Bank of California v. Taaffe

Hayne, C. Action of forcible entry and detainer. The court below gave judgment against the defendants, George Taaffe, Anna Taaffe, and John Finlay, and they appeal from the judgment and an order denying their motion for a new trial. Several points are made on their behalf.

1. It is said that no peaceable possession by the plaintiff was shown. The statute provides that one who has been “ in the peaceable and undisturbed possession ” for five days preceding the unlawful entry may maintain the action. (Code Civ. Proc., sec. 1160.) This provision is substantially the same as that of section 3 of the act of 1866. (See Laws 1865-66, p. 769.) The evidence shows that on June 24,1879, one Thompson, who was the agent of the bank, went to the premises which were then unoccupied, took off the locks on the doors, and put one Phillips, another employee of the bank, in possession. Phillips remained in possession for the bank until July 19th. On the evening of the day he went there, one of the defendants came there, and wanted to know by what authority he was there, and the reply was, that he was there by authority of Mr. Thompson for the bank. This seems to have been all that was said. There was no hostile demonstration. Except for this there was no moles[628]tatiou of any kind. Phillips’s testimony in this regard is as follows: “Q.—During the time you were there, did anybody say you were in unlawful possession, or deny your right to be there ? A.—No, sir. Q.—From the 24th of June to the 19th of July, .1879, did anybody come there and demand the property in any way, directly or indirectly? A.—No, sir; not at all. Q. — You were not molested or troubled in any way in your possession ? A.—No, sir.” There is no testimony in conflict with this.

The appellants contend that the possession was a mere “ scrambling ” possession, and cite the case of Bowers v. Cherokee Bob, 45 Cal. 498. In that case (which arose under the act of 1866), the plaintiff proved an undisturbed possession of more than five days; and the defendants offered to prove that, “about a month” before, they had attempted to enter, but were driven off by plaintiff by a hostile demonstration. The appellate court held that they ought to have been allowed to prove this, because it tended to show that the plaintiff’s possession was not “peaceable,” but was “ scrambling.” The theory of the decision seems to have been that the terrorizing effect of the hostile demonstration must be supposed to have continued down through the month. Wallace, J., dissented, on the ground that the occurrence “about a month” before was too remote to affect the character of the plaintiff’s possession. The general doctrine as to scrambling possession has been followed in other cases.