Buel v. Frazier

Sprague, J., delivered the opinion of the Court: This action is for a forcible entry and detainer, alleged against the defendants as having occurred since the Forcible Entry and Detainer Act of April 2, 1866.

The complaint contains but a single count, in which it is alleged that on the 11th day of December, 1868, plaintiff was “in the actual, peaceable and undisturbed possession, and for a long time prior thereto had been and now is entitled to the possession” of certain described lands situate in Carmel Valley, County of Monterey, and State of California. “ That while plaintiff was in such peaceable, quiet, exclusive, undisturbed and actual possession of said lands, the defendants, on the day and year last aforesaid, without the consent and against the will of plaintiffs, with force and violence, and strong hands, and multitude of people, unlawfully entered into and upon said lands and premises and ousted and ejected plaintiff therefrom, and since said date [694]have, by force of arms, by menaces, strong hands and threats of violence, wrongfully and unlawfully held, and still do hold .possession of said lands, although plaintiff had demanded possession and defendants refused to surrender the same to plaintiff.”

The answer of defendants specifically denies each allegation of the complaint, and affirmatively alleges that the lands described in the complaint are public lands of the "United States, and alleges that one of the defendants, on the said 11th day of December, 1868, entered upon a portion of the lands described in the complaint, specifically describing the lands upon which he so entered, under and by virtue of an Act of the Legislature of this State, prescribing the mode of maintaining possessory actions on public lands, etc. That the lands so entered upon by said defendant are lands to which the plaintiff has no right of property or possession, and no title to or interest therein, etc.

On the trial, which was before a jury, the facts established by plaintiff’s evidence were substantially as follows: That plaintiff, on the 11th day of December, 1868, was, and for some time theretofore had been residing within an enclosure of about eighty acres of the public lands of the United States; that during the time he so resided within this enclossure his stock ranged over the lands outside of the encloure, upon the lands in controversy, as well as other contiguous public unenclosed lands. The lands in controversy are outside of plaintiff’s enclosure, and are unenclosed public lands of the United States. On the afternoon of the 11th of December, plaintiff, with his hired man, rode up to a spring, situated from forty to fifty rods outside of his enclosure, when he saw defendant, Alexander Frazier, and three other men, sitting at the spring. Plaintiff then commenced to clear out the spring, when defendant, Alexander Frazier, said to him: “Buel, you need not trouble yourself about clearing out the spring, nor do any more work; this is my land.” Plaintiff asked Frazier how he came by it, to which he replied: “Like any honest man. comes by anything.” That was all that passed between the parties at that time. Frazier and his sons then left and went into a little house