Thompson v. Smith

By the Court,

Sawyer, J. This is an .action under the Act relating to forcible entries and detainers, to recover possession of one hundred acres of land in the vicinity of the City of San Francisco. The answer denies the forcible entry and detainer charged, and denies possession of the whole, but admits possession of a part of the demanded premises, describing said part by metes and bounds, and claims that said possession was quietly, peacefully and rightfully obtained.

Plaintiff alleges the monthly value at fifty dollars.

The Court found a forcible entry and forcible detainer, and two hundred and fifty dollars damages. Judgment was thereupon entered for restitution of the demanded premises, and for the damage found.

There was no forcible entry at the time of the interview with Thompson, for, according to all the testimony, defendant’s entry had taken place several days before, and he was then actually in possession. If there was any forcible entry, it was at the time of the transactions between defendant and Weeks; and admitting that there was force at that time, it is not clear that the entry had not before that time been peaceably accomplished. The defendant had himself actually been upon the premises several hours manifesting an intent to hold the property. Weeks found him upon the premises waiting [531]for his teams and lumber an hour before the alleged force was employed, and at that time he informed Weeks that he claimed the premises under a lease from Bayerque, and was going to put up a house. It is at least doubtful whether the acts at the time the lumber arrived constituted a forcible entry within the meaning of the Act. But however this may be, there is no shadow of testimony to extend the entry of defendant and ouster of plaintiff to the whole premises described in the complaint. Plaintiff retained possession of his cabin. His servants were not turned out of that, or in any respect molested in its enjoyment. Such is the plaintiff’s testimony, and there is nothing to the contrary. Nor does his possession, such as it was, appear to have been disturbed in any of the other portions of the hundred acres claimed, beyond the immediate vicinity of the particular spot where defendant erected his house. For aught that appears, plaintiff is still in the quiet and undisturbed possession of all besides. Nor does it appear to what extent defendant claimed possession under his lease. The evidence which the defendant himself offered on that point was ruled out on objection of plaintiff. The complaint alleges damages resulting from an entry upon, and detention of, the whole of the land claimed. The testimony as to the value of the premises and damages is applicable to the whole, and the finding and judgment award damages for the detention, as well as restitution of the whole. Clearly, if the plaintiff was only ousted from a part, he was not entitled to recover damages for the detention of the whole. In these respects there is no conflict in the evidence, and it does not support the findings. A new trial must, therefore, be had.