Ross v. Roadhouse

By the Court, Sawyer, C. J. : This is an action for forcible entry and detainer under the Act of 1866, in which plaintiff' had a verdict and judgment. The complaint and judgment for possession embrace six forty-acre tracts of land. A motion for new trial having been made by defendant and denied, defendant appeals.

The objection of the respondent that it does not appear when the original proposed statement was filed, should have been taken in the mode prescribed by Rule XIII, and before submission on the merits; otherwise, it will not be noticed. [582]The brief statement of the substance of the evidence bearing upon the point specified, instead of setting it out in full, relevant and irrelevant, in the precise language of the witnesses, is proper.

The testimony shows that the defendant, Roadhouse, .fourteen years prior to 1867, entered upon, and completely inclosed a tract of land in Monterey County, built a dwelling house and other improvements on it, and that, with his family, he has ever since resided thereon, farming, cultivating, and improving the same, “ being in the actual and exclusive possession of the whole thereof, save that upon a portion thereof the stock of one Wren and one Preston ran in common with that of said defendant; that on or about the 6th day of November, 1866, plaintiff entered within the aforesaid general inclosure about or after sundown of that day;”’ that on the next morning defendant informed plaintiff that he was a trespasser, at the same time pointing out his general inclosure, and requested him to leave, and several times after-wards directed him to leave, which plaintiff' declined to do, but remained on the premises, living for a time under a wagon cover for a tent. Plaintiff afterwards commenced building a house and moved into it, and, although not completed, he was living in it with his wife on the 9th of December, 1866, when “a company of men, among whom was defendant, tore down the said incompleted house, and put the furniture in the public highway;” that “there were weapons, such as pistols, shotguns, and a sword in the possession of said company of men.” “ That said lots named in complaint were each forty-acre lots; that they were not inclosed in any manner save that they were within the general inclosure aforesaid, nor were they in any manner segregated from other lands in said inclosure; that plaintiff claimed to be in possession of one hundred and sixty acres; that after he first went there he had the premises surveyed by a United States Surveyor.” This is the evidence to show that the plaintiff “was peaceably in the actual possession at the time of forcible entry” of the six forty-acre tracts of land claimed and recov