Barlow v. BurnsBarlow v. Burns
- Reporters:
- Before:
- Temple
delivered the opinion of the Court:
This-is an action of forcible entry and detainer, in which *353judgmеnt was rendered for plaintiff, and defendant’s motion for anew trial baying been overruled, an aрpeal is taken from tbe judgment and tbe order denying a new trial,
Tbe complaint is in two counts. Bn tbe first tbе plaintiff states bis possession and tbe-entry of defendant during bis absence, but does not allege a withholding of any character, or a demand of possession, or a refusal, or tbe use of any force or menace. In tbe second count be shows that tbe defendant being in tbe possеssion, plaintiff demanded that be surrender possеssion, which defendant refused to do, but still detains them by force, etc.
It is evident that tbe demurrer ought to hаvé been sustained, as neither count by itself states а cause of action. It is probable that tbe Court below regarded both counts of tbe complaint as one, as they were really intendеd to be; and if they could be so regarded in the-fаceof tbe statement in tbe complaint, thаt tbe last count is a further, separate and distinсt cause of action, such ruling would be corrеct.
Tbe evidence shows that tbe plaintiff, somеthing more than a year before tbe commеncement of tbe action, caused a trаct of land said to be public land containing one hundred and forty-five acres, to be measured and staked off; that be bad a dairy bouse upоn tbe land so staked off, and carried on tbe dаiry business. Tbe extent of tbe dairy business carried on, or tbe number of cattle grazed, does not appear. It‘was not shown that tbe land was subject to preemption, or that tbe plaintiff bad complied with tbe posses-sory act of this State, prescribing tbe mode of maintaining possessory actions on public land in this State, passed April 20, 1852, though, if these facts bad been proven, it would not hаve benefitted tbe plaintiff in this action. Tbe defendant went upon tbe land thus surveyed and staked off, a portion of which was entirely unoccupied, and of which tbe plaintiff is not shown to have bad аny sort of possession whatever.
It is manifest that this action cannot be maintained on this state of facts. Even if tbe plaintiff has acquired rights with reference to this land by virtue of tbe pre-emption *354laws, be cannot assert them in tbis form of action. Tbis rеmedy is only given to-tbose wbo are in actual possession, and cannot’ be sustained by merely shоwing a constructive possession, or a right of possession.
.Judgment is reversed and cause remanded, with directions to sustain the demurrer to tbe complaint.