Giddings v. '76 Land & Water Co.

Paterson, J. This is a proceeding under the provisions of section 11G0 of the Code of Civil Procedure, relating to forcible detainer, to recover possession of a tract of land in the county of Tulare. The court gave judgment for plaintiff for the restitution of the land, nine hundred dollars damages, and costs of suit. Defendant appealed from the .judgment, and from an order denying its motion for a new -trial.

The second aud-fifth findings of the court are assailed by appellant, on the ground -that they are not supported by the evidence. The second finding is as follows: “ The plaintiffs herein, for and throughout the period of more than two years last past before the time of the entry by the defendants hereinafter mentioned, were, and continuously had been, and at the time of said entry were, in the open, peaceable, actual, and undisturbed possession and occupancy of -all the land described in the complaint.”

[98]Sibley, one of the plaintiffs, testified: “I have been in possession of the land in controversy for the past three or four years,'—putting it in crops, harvesting, etc. . . . . Giddings and I have had, as partners, the entire, exclusive possession of the land for the past three years, using all of it in the customary manner for raising wheat. . . . . No one ever disturbed our possession till the defendants took it, as complained of by us herein; we never consented to defendants taking possession; but on the contrary, they took possession against our will and without our consent.....We hauled hay from this land all through October and into November..... About the 13th of last November the defendants entered upon these premises.”

Giddings, plaintiff, testified: “ Myself and partner have farmed this land since 1884.....My partner— Sibley—and I were in full, peaceable possession up to the time the defendants took it from us.....On November 13th they (defendants) hauled lumber upon the premises in controversy and built a house. Anterior to that time no one had interfered with us.”

Farl, a witness for defendant, testified: “ They refused to deliver the hay; this was on October 2d. We then took teams, and went there and got the hay. This conversation took place near Mr. Giddings’s house.”

Shipe, one of the defendants, testified: “I first went upon this land on November 13th. I hauled wood there. I had a conversation wdth Mr. Giddings; told him I had the land rented; he told me I might unload the wood, but if I moved in I would be moved out; that they did not mean to fight or break the peace, but were in possession of the land and meant to keep it by all lawful means. 1 afterward went and took possession in their presence.”