was left open, or allowed to remain open, through carelessness or negligence on the part of the defendant, which operated as a proximate cause of the animals being killed.

It becomes unnecessary to determine any other point made by the appellant, but for the reasons heretofore stated, the judgment and order should be reversed, and the cause remanded for a new trial.

BELCHER, C. C., and HAYNE, C., concurred.

THE COURT.-For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.

[No. 11923. Department Two.- October 31, 1887.]

A. G. WEBBER, APPELLANT, v. C. W. CLARKE, RE

SPONDENT.

PRACTICE WAIVER OF ASSIGNMENTs of Error.- Where a cause is submitted on briefs, the court may treat points not made in the opening brief as waived.

ADVERSE POSSESSION – PASTURAGE.—Where a party enters under color of title upon an open, uncultivated piece of grazing land, situated in a grazing country, and pastures sheep upon it, under the care of herders, during the pasturing season of each year, the tract being unoccupied during the rest of the year, he has sufficient possession

under the statute of limitations. COLOR OF TITLE

---

SHERIFF'S DEED. An entry in good faith under a sheriff's deed, not void upon its face, made in pursuance of the judg ment of a district court, regular in form, is an entry under color of title.

STATUTE OF LIMITATIONS PLEADING. The statute of limitations may be pleaded by reference to the appropriate section. Reference to explanatory sections is unnecessary.

ADVERSE POSSESSION

PAYMENT OF TAXES.-The provision requiring payment of taxes as an element of adverse possession is not retroactive.

ID.-- The five years' adverse possession need not be next preceding the commencement of the action. Therefore, non-payment of taxes subsequent to five years of sufficient possession is not material.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.

The facts are stated in the opinion.

Wigginton, Creed & Hawes, and George W. Lewis, for Appellant.

Atwell & Bradley, for Respondent.

HAYNE, C.-The action is described by the appellant as "an action to quiet the title to a parcel of land described in the complaint, and of ejectment for said lands."

The plaintiff claims under a school-land patent from the state, dated May 25, 1875, which was issued upon a certificate of purchase dated March 18, 1870.

The defendant claims under a sheriff's deed executed on February 27, 1874, after a sale under a judgment of a district court, "duly made and given" on January 9, 1872, and by adverse possession for the period required by the statute of limitations.

The court below gave judgment for the defendant, and the plaintiff appeals.

1. Numerous errors in the admission and rejection of evidence are alleged. None of these are argued in the appellant's opening brief. The appellant's counsel there say: "There are many technical objections that exist as to the regularity of the tax proceedings, sufficient to invalidate them, but we preferred to demonstrate upon principle and authority the invalidity of defendant's claim." That is all that is said with respect to the alleged errors in relation to "the regularity of the tax proceedings." As to errors in relation to other matters, not a word is said. In the respondent's brief attention is drawn to the fact that all the errors specified in the statement are waived by appellant's brief. And the appellant comes back with argument upon seventeen signments of error. There was no oral argument; and by the terms of the order submitting the case on briefs the respondent had no reply. We think that under sub

as

division 4 of rule 2 the appellant must make the points he relies on in his opening brief; and that he cannot reserve them for his reply. To permit that would be unfair to the respondent, and would increase the labors of the court. And while the court is undoubtedly at liberty to decide the case upon any points that its proper disposition may seem to require, whether taken by counsel or not, we think that under the circumstances of this case the technical errors alleged must be considered as waived. For that reason we do not notice them. (See, generally, Hihn v. Courtis, 31 Cal. 404.)

2. It is argued for the appellant, with much earnestness and ability, that the levy of the tax upon which the judgment of the district court was founded was void, for the reason that a tax cannot be imposed upon school lands before all the payments upon the certificate of purchase are made. But we do not think it necessary to pass upon that question. Whether the tax was void, and whether the judgment therefor was conclusive upon appellant as a judgment in rem or not, it was regular upon its face; and a sheriff's deed thereunder, in due form, constituted-to say the leastcolor of title, which, in connection with the possession shown, was a defense to the action.

Upon the question of possession, the findings were as follows:

"The purchaser, P. Byrd, during all the period from February 27, 1874, down to the twentieth day of May, 1879, claimed the land by virtue of such deed, and rented the same to J. S. Williams, on the condition that the said Williams should exclude all other persons therefrom, and use and occupy the same to the exclusion of everybody. And the said Williams, during all that time, a period of more than five years, did publicly and openly, notoriously, and peaceably, and uninterruptedly occupy and possess said land, and all of it, to the exclusion of plaintiff and the whole world; and the plaintiff,

her ancestors, grantors, predecessors, were not, nor were any of them, seised or possessed of said land at any time within five years before this action was brought. ... On the twentieth day of May, 1879, said P. Byrd sold and conveyed for a good and sufficient consideration all the land aforesaid to J. S. Williams, who continued publicly, peaceably, openly, and notoriously in the possession thereof, to the exclusion of the plaintiff and the whole world, and paid the taxes thereon down to the twelfth day of November, 1880, claiming the same as his property under the sheriff's deed aforesaid to Byrd, and the conveyance from Byrd to him.

"On the twelfth day of November, 1880, said J. S. Williams, by his deed of conveyance, conveyed the land aforesaid to C. W. Clarke, the defendant herein, who went into possession thereof at once, under a claim of title founded upon said conveyances, and said defendant has ever since continued to, and does now, occupy and hold possession of said land under a claim of right and ownership, based upon said conveyances, peaceably, openly, notoriously, continuously, uninterruptedly, and adversely to the whole world, and paid all the taxes levied or assessed upon the land from the twelfth day of November, 1880, down to the time this action was brought, except in 1883, when the taxes were paid by some person unknown to defendant.

"The land described in the complaint constitutes but one parcel, and had been continuously occupied and used by defendant and his grantors for more than five years before this action was brought, for the pasturage of their stock." It is argued that these findings are not supported by the evidence.

The tract in controversy is the east half of section 16, township 16 south, range 28 east, Mount Diablo base and meridian. It was not inclosed or cultivated, and no one resided upon it. The surrounding country "was

an open, uninclosed, uncultivated, unimproved country all around there." The nearest "improvements" were half a mile distant, and the nearest sheep-camp about a mile off. There is some conflict in the evidence, but if the defendant's witnesses are to be believed (and in view of the findings we must assume that they are), the defendant and his grantors herded their sheep upon the land during the grazing season of each year; that is to say, from February to July. During the rest of the year the land was "not pasturable for sheep," and appears (during such time) to have been entirely unoccupied.

The argument for the appellant is, that such pasturage does not constitute a sufficient possession, and particularly that it was not continuous. And these are the questions to be resolved.

"By actual possession," said Field, C. J., in a leading case, "is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. (Coryell v. Cain, 16 Cal. 573; and see Brumagim v. Bradshaw, 39 Cal. 44.)

Where, however, there is such subjection to the will and dominion of the claimant, manifested in some appropriate manner, residence upon the property is not essential (Bars tow v. Newman, 34 Cal. 91; Goodrich v. Van Landıgham 46 Cal. 601; Kelly v. Mack, 49 Cal. 524); nor, in such case is an inclosure necessary. (Hicks v. Coleman, 25 Cal. 132 85 Am. Dec. 103; McCreery v. Everding, 44 Cal. 252 Sheldon v. Mull, 67 Cal. 300.)

In the case of grazing land, in a grazing country, herding sheep upon it would seem to be an "appropriate use, according to the particular locality and quality of the property."

Accordingly, we find that in two cases pasturage of cattle within an inclosure was held to be sufficient pos