in such Title is "an agent of the State," or a "person in charge of such use," within the meaning of those terms as used in such Title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. Simple occupancy. TITLE II. OCCUPANCY. SECTION 1006. Simple occupancy. 1007. Prescription. 1006. 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. NOTE.-Property without an owner fairly belongs to the first person who takes possession of it; and if there ever was a time when there was no such thing as exclusive individual property, occupancy may have given the first title, "for by the law of nature and reason, he who first began to use it acquired therein a transient property, that lasted so long as he was using it and no longer; or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force; but the instant that he quitted the use or occupation of it another might seize it, without injustice. Thus, also, a vine or a tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit, which he gathered for his own repast.-2 Black. Com., p. 2. This doc trine was well illustrated by Cicero, when he compared the world to a great theatre, which was common to the public, and yet the place which any man had taken was for the time his own. The doctrine is now well settled that a prior possession is presumptive evidence of title, and, unexplained, is sufficient title to recover the property upon in any action against a person having no better right; as applied to the action of ejectment, for instance, the authorities upon this point are numerous and decisive. It is not necessary that there should be a continued possession, corresponding in point of time to the period prescribed by the Statute of Limitations, to furnish this presumption of right. When continued for less than this period it will prevail as a presumptive right until rebutted by proof of a prior possession, right of succession, legal title, or other evidence sufficient to defeat such presumption. In cases where no other evidence of title than possession is given by either party, the prior possession must prevail, unless such prior possession has been abandoned or the subsequent possession has been continued until protected by lapse of time and the Statute of Limitations. In California it has been held that one in the actual possession of real property may rely upon his possession alone until the opposite party shows a better right.-Hawxhurst vs. Lander, 28 Cal., p. 331. That possession, however short, will entitle the claimant to recover, unless the defendant can account for such possession or show a prior possession or title in himself or a third person.-Potter vs. Knowles, 5 Cal., p. 87; Sunol vs. Hepburn, 1 Cal., p. 254; Bradshaw vs. Treat, 6 Cal., p. 172. That in actions for the recovery of land possession is primary evidence of title.-Hicks & Martin vs. Davis, 4 Cal., p. 67; Plume vs. Seward, 4 Cal., p. 94; Hutchinson vs. Perley, 4 Cal., p. 33; Keane vs. Cannovan, 21 Cal., p. 291; Sacramento Valley R. R. vs. Moffatt, 7 Cal., p. 57; Norris vs. Russel, 5 Cal., p. 249; English vs. Johnson, 17 Cal., p. 107. But to constitute a possession which will be evidence of ownership there must be an actual bona fide occupation-a possessio pedis—a subjection to the will and control of the possessor as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership.-Plume vs. Seward, 4 Cal., p. 94; Lawrence vs. Fulton, 19 Cal., p. 683. In the case last cited it was said that the word "occupation" might be so used with other expressions or under peculiar facts of a case as to signify residence, but that ordinarily the expressions "occupation," Prescription. "possessio pedis," "subjection to the will and control," are employed as synonymous terms and as signifying actual possession. As a rule, it is more easy to acquire personal property by occupancy than real property, on account of possession being stronger evidence of title. The reason of this is, that the ownership of real property is usually evidenced by writing and by record, while the reverse is true of personal property. Walker's American Law, p. 348; Thornburgh vs. Hand, 7 Cal., p. 554; Lafontaine vs. Green, 17 Cal., p. 294. 1007. Occupancy for the period prescribed by the CODE OF CIVIL PROCEDURE as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all. NOTE.-In Grattan vs. Wiggins, 23 Cal., p. 36, the Court say: "Lapse of time not only applies as a defense to an action, but it forms the basis of a new title acquired by prescription, which is founded upon statute." Angell, in his work on Limitations of Actions, defines the word "limitation" as follows: "By the term limitation, as here used, is meant the time which is prescribed by the authority of law during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or equity can be maintained."-Angell on Limit., Sec. 1. Some recent statutes provide in express terms that adverse possession for the time prescribed shall extinguish adverse titles, and vest the possessor with a fee.-Act. 3 and 4, Wm. IV; Angell on Limit., App. LVII, Sec. 2. Ours, before the Code, contained no such express provision, but such was held to be its effect when properly construed.-Arrington vs. Liscom, 34 Cal., p. 381. Angell says, in the language of Mr. Chancellor Harper, in Draton vs. Marshall, 1 Rice's Eq., p. 385: "The belief is that no case can be put in which a private individual knows that another person claims, and is in the actual enjoyment of land which belongs to him, and neglects to prosecute his rights at law, when there is nothing to prevent his doing so, that he will not be barred by the Statute of Limitations."-Angell on Limit., p. 397, Sec. 2. And Angell further says: "It is also unquestionable that where the land has been held under a claim to the fee for the time prescribed by the statute, and an entry is made by the party who has the written title, |