Preston v. Kehoe (1860) · DecisionDepot

Preston v. Kehoe

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1860Published

Before: Baldwin

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Holding. The court held that in a forcible entry and detainer action regarding public land, the plaintiff must prove an actual forcible entry and demonstrate actual possession through an enclosure or equivalent act, rather than mere boundary marking.

Issues

Whether a forcible detainer alone is sufficient to prove a forcible entry.
Whether marking boundaries on public land without an actual enclosure constitutes sufficient possession to maintain a forcible entry and detainer action.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It cannot be held that a mere forcible detainer, apart from any question of prior possession, or the right to it, is equivalent to, or proves a forcible entry.”

“When the land is that of the Government, and the plaintiff has no further title than possession, that possession must be a possessio pedis. He must show an actual inclosure, or something equivalent”

Synopsis

To sustain forcible entry and detainer, plaintiff must have been in actual possession ; and, where the land is public land, not taken up under our Possessory Act, nor under the federal laws, such actual possession can be shown only by actual inclosure, or its equivalent. Merely putting down stakes, or marking out a boundary line is not sufficient.

In such action, proof of forcible detainer does not prove forcible entry.

Where the complaint avers forcible and unlawful entry, and that defendants forcibly detained the premises so unlawfully taken, forcible entry must be proven— the averment of detainer not being stated as an independent ground of relief.

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This was a proceeding of forcible entry and detainer for a tract of agricultural land in Marin county.

Among other instructions, the Court gave these on the trial:

“1. It is not necessary to prove force in the entry if the detainer is forcible.

“ 2. Forcible holding warrants the jury in presuming a forcible entry.

“ 4. It is not necessary to have had the land fenced, to constitute an actual possession by the plaintiff.

“ 5. Such a commencement of the fence as to vindicate (indicate ?) [318]his boundary, constituted an actual possession as much as if he had it finished.”

The land seems to have been public land, and is alleged to have been taken up by the plaintiff in a quantity of some six hundred acres or more. It was not taken up under the Possessory Act of the State.

The last instruction seems to be directly opposed to the decision of this Court in the same case, when it was here before. (See 10 Cal. 445.)

The other instructions are erroneous as they are stated. It cannot be held that a mere forcible detainer, apart from any question of prior possession, or the right to it, is equivalent to, or proves a forcible entry. If this were so, it would follow that this remedy might be taken whenever a party in possession of right of his own property, opposed force to the taking of that possession from him by one having no right of entry. The instruction does not suppose the case of an intrusion upon the possession of the plaintiff by the defendant without force, and then a maintaining of the possession so acquired by force, but seems to be independent of this state of facts, to hold that the mere exhibition by force on the part of the possessor is sufficient to render him amenable to the claimant of the possession, in this summary proceeding.

The complaint in this case seems to be for the forcible entry of the premises. It is true, in connection with the allegation of forcible entry, is the statement that the defendants forcibly detained the premises so unlawfully taken. Under this complaint, it was necessary to prove the forcible entry, the fact of the detainer being stated, not as an independent ground of relief, but as a mere continuation or consequence of the first act.

Preston v. Kehoe

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