44 Cal. 36 | Cal. | 1872
This is an action brought to recover the possession of a tract of land in the City and County of San Francisco, called Yerba Buena, or Goat Island. To the complaint, which is in the usual form, and not verified, the defendant pleaded the general issue. He also set up as a defense that the premises sued for are “the soil and freehold of the United States of America, and by the said United States of America owned in fee simple, and possessed through themselves and their agents, and that the said defendant, S. M. Mansfield, is, and during all times in said amended complaint mentioned was, in the possession of the said premises, and holding the same as the duly authorized agent under the authoi’ity and laws, of the said United States of America, and not otherwise.”
In his opening to the jury, -at the trial of the action, the counsel for the plaintiff stated that Colonel Mansfield, the defendant, was in the occupation of the demanded premises as an officer of the armies of the United States, occupying Goat Island for the purposes of a military camp or fortification, under the direction of the Secretary of War and the President of the United States. The Court below thereupon directed that a nonsuit be entered against the plaintiff", upon the ground that “ Colonel Mansfield simply holds under United States authority.” From the judgment of nonsuit thus rendered the plaintiff prosecutes this appeal.
The principal question to be determined concerns the nature of the occupancy of the defendant—whether or not he appears to be an occupant within the sense of the rule
1. In general the action of ejectment in the Courts of this State can be maintained only against the party in possession of the premises; that is, against the person who withholds the possession from the plaintiffs. Such a person may not, indeed, be in the actual personal occupancy—he may not reside thereon, and may not have even personally entered thereon, and yet he may be in possession through the agency of mere servants and employés acting under his direction and" control; and as such person in possession he may be properly made a defendant in an action to recover the possession.
2. In general, too, a mere servant or employé, claiming for himself no interest in the premises, nor any right to their possession, but acting under the control of another, and only in that manner occupying and being personally upon the premises, cannot be sued in an action of ejectment brought to recover them, for such facts and circumstances only go to show that the employer, and not the servant or employé, is the party in possession, and, of course, answerable in that action. “ It will be readily seen that a mere servant or employé may, in one sense, have the occupation of the premises of which he has no control, and in which he claims no right; but his occupation is the occupation of his employer, within the meaning of that term, as employed when treating of the action of ejectment.” (Hawkins v. Reichert, 28 Cal. 534.)
3. But the rule which thus exempts the mere servant or employé of another from an action, presupposes that the employer may be sued, and that the wrongs of which the plaintiff complains may be redressed by resort to an action against the employer, as being the real party committing the ouster. In a case, therefore, where the employer is for
The principal case relied upon in opposition to these views, in fact the only one brought to our attention in which it is held that an action against an army officer in occupancy of premises cannot be maintained, is that of People v. Ambrecht, 11 Abbott Pr, R. 97. That was an action of ejectment brought by the State of blew York against Ambrecht (who was an Ordnance Sergeant of the army of the United States), for the recovery of a strip of land lying adjacent to Port Ontario. In the opinion in that case, the general rule already adverted to, that a mere servant of another has no such possession as will subject him to the action, is applied, and the qualification of the rule itself seems not to have been noticed. It is there held, too, that as the United States cannot be directly sued, so they cannot be indirectly sued in the persons of their agents or officers, by the owner of the estate, for its recovery, the converse of which had already been established, as we think, by the cases of Meigs v. McClung’s Lessee and Wilcox v. Jackson, supra, to which may be added the recent case of Grisar v. McDowell, 6 Wallace, S. C. U. S. 363, when the defendant McDowell was in the occupation as an officer of the army of the United States; commanding the military department of California, and, as such officer, entered upon the possession of the
Judgment reversed and cause remanded for a new trial.