Castro v. Tewksbury

Belcher, C. C. This is an action of forcible entrv. The premises involved are situated in Contra Costa County, and consist of a hundred acres of land, with a dwelling-house thereon.

The plaintiff recovered a verdict for restitution of possession and damages in the sum of seven hundred dollars, which were trebled in the judgment.

The defendant moved for a new trial, which was denied, and then appealed from the judgment and order.

Two questions only need be considered:—

1. The alleged entry, whatever may have been its character, was made on the ninth day of June, 1880, and was into the dwelling-house, and not upon any other part of the premises. Did the plaintiff at the time of the entry have such possession of the house as was necessary to enable him to maintain an action of this character ?

In this state, in order to maintain an action of forcible entry, the plaintiff must show:—

1. That he was in the actual and peaceable possession of the property entered upon;

2. That the defendant, by some kind of violence or circumstance of terror, entered into or upon the property, and so turned the plaintiff out and took and held possession of it himself; or,

3. That after making a peaceable entry the defendant, by force, threats, or menacing conduct, turned the plaintiff out and took the possession. (Code Civ. Proc., secs. 1159, 1172.)

Speaking of what was a sufficient possession to main[564]tain the action, this court said in Hoag v. Pierce, 28 Cal. 187:—

“If the possession of the plaintiff was not actual and of sufficiently long standing to become to a legal intent peaceable, then he was not in a condition to maintain his action.” In Treat v. Stuart, 5 Cal. 113, the court said: “The plaintiff in an action of forcible entry and unlawful detainer must show an actual, peaceable possession in himself at the time of the entry”; and in House v. Keiser, 8 Cal. 500, which was an action brought under the act concerning forcible entries and unlawful detainers, the court said that “a party who desires to avail himself of the summary remedy provided by this act must bring himself clearly within its provisions. He must show a possession, actual, peaceable, and exclusive; a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises, is not sufficient.”