¶1This is an action of ejectment brought by Joseph Foot, as the administrator of José Ignacio Roze, deceased, against A. S. Murphy, to recover possession of certain lands of the decedent’s estate.
¶2The plaintiff obtained judgment for the recovery of the premises, one dollar damages, and the costs of the *105action; from that, and an order denying him a new trial, the defendant has appealed.
¶3Neither party to the action claimed or showed any paper title to the premises, but the plaintiff relied upon the right of prior possession, from which he claimed to have been unlawfully ousted by the defendant, to sustain his contention.
¶4It is contended by the defendant that the findings do not sustain the judgment.
¶5They show substantially that the plaintiff’s decedent entered upon the land, and took possession of the same ten years prior to the first day of April, 1883; that this possession was continued by the plaintiff as administrator until his ouster by defendant; that the land was subjected to the will and dominion of the decedent, and said administrator, for the purpose to which it was adapted, that is, the grazing of cattle; that the former inclosed it with a fence on all sides save that on which he owned other land, which other land was used by them for grazing, in conjunction with that in dispute; that they excluded all other persons from using it, and exclusively enjoyed its advantages for grazing purposes, by means of the fence and herders keeping their own cattle upon the • land and other cattle away from it; which state of facts was sufficient to warrant the judgment. (Sheldon v. Mull, 67 Cal. 299, and cases cited.)
¶6It is true that the defendant claimed a prior possession, and showed that at one time, anterior to that of the plaintiff, he had such possession, but the court found that such possession had been abandoned before that of the plaintiff commenced, and we think the evidence justified the finding.
¶7The finding of abandonment appears under the heading of “ Conclusions of Law,” but it is evidently a mere finding of a fact.
¶8Perhaps it is unfortunate that it, as well as other findings strictly of facts, appear under that same heading, but that does not constitute them conclusions of law.
¶9*106We are of opinion, also, that the court found upon all the material issues raised by the pleadings.
¶10The defendant also assigns for error the refusal of the court to allow Jamison, a witness, to answer this question: “Do you know why Anderson left?”—claiming that its answer would tend to show defendant’s claim of prior possession. But we cannot agree with him.
¶11It was not in issue or claimed that Anderson' had any title, or transferred any to the defendant, and the former could not transfer any right to the latter by a mere abandonment of the premises.
¶12The testimony of Domingo Boze, the brother of the' deceased, as to conversations between himself, the former, and the defendant, were strictly in rebuttal-of the testimony which the defendant had introduced, tending to show that the deceased had admitted the former’s prior right, and disclaimed any on his own part.
¶13The question put' to that witness, “ Did your brother ever say he claimed the lands north of the gulch? ” was answered by him in the negative, hence no detriment accrued to the defendant.
¶14The answer that he gave, viz., “He pointed out his inclosure,” was not objectionable.
¶15Upon the cross-examination of the same witness, this question was asked: “Was not the land in dispute occupied by another person when you say your brother and Murphy had their conversation?” It was objected to, and the objection sustained, and of that also the defendant complains, but, as we think, without sufficient grounds.
¶16This was an action brought solely on the prior possession of the plaintiff, against the defendant as a mere trespasser, and the latter therefore could not justify his ■wrongful act by showing title in another. (Bird v. Lisbros, 9 Cal. 1; S. C., 70 Am. Dec. 617.)
¶17The testimony of Mr. Briggs, and the documentary evidence introduced through him, were admissible as *107tending to rebut the defendant’s evidence, which went to show an acknowledgment of his prior right by the deceased.
¶18The defendant also contends that the court should have allowed him to have been heard to testify in denial of the evidence given by Domingo Roze as to the conversation detailed by the latter in rebuttal.
¶19If it appeared satisfactorily from the record that this evidence had been new matter, we should say that the point was well-taken; but it was not new matter, being in rebuttal of the claim which the defendant had during the trial, by evidence before that time advanced, that the deceased had admitted in a conversation that his right was subordinate to that of the defendant.
¶20No prejudicial error appearing by' the record, the judgment and order should be affirmed.
¶21Seabls, C., and Belcheb, C. C., concurred.
¶22For the reasons given in the foregoing opinion, the judgment and order are affirmed.
¶23Thobnton, J., dissented.