Polack v. Mansfield

By the Court, Wallace, C. J.: This is an action brought to recover the possession of a tract of land in the City and County of San Francisco, called Yerba Buena, or Goat Island. To the complaint, which is in the usual form, and not verified, the defendant pleaded the general issue. He also set up as a defense that the premises sued for are “the soil and freehold of the United States of America, and by the said United States of America owned in fee simple, and possessed through themselves and their agents, and that the said defendant, S. M. Mansfield, is, and during all times in said amended complaint mentioned was, in the possession of the said premises, and holding the same as the duly authorized agent under the authoi’ity and laws, of the said United States of America, and not otherwise.”

In his opening to the jury, -at the trial of the action, the counsel for the plaintiff stated that Colonel Mansfield, the defendant, was in the occupation of the demanded premises as an officer of the armies of the United States, occupying Goat Island for the purposes of a military camp or fortification, under the direction of the Secretary of War and the President of the United States. The Court below thereupon directed that a nonsuit be entered against the plaintiff", upon the ground that “ Colonel Mansfield simply holds under United States authority.” From the judgment of nonsuit thus rendered the plaintiff prosecutes this appeal.

The principal question to be determined concerns the nature of the occupancy of the defendant—whether or not he appears to be an occupant within the sense of the rule [39]authorizing and requiring actions for the recovery of lands to be brought against persons who withhold the possession from the plaintiff.

1. In general the action of ejectment in the Courts of this State can be maintained only against the party in possession of the premises; that is, against the person who withholds the possession from the plaintiffs. Such a person may not, indeed, be in the actual personal occupancy—he may not reside thereon, and may not have even personally entered thereon, and yet he may be in possession through the agency of mere servants and employés acting under his direction and" control; and as such person in possession he may be properly made a defendant in an action to recover the possession.

2. In general, too, a mere servant or employé, claiming for himself no interest in the premises, nor any right to their possession, but acting under the control of another, and only in that manner occupying and being personally upon the premises, cannot be sued in an action of ejectment brought to recover them, for such facts and circumstances only go to show that the employer, and not the servant or employé, is the party in possession, and, of course, answerable in that action. “ It will be readily seen that a mere servant or employé may, in one sense, have the occupation of the premises of which he has no control, and in which he claims no right; but his occupation is the occupation of his employer, within the meaning of that term, as employed when treating of the action of ejectment.” (Hawkins v. Reichert, 28 Cal. 534.)