Gray v. Collins

By the Court, Wallace, J.: This is an action of forcible entry and detainer. The case was sent to a referee to take the testimony and to report a judgment. He found the facts, and his conclusions of law therefrom, and reported a judgment for the defendants, which was, thereupon, entered. The lot in controversy is situated in the City of San Francisco, between Sutter, Post, Webster, and Fillmore streets. In November, 1868, the plaintiff built a fence, which, with the house and fence of the occupant of a lot adjoining this on the west, made a complete inclosure of it. This fence which he then constructed was built of redwood posts, three by four inches, set in the ground at proper distances, with three fence boards nailed thereon in the usual manner, and also a fourth board nailed on the top of the posts, forming a cap—the whole constituting a substantial fence about four feet high. After thus inclosing the lot the plaintiff" caused some two dozen trees to be set out in line along two sides of it. He did not reside upon the lot, and had no house thereon. This state of things continued until about the middle of February, 1869, a period of between two and three months, when the defendants entered.

The first question to be considered is as to whether these facts establish in the plaintiff the peaceable, actual possession of the premises at the time the entry occurred. That his possession, such as it was, was peaceable, .there is no doubt, for until the entry of the .defeudauts, some two months after possession was -taken, pqthing had occurred to disturb it. Bor is there any doubt that it was actual in that sense which is contemplated by the statute of April, 1866, concerning forcible entries and unlawful detainers. [157]Residence upon the premises is not indispensable to their actual possession—nor is cultivation necessary—nor improvement, as contradistinguished from the erection of fences or substantial barriers, marking the line of the premises over which control is asserted. The subjection of the premises to the exclusive will and control of the possessor by means of the exercise, by him, of visible and notorious acts of dominion over them, constitute actual possession. The acts thus visibly and notoriously done upon and about the premises, and their present effect as excluding the interference of all other persons, are the evidences through which the actual possession is made to appear. These acts of possession will necessarily depend somewhat upon the nature of the premises appropriated; the character of the soil; the uses to which it may be applied; and, in a city lot especially, sometimes will depend upon its situation, as being near to or remote from a rapidly improving locality. In this case there was the erection of a substantial fence, connecting with the adjoining house and fence so as to form a complete inclosure, and the planting of ornamental trees upon the premises—this amounted to cultivation, suitable to a city lot such as this, as appropriate to such lot as the seasonable plowing and sowing of agricultural lands would be, and, as an act manifesting control over the premises, equally significant.