are not here discussed have been considered and are deemed to be without merit.

For the reasons above set forth, the judgment is affirmed.

We concur:

CONREY, P. J.

JAMES, J.

MYERS, J. pro tem.

Civil No. 2613. Second Appellate District. November 12, 1918. JOHN A. HORTON, Plaintiff and Respondent, v. WILLIAM M. MOORE, Defendant and Appellant.

[1] REAL PROPERTY-POSSESSION OF PART BY GRANTEE CONSTRUCTIVE POSSESSION OF WHOLE TITLE OF GRANTOR IMMATERIAL.-Where actual possession is taken of only part of the land described in a conveyance, the grantee is constructively in possession of the whole, and it is immaterial that the grantor had neither title nor possession.

[2] ID. POSSESSION OF TENANT AS POSSESSION OF LANDLORD-NOMINAL RENTAL AND USER IMMATERIAL. Possession by the tenant is possession by the landlord, even though such tenant holds the property under a lease at a nominal rental and pastures only a small number of cattle thereon.

[3] ID.-FENCE AS EVIDENCE OF POSSESSION--OPPOSITION TO CONSTRUCTIONINSUFFICIENT TITLE AS AGAINST PERSON IN POSSESSION.-While the building of a fence around a piece of land is evidence tending to show possession of the person who constructs it, yet the building of such fence where opposed by one claiming title to the property will not, in an action brought under section 1006 of the Civil Code, constitute occupancy sufficient to defeat the title of the latter who is in actual possession.

Appeal from the Superior Court of San Diego County-C. N. Andrews, Judge.

For Appellant-Wright & Winnek.

For Respondent-Herbert C. Kelly.

This appeal is taken from a judgment entered in favor of plaintiff, quieting title as against defendant in a certain tract of land in the county of San Diego. There is also an appeal from an order denying defendant's motion for a new trial.

It appears from the record that the land which is made the subject of this controversy, consisting of about 75 acres, is hilly in contour and suitable generally for grazing purposes. The sole ground upon which plaintiff based his claim was that of possession acquired immediately before the commencement of this action and evidenced by the building of a wire fence about the tract. We gather from the transcript that counsel for the plaintiff was the chief mover in the enterprise to acquire a title to this property, for said counsel in his testimony admitted that he had never seen the plaintiff; that he had a contingent interest in the outcome of the suit, and had no claim of title other than that depending for its validity upon bare possession. He testified as follows: "The possession was taken with the expectation of commencing suit as in the case of Davis v. Crump under section 1006 of the Civil Code, and when occupancy was taken, claim of title was made contemporaneously with the taking of the possession. From that time and ever since plaintiff has claimed that land as against everybody who cannot show title by the means stated in that section 1006." This action was commenced on the 5th day of June, 1914. Several days prior to that time, the nominal plaintiff, acting through Kelly, the attorney, put a force of men at work building a fence around the land. On the 3rd day of June (two days before the action was commenced), defendant Moore caused the fence, which did

not completely surround the land at that time, to be torn down. Immediately thereafter respondent's attorney had his men rebuild the fence, and on the 5th of June, at about noon time, it was nearly completed. The attorney, who was on the ground, left for his office, instructing his foreman that as soon as the ground had been completely surrounded by the fence to notify him by telephone. The foreman, acting under these instructions, telephoned the attorney at about 3 o'clock in the afternoon of June 5th that the fence had been completed, and the complaint in this action was immediately placed on file in the county clerk's office. Within the next day or two Moore again took down the fence. This comprised the whole showing of right in the plaintiff, as the evidence discloses it. The trial court determined that the plaintiff had possession of the property and that the defendant had neither title nor possession. Appellant contends that there was evidence that the defendant had possession of the whole tract claimed, and possession under color of title at least as to a portion thereof; and, secondly, that under the evidence the court was not justified in making the finding of possession in favor of the plaintiff for the reason that plaintiff's occupancy was not such as is intended to be described in section 1006, Civil Code; that under the terms of that section a mere "scrambling" possession is not sufficient to give rise to a presumption of title. The section mentioned has been amended since the controversy herein involved arose; it provided, prior to 1915, as follows: "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." It must, of course, first be conceded that if defendant had possession of the tract of land at the time plaintiff or his attorney intruded thereon, no cause of action such as this would arise in plaintiff's favor. We may then examine the evidence to determine whether at the time the action was commenced the defendant was in possssion of the land in dispute. There was no controversy as to the facts regarding the alleged possession by the defendant. Defendant testified that two or three years prior to 1913 he had leased the whole tract to one Allen, who had used it for grazing purposes and had paid rental therefor; that in 1913 Allen had not so many cattle to pasture and therefore not great need for the land, and that he (the defendant) had leased the property at the nominal rental of one dollar per year, the year under the nominal rental charge commencing in November, 1913, and not having expired at the time of the building of the fence by plaintiff in June, 1914. The defendant testified, in part, as follows: "I asked him (Allen), after he gave up his butchering business, to take charge of it and be nominally in possession and pay me a nominal sum of $1.00 per year so as to hold him in possession of the property at that time. . . . The city had stopped him from butchering in his place and he didn't require it. He had just his own cattle over it--fifteen or twenty head of cattle." Like testimony was given by the lessee, Allen, with the further statement that he knew the boundaries of the property; that during the early years of his leasing he herded at times as many as 200 head of cattle over that property and other property which he leased for the same purposes; that he excluded other cattle from the ground leased, also sheep, and, in brief, maintained possession of it. Referring to the last year, when the nominal rental was in effect, he said that he had not herded as many cattle there, adding: "I haven't got over twenty head of stock there now. They are on this particular Pueblo Lot 1182 pretty nearly every day." Several deeds were introduced on behalf of the defendant, being generally quitclaim in form and reciting that the grantors relinquished all interest in "Pueblo Lot 1182", being the tract which included the 75 acres in dispute. Some of these deeds specified, in addition, subdivisions of the

larger tract and referred to a certain partition suit which had theretofore been prosecuted in the superior court of San Diego county. Three of these deeds had been recorded at dates long prior to the building of the fence by the plaintiff. Defendant's testimony showed that, guided by a certificate of title issued by an abstract company, he had for several years been endeavoring to buy in the interests of all persons concerned in the title of the land in dispute. The deeds which we have mentioned, however, appear to have covered only portions thereof. We have noted that this land was contained within a larger tract, the larger tract being known as Pueblo Lot 1182. While two of the quitclam deeds purported to transfer to the defendant "all interest in Pueblo Lot 1182", they also, as just stated, referred to the property intended to be conveyed as subdivisions thereof. One of these subdivisions contained only 2% acres, another 10 acres. A third deed was quitclaim in form without specifying any particular portions of the whole tract; this latter deed, as defendant testified, being intended to cover a certain 44 acres. It does not appear that defendant by the conveyances which he showed in evidence pretended to have acquired paper title to the whole tract. It does appear to us, however, that such paper showing, sufficient to give color of title, was established as to portions of the tract, insofar as that question may be important to be considered. [1] Where actual possession is taken of only a part of land described in a conveyance, the grantee is constructively deemed to be in possession of the whole, and it is immaterial that the grantor had neither title nor possession. (Webber v. Clarke, 74 Cal. 11.)

[2] But aside from any aid which a colorable title might give to defendant's case: The land was occupied by defendant's tenant for at least several years prior to November, 1913, and this tenant knew the general boundaries thereof and excluded other persons from its use, and we see no reason to hold that this possession was disturbed in November, 1913, when the defendant renewed the lease at the nominal rate, for the only difference in the use to which the land was put thereafter, and down to the commencement of the action, was that the lessee pastured thereon a much smaller number of cattle than he had theretofore. If the defendant may be said to have had actual possession of the land at the time the plaintiff and his attorney intruded thereon and built the fence, then it matters not at all that he held under color of title, for, by the admission of his counsel and the utter lack of evidence showing anything to the contrary, the plaintiff had no better title. (Smith v. Hicks, 139 Cal. 217.) In such a case the defendant was the occupant and entitled, under section 1006, Civil Code, to maintain his possession against everyone except the state or persons who had acquired a better right than he had. It has been uniformly held that in order to establish possession of real property it is not necessary that a fence be built about it and that if a fence is so built it is merely evidence tending to show possession of the person who constructs it. It is also held that the terms "occupation", "possessio pedis", "subjection to the will and control", are synonymous; that property is possessed and occupied when it is put to a use appropriate to its general character. (Webber v. Clarke, supra; Lawrence v. Fulton, 19 Cal. 683; U. S. v. Rogers, 23 Fed. 658; Andrus v. Smith, 133 Cal. 78.) As stated at the trial, counsel for the plaintiff maintains that his case satisfies all the requirements presented in Davis v. Crump, 162 Cal. 513. In that we do not agree at all. An examination of the text of that decision shows that the court found nothing to indicate possession in any one but the defendants at the time of the making of the claim of title, the court saying: "As we have seen, there is nothing here to compel the conclusion that the possession was taken otherwise than

peaceably, or that any portion of the property inclosed was in the actual possession of any other person at the time." [3] As appellant suggests, the possession of the plaintiff at best was well described, considering the interruption thereof, as "scrambling". However, such possession might have ripened into the right claimed upon the completion of the fence, if there was an absence of showing of possession in any other person at the time. In the view we take of the evidence, the defendant sufficiently established the fact of actual possession within the meaning of the law, against which plaintiff was not entitled to prevail.

The judgment and order are reversed.

We concur:

CONREY, P. J.

JAMES, J.

MYERS, J. pro tem.

Civil No. 2556. First Appellate District. November 13, 1918. ROSE G. JOHNS, Plaintiff and Respondent, v. CHAUNCEY P. POND, De fendant and Appellant.

[1] PHYSICIANS AND SURGEONS-ACTION FOR MALPRACTICE-INSUFFICIENCY OF PROOF IN CASE IN CHIEF SUBSEQUENT INTRODUCTION-LACK OF PREJUDICE.— In an action against a physician for negligently and without occasion therefor, performing upon the plaintiff a surgical operation, the judgment will not be reversed on the ground that the plaintiff's evidence at the close of her case in chief was not sufficient to establish negligence, where evidence was subsequently introduced supplying the defect, and it was not shown that the defendant was prejudiced in the presentation of his defense by the circumstance that the testimony was thus produced.

[2] ID. SELECTION OF DIFFERENT METHODS OF TREATMENT-RIGHT OF PHYSICIAN-INSTRUCTION.-In such an action, the refusal to instruct the jury that if there is more than one method of treatment recognized by the medical profession, a physician may adopt either, where the jury was instructed that if the defendant "applied reasonable skill and judgment with ordinary care, he is not liable for any damages or injuries consequent upon an honest mistake or error in judgment in making a diagnosis, in prescribing treatment, or in determining upon an operation, and if what he did appears from the evidence to be in accordance with recognized authority and good current practice, you must find a verdict for the defendant".

Appeal from the Superior Court of Alameda County-W. M. Conley, Judge.

For Appellant-William P. Hubbard, D. C. Dutton.

For Respondent-Ostrander, Clark & Carey.

BY THE COURT.

This is an appeal from a judgment, taken within sixty days after the entry thereof, in an action wherein the plaintiff sought damages against the defendant, a physician, for negligently, and without occasion therefor, performing upon her a surgical operation.

The plaintiff alleges in her complaint that the defendant informed her that she had a fallopian tumor, and operated upon her for its removal, when in fact the symptoms diagnosed as indicating the presence of a tumor were caused by pregnancy; and that five months later she gave birth to a baby boy weighing nine and one-half pounds. As a result of the operation plaintiff alleges that her health has been permanently injured, and that she has suffered and will continue to suffer more or less pain in body and mind. Upon these facts she bases her demand for damages, placing the amount at $25.000.

The plaintiff was a witness in her cwn behalf, and we may paraphrase

her testimony as follows: "I shall have been married four years in January, 1916, and have since my marriage lived with my husband. The defendant attended me during pregnancy and at the time of the birth of my first child in the month of January, 1914. Until just prior to the 23rd day of December, 1914, I enjoyed good health. On that day I telephoned to the defendant to call on me, and when he came I told him that I had been having severe pains in my back and head and also in the pelvic region. I also informed the defendant that I had been examined by Dr. Somers of San Francisco, who said at the time of the examination that he thought I was pregnant five or six weeks. I further told him that I was having a scanty menstruation for almost a day each month. The defendant at that' time in my home made what he called a bi-manual examination, and concluded that perhaps my uterus had not contracted after my first child was born, but in any event he assured me that I was not pregnant, saying 'You are no more pregnant than I am.' At that time he gave me a prescription which I was to use four or five days, and if it gave me no relief I was to let him know. A week or ten days later I called up the defendant, and told him that the douche he had prescribed had given me no relief and that my suffering had in fact increased. He told me to call at his office the following day, which I did, and there, after making a more careful examination, he asked me my age. I told him I was 22 years old, whereupon he said, 'Mrs. Johns, you are a very young woman, but I want to tell you that you have a fallopian tumor that is growing over the mouth of the uterus', and that I would have to be operated upon at once; that as soon as the tumor should be removed I would be an entirely different woman. I consented to the operation. It was performed. A few days thereafter the defendant said I was in false labor pains. I had bearing down pains in the pelvic region. These pains grew worse and the defendant was sent for. When he called the nurse in attendance she told him that she thought 1 was going to miscarry. He made no reply but ordered some pills, and left word for them to be given to me as directed. He also ordered hypodermics, which were given to me often during the night, but I suffered intense pain and got no sleep until about 4 o'clock in the morning. In the morning about 9 o'clock the defendant informed me that I was trying to miscarry, that I was pregnant and about to feel life. I asked him why he had not performed an abortion, and told him that he had left me in such a condition that my child would be an idiot or deformed. He replied that he could not perform an abortion for it was against the law, and that he thought the operation would have no effect on the child. From that time I worried constantly about the effect the operation would have on the child. Two weeks after the operation defendant took me home from the hospital and carried me up the front stairs to my room. All this time I suffered intense pain, and the defendant told me he expected I would miscarry within nine or ten days. That was the last time he called. He rendered me no further assistance. The baby was born June 18, 1915. About one month after the operation I observed physical changes in my legs; varicose veins came out on them. This condition existed until the child was born, during which time on this account I could hardly walk and suffered pain and was required to wear elastic stockings. Shortly after the birth of the child I suffered from a hernia, and was operated upon for it. I suffered no accident and do not know what occasioned the rupture other than the bearing down exertions which occurred while I was at the hospital. A physician other than the defendant took care of me at the birth of my child. The baby died within three months after its birth. At one time after the incision I heard the defendant make a statement with reference to the operation in which he said he had made a mistake."