Ingram v. Slayton

JAMES, J.

Plaintiff brought this action to recover possession of a certain tract of land in the county of Imperial, alleging that defendant had forcibly intruded upon his peaceable possession and “by force and by menacing the employees of plaintiff with a show of superior force entered thereon and in a forcible manner ejected plaintiff from the said land. ...” The court entered judgment - in favor of the plaintiff, from which this appeal is taken.

The main contention put forth by the appellant is that there is no evidence to sustain the finding of the court as to a forcible entry having been made, as such entry is defined in section 1159 of the Code of Civil Procedure. With this contention we must agree. The statement of the testimony heard is exceedingly meager; but in view of the fact that it was settled as correct by the trial judge, we must assume that it shows all the material evidence received in support of the issue made by the complaint.

(Richardson

v.

City of Eureka,

96 Cal. 443, [31 Pac. 458].) Counsel for respondent, outside of the record, suggest that the statement was prepared wholly by the appellant, and that it was served and offered for settlement just prior to an earthquake having occurred in Imperial County, and that presumably for that cause the counsel resident in that county, being other than the counsel who appear here, neglected to have the record show a complete statement of the testimony. Respondent is not entitled to have any consideration given to that suggestion. The bill of exceptions presents in abstract form the testimony of the plaintiff and the defendant. The plaintiff testified that he had been in possession of the tract of land, which was raw and brush-covered before he started to work upon it, since the 30th of September, 1912; that he had had several teams at work on the land, off and on, up to the 22d- of December, 1913, and that some of the land had been leveled and cleared; that he had an employee on the land on the 22d of December, 1913, but that he (the plaintiff) was at that time in the state of

[632]

Nevada; that when he returned—the time is not stated—he found the defendant on the land with between seven and eleven teams which were at work. He testified that he had not fenced the land nor watered it, nor cropped it; that when he first went upon the ground he put a stake at each corner, with a notice stating that he was making a claim to the property, and that when he put up these notices he found other notices, partially obliterated, already posted. Defendant testified that he had known the land since October, 1906, and on the 24th of December, 1909, he did some scraper work upon it and put up notices at each corner stating that he was the successful contestant and had acquired a thirty days’ prior right of entry to the land; that he plowed a furrow around the entire tract at that time in order to establish possession and show the public what his claim was; that he had never abandoned the land; that the first time he knew that plaintiff was on the land was in the latter part of October, 1912, and that in November, 1912, he had informed the plaintiff that he (the defendant) had a prior right of entry, won by a successful contest, and that he would assert his right when the land was restored to entry