Gray v. Collins

42 Cal. 152 | Cal. | 1871

By the Court, Wallace, J.:

This is an action of forcible entry and detainer. The case was sent to a referee to take the testimony and to report a judgment. He found the facts, and his conclusions of law therefrom, and reported a judgment for the defendants, which was, thereupon, entered. The lot in controversy is situated in the City of San Francisco, between Sutter, Post, Webster, and Fillmore streets. In November, 1868, the plaintiff built a fence, which, with the house and fence of the occupant of a lot adjoining this on the west, made a complete inclosure of it. This fence which he then constructed was built of redwood posts, three by four inches, set in the ground at proper distances, with three fence boards nailed thereon in the usual manner, and also a fourth board nailed on the top of the posts, forming a cap—the whole constituting a substantial fence about four feet high. After thus inclosing the lot the plaintiff" caused some two dozen trees to be set out in line along two sides of it. He did not reside upon the lot, and had no house thereon. This state of things continued until about the middle of February, 1869, a period of between two and three months, when the defendants entered.

The first question to be considered is as to whether these facts establish in the plaintiff the peaceable, actual possession of the premises at the time the entry occurred. That his possession, such as it was, was peaceable, .there is no doubt, for until the entry of the .defeudauts, some two months after possession was -taken, pqthing had occurred to disturb it. Bor is there any doubt that it was actual in that sense which is contemplated by the statute of April, 1866, concerning forcible entries and unlawful detainers. Residence upon the premises is not indispensable to their actual possession—nor is cultivation necessary—nor improvement, as contradistinguished from the erection of fences or substantial barriers, marking the line of the premises over which control is asserted. The subjection of the premises to the exclusive will and control of the possessor by means of the exercise, by him, of visible and notorious acts of dominion over them, constitute actual possession. The acts thus visibly and notoriously done upon and about the premises, and their present effect as excluding the interference of all other persons, are the evidences through which the actual possession is made to appear. These acts of possession will necessarily depend somewhat upon the nature of the premises appropriated; the character of the soil; the uses to which it may be applied; and, in a city lot especially, sometimes will depend upon its situation, as being near to or remote from a rapidly improving locality. In this case there was the erection of a substantial fence, connecting with the adjoining house and fence so as to form a complete inclosure, and the planting of ornamental trees upon the premises—this amounted to cultivation, suitable to a city lot such as this, as appropriate to such lot as the seasonable plowing and sowing of agricultural lands would be, and, as an act manifesting control over the premises, equally significant.

The first count of the complaint is for forcible entry and detainer, under the Act concerning forcible entries, and detainers (Acts of 1865-6, p. 768), and the only question remaining to be considered concerns the character of the entry and detainer here, as being forcible or otherwise. The statute (section one) denounces all entries into premises, at the time in the actual peaceable possession of another, if made with violence and strong hand, whether such entry be by the actual breaking into the house situate on the premises, or by any kind of violence, or “ circumstances of terror.” Its aim is the conservation of the public peace, which it would prefer to the assertion of a mere private right, when made in such a manner as would be likely to provoke a breach of the peace.

The statute of this State now in force is evidently drawn with a design to avoid nice distinctions as to the amount of force necessary to constitute the entry a forcible one within its intent. “ Circumstances of terror” accompanying the entry, no less than “violence,” “strong hand,” “breaking open doors,” etc., are within the prohibition of the Act.

Here, the large number of men employed, the unusual time at which the entry was made, the hasty manner in which the possession was seized upon, the firing of small arms, etc., are “ circumstances of terror,” which leave no room to doubt that the entry was not of that peaceable character which the law permits to be made. Ho actual collision ensued in this instance, it is true, but the lawlessness of the conduct of Collins, the principal defendant, and of the other defendants who acted under his direction in making the entry, is not, on that account, less apparent. It tended strongly to produce a breach of the peace, and that it did not result in an actual collision is attributable to something else than to their deportment.

The judgment must be reversed, and the cause remanded, with directions to render judgment for the plaintiff upon the report of the referee, with costs of action, but without damages; and it is so ordered.

Mr. Justice Temple did not participate in the foregoing decision.