Cousino v. Western Shore Lumber Co.

This action was brought to determine the adverse claim of the defendant to 480 acres of land in San Mateo County under the provisions of section 738 of the Code of Civil Procedure. The defendant denied title in the plaintiffs to any portion of the property, and in a cross-complaint asserted ownership of the property in itself. The facts of' the case are practically without conflict, and are briefly these:

Mary Huot, a Sioux mixed blood Indian woman, was born on the Lake Pepin Reserve in Minnesota in the year 1850. Pursuant to an act of Congress passed July 17, 1854 ( 10 Stat. 304 , c. 83), there was issued to her and in her name Siouz half-breed scrip entitling her to locate for herself lands. of the public domain. The scrip was delivered by the United States government to John Huot, the father of Mary Huot, for her use and benefit, on March 25, 1857. On January 22, 1864, said John Huot was appointed his daughter’s guardian by the county court of Pierce County, Wisconsin, where she then resided, and on the same' day, and as such guardian, he executed to one Wm. S. Chapman a power of attorney, by which he authorized said Chapman to locate said scrip upon public lands. On October 19, 1868, said Chapman, acting under said power of attorney, located the scrip upon the lands involved in this action in the name of Mary Huot, and patents therefor were issued to her on January 20, 1874, which patents were recorded in the county of San Mateo on September 16, 1881. Mary Huot married John Cousino, also spelled Cosineau, on June 17, 1864, in the state of Wisconsin, where she continued to reside until 1876, when she and her husband removed to the state of Minnesota, where they lived until the year 1888, when they took up their residence at Grant’s Pass, Oregon; where she died on May 28, 1894, leaving as her heirs her husband and seven children, who constitute the plaintiffs

The defendant bases its claim of ownership of the lands in question upon several grounds, the first of these being that of an alleged conveyance by Mary Huot and her husband to Wm. S. Chapman, dated July 26, 1871, by whom the premises were conveyed to the defendant. The deed from Mary Huot and her husband to Wm. S. Chapman was executed on their behalf by one Henry T. Welles, purporting to act as their attorney in fact under a certain power of attorney executed by them on May 20, 1871, by which Mary Cosineau, formerly Mary Huot, and John Cosineau, her husband, of the county of Pierce, state of Wisconsin, constituted and appointed said Henry T. Welles their true and lawful attorney “for us and in our names, places and stead to enter into and upon and take possession of any and all pieces and parcels of land or the timber and other material therein in the state of Minnesota and in any state or territory of the United States which we now own or which we may hereafter acquire or become seised of or in which we may now or hereafter be in any way interested and we further authorize and empower our said attorney to grant, bargain, sell, demise, lease, convey and confirm said land or any part thereof ... to such person or persons and for such prices, as to our said attorney shall seem meet and proper,” etc.

The first point urged by the appellants herein is that said power of attorney was not sufficient in its grant of powers to have authorized said Henry T. Welles, as the attorney in fact of Mary Cosineau, formerly Mary Huot, to convey her separate property, their particular contention being that said power of attorney being joint in its terms must be construed as having reference only to the joint property of the parties executing the same, or at most to such property as both of the parties “now own” or “may hereafter acquire or become seised of,” or “may now or hereafter be in any way interested” in; and that since the property with respect to which the power was attempted to be exercised was situated in California and was the separate property of the wife in which the husband had no present or prospective interest, it was not covered by the terms of the power. Whatever the rule may be in other jurisdictions, we are constrained to hold that from an early date in the judicial history of California it has been

In addition to this, however, the supreme court of the United States has declared the same rule for the construction of powers of attorney joint in form. In the case of Holladay v. Daily, 19 Wall. 606 , [ 22 L. Ed. 187 ], involving the validity of a transfer of the separate property of the husband under a joint power of attorney executed by the husband and wife, Mr. Justice Field, in sustaining such conveyance, said: “A power of attorney created by two or more persons possessing distinct interests in real property may, of course, be so limited as to prevent a sale of the interest of either separately; but in the absence of qualifying terms, or other circumstances, thus restraining the authority of the attorney, a power to sell and convey real property, given by several parties, in general terms, as in the present case, is a power to sell and convey the interest of each, either jointly with the interests of the others, or by a separate instrument. ’ ’

The chief reliance of the appellants herein is upon the case of Gilbert v. How, 45 Minn. 121 , [ 22 Am. St. Rep. 724 , 47 N. W. 643 ], in which a power of attorney substantially in the form of the power under review in this case was held to be insufficient to authorize the donee of the power to convey lands in which only one of the donors of the power was interested. That this case is in conflict with the rule laid down in the foregoing California cases and also with the statement of the rule by the supreme court of the United States in the case above cited was pointed out by Mr. A. C. Freeman in his notes to the case of Gilbert v. How, as reported in 22 Am. St. Rep. 724 . It is also to be noted that the rule announced in the case of Gilbert v. How has been very much modified by the courts of Minnesota in three later cases, viz.: Tuman v. Pillsbury, 60 Minn. 520 , [ 63 N. W. 104 ] ; Snell v. Weyerhauser, 71 Minn. 57 , [ 73 N. W. 633 ], and Roy v. Harrison Iron Min. Co., 113 Minn. 143 , [ 129 N. W. 154 ], in each of which later cases powers of attorney in almost the precise phraseology of that under review herein were held to be sufficient to support conveyances of the separate property of the husband, in which at most the only interest of the wife was an inchoate right of dower. In each of these last-named eases the supreme court of Minnesota lays special emphasis upon the clause in the power authorizing the donee thereof to con

The respondent further supports its claim of title to the premises by the plea and proof of adverse possession, and we think its claim in that behalf should also be sustained. The lands in question are rough mountain timber lands valuable chiefly, if not solely, for the timber thereon, which consists of a heavy growth of redwood, fir, and oak. From a period not long after the defendant received the conveyance of these lands from Chapman it began patrolling the same for the prevention of trespassing and for the protection of the timber against fires. In connection with both of these purposes trails were laid out and constantly maintained through various portions of the property from a time shortly after the conveyance to it of the property down to the date of the inception of this action, .and which were made use of constantly by the agents of the defendant to keep hunters, fishers, campers, and other trespassers off the property, and to protect all portions thereof against fires. A- cabin for the use of the patrols was built and maintained upon the premises, and from time to time as fires occurred within or threatened to invade the property bodies of fire-fighters were used in preserving its timber from destruction. It is conceded that the defendant paid the taxes assessed against the property during all these years. The lands, as we have seen, were timber lands. The defendant, who was thus the occupant of said lands, was a lumber company, and the ordinary and eventual use to which said lands were to be put was that of the cutting, logging, and milling of the timber thereon; and this being so, we think the possession of the defendant, as indicated by its foregoing assertion of control over said property, based as it was upon a claim of title founded upon

The other points made upon the appeal do not require discussion.

Judgment affirmed.

Shaw, J., and Sloss, J., concurred.

Hearing in Bank denied.