Fogarty v. Kelly

By the Court, Sawyer, J. This is an action under the “ Act concerning Forcible Entries and Unlawful Detainers.”

The premises in controversy are three hundred and odd acres of agricultural lands in Napa County—the north half of a larger tract of upwards of six hundred acres. The whole tract has a fence on three sides, and Napa Creek on the fourth side, forming an inclosure of the entire tract. The plaintiff, Fogarty, claims the north half, being the premises in dispute, and James GHassford the south half. Part of the way between Fogarty and GHassford there is a division fence, and part of the way a furrow. Fogarty appears, from the testimony, to have cultivated the premises for three years. At the time of the alleged entry there was a volunteer crop growing on the premises. It does not appear that Fogarty resided or had any building on the land in dispute. GHassford testified that on the morning of the 5th of June, between four and five o’clock, he saw two cabins of the defendants on the half belonging to Fogarty; that he heard the sound of hammers, and went up to the stable loft and saw the cabins; that he afterwards informed Fogarty that the cabins were there. This is the only testimony as to the orignal entry. There was testimony tending to show that defendants, at some subsequent time, avowed an intention to keep possession, and that they actually did remain in possession. There was also evidence tending to show that they intended to maintain their possession by force if necessary.

On this state of the evidence, the Court, at the request of the plaintiff, and under exception on the part of the defendants, gave the following instruction, viz: “If the jury find that the defendants entered upon the premises in the night time, ' during the hours of sleep, while plaintiff was in the actual and [319]peaceable possession of the same, and that they took possession and avowed the intention to keep possession, and actually do keep possession, it is sufficient evidence of force to maintain the action of forcible entry and detainer, and the jury should find for the plaintiff.” The giving of this instruction is assigned as error.

The instruction, in the form given, is liable to mislead a jury. It is altogether too loose in its terms, when considered in connection with the testimony in the case. A naked avowal of intention to keep possession, and actually keeping possession, do not, necessarily, amount to force, or a threat of force. Such avowal should have some relation to a demand of the possession by the party claiming to have been ousted, and it should, at least, be accompanied by some act or word tending to show an intent to maintain the possession by force, and these qualifications should be embraced in the instructions. The plaintiff relies upon the case of Scarlett v. Lamarque, 5 Cal. 63, to support this instruction. The language of the Court in that case is very similar to that in this instruction; but it is applied to an entirely different state of facts, as shown by the record, although it does not appear in the published report of the case. Scarlett was in possession of a quartz mill, under a lease; the mill had been run until one or two o’clock in the morning, when the employés of the plaintiff closed up and retired to rest in the mill. Before daylight, and while the hands were actually sleeping in the mill, and the products of the last day’s work were still in the amalgamating tubs, the defendants— some five or six in number—entered the mill, took possession, commenced tearing down the stamps under pretense of making-repairs, and retained possession against the repeated demands and protest of the plaintiff and, his employés. On this state of proofs, the Court, at the close of plaintiff’s testimony, on defendant’s motion, granted a nonsuit, and plaintiff appealed. The question was whether there was sufficient testimony to entitle the plaintiff to have his case submitted to the jury. The late Supreme Court held that there was, reversed the