of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible. entry, or was entitled to the possession at the time of the forcible detainer.115 The plaintiff must show that he was "peaceably in the actual possession at the time of the entry," and peaceable possession will not be presumed from actual possession.116 2945. When an action can be maintained. S. was in possession of a quartzmill under a lease. The mill had been run until one or two o'clock in the morning, when the employees of the plaintiff closed up and retired to rest in the mill. Before daylight, and while the hands were actually sleeping in the mill, and the products of the last day's work were still in the amalgamating tubs, the defendants some five or six in number — entered the mill, took possession, commenced tearing down the stamps under pretense of making repairs, and retained possession against repeated demands and protest of the plaintiff and his employees. It was held that these facts constitute sufficient evidence of force to maintain the action of forcible entry.' Where in ejectment by B. against K., a writ of restitution was issued on judgment in favor of B., and under it K. was removed from the land by the proper officer, and W. put in possession as agent of B., and then, about a month afterwards, W. leased the premises to H., it was held that K. can not maintain forcible entry and detainer against H., the lessee, on the ground that the act of the officer in removing and putting W. in possession was tortious, because not justified by the writ.118 117 § 2946. When it can not be maintained. Facts which might constitute a mere trespass upon property have never been held to sustain the action of forcible and unlawful detainer.119 So of one who enters upon land for the purpose of cutting and taking away grass or crops growing thereon, without any intention 115 Cal. Code Civ. Pro., § 1172; and see § 2938, ante. 116 Warburton v. Doble, 38 Cal. 619; see, also, Cal. Code Civ. Pro., § 1172. 117 Scarlett v. Lamarque, 5 Cal. 63; commented on in Fogarty v. Kelly, 24 id. 319. 118 Kennedy v. Hamer, 19 Cal. 375; Janson v. Brooks, 29 id. 214. 119 Frazier v. Hanlon, 5 Cal. 156; Merrill v. Forbes, 23 id. 379. of taking possession of the land, and without residing thereon. 120 Where one person has a house upon a portion of a tract of land of one hundred acres which he is occupying, and another person enters upon another part of the tract and erects a house, without doing anything further, this act does not constitute a forcible entry upon and detainer of the whole tract.121 A sheriff is not guilty of a forcible entry, if, acting in good faith, by virtue of a writ of restitution, he removes from the premises a person against whom the writ does not run, and who is not in privity with any one against whom the writ does run.122 2947. For forcible entry and forcible detainer. [TITLE.] Form No. 662. The plaintiff complains, and alleges: First For a first cause of action: I and II. [As in preceding form.] Second For a second cause of action: I. That the said defendant, by force and with a strong hand [or by menaces and threats of violence, stating the facts], unlawfully holds and keeps possession of said land and premises in the first cause of action mentioned, and has so held and kept possession of the same at all times since the said day of 18.., contrary to the form of the statute. II. That the plaintiff was on the day last aforesaid, and still is, entitled to the possession of said lands and premises. III. That in consequence of said acts, the plaintiff has been deprived of the rents, issues, and profits of said lands and premises, to his damage. .. dollars. [DEMAND OF JUDGMENT. 1123 2948. For forcible detainer under first subdivision, section 1160 of the California Code of Civil Procedure. was well entitled to the possession of the following described premises [describe the same] and on that day the defendant 120 Merrill v. Forbes, 23 Cal. 379. 121 Thompson v. Smith, 28 Cal. 527. 122 Janson v. Brooks, 29 Cal. 214. 128 The second cause of action is here alleged as an incident to the forcible entry, and to recover rents and profits. peaceably [or otherwise, according to the fact], but without right so to do, entered and took possession of the same, and from that day hitherto has kept, and still holds and keeps, possession of the same unlawfully and by force [or by menaces and threats of violence, stating the same], contrary to the form of the statute in such case made and provided. II. [If any special injury has been done the property by the defendant, allege the same, and state amount of damages.] III. That in consequence of the said unlawful acts of the said defendant, the plaintiff has been deprived of the rents issues, and profits of said land and premises ever since said ... day of § 2949. For forcible detainer, under the second clause of section 1160 of the California Code of Civil Procedure. [TITLE.] Form No. 664. The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, and for five days previous thereto, he was in the peaceable and actual possession and occupation, and entitled to the possession of all that certain piece or parcel of land [describe the premises], and of the dwelling-house, barns, and sheds thereon. ........ day of .... ..... II. That on the 18.., in the night-time [or during the absence of the plaintiff], the defendant unlawfully entered upon said lands and tenements, and took possession of the same. III. That on the ........ day of 18.., at ..., the plaintiff made a demand in writing upon the defendant, to deliver up to the plaintiff the possession of said land and premises held as aforesaid, but the defendant neglected and refused for the period of five days after such demand, and at all times since, to surrender the possession of the same to the plaintiff, and still holds and continues in possession of said premises, against the form of the statute. IV. That in consequence of said acts, the plaintiff has been deprived of the rents, issues, and profits of said land and premises, to his damage. ... dollars, and has sustained damage for waste and injury committed thereon in the sum of .. dollars. [DEMAND OF JUDGMENT.] 124 See 2941, ante. § 2950. Actual possession occupation of premises. Where plaintiff had been in the peaceable and quiet possession and use of the premises, through his agent and by his tenants, and the building being unrented, had locked the door and taken the key to his office, he was in the "actual possession" of the premises, within the Statute of Forcible Entry and Detainer.125 The occupant of lands is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands or tenements.126 The true intent and meaning of the legislature in the use of the word " occupant is found in the words "peaceable and undisturbed possession." And the plaintiff is not required to show possession which differs at all from the possession which he would have to show were he seeking relief in an action for forcible entry.127 never been considered that an actual residence, a personal presence, was in all cases indispensable to actual possession. On the contrary, actual possession as much consists of a present power and right of dominion as an actual corporal presence in the house. 128 Under this rule the plaintiff might have had “ a peaceable and undisturbed possession," notwithstanding the fact that he did not reside in the house.129 130 It has § 2951. Joinder of and distinction between causes of action. A cause of action in unlawful detainer can not be joined with one for forcible entry or for forcible detainer.13 And it would seem that a cause of action for forcible entry could not be joined with one for forcible detainer. 131 F. brought an action against K. for an unlawful entry and forcible detainer. F. did not reside on the premises, and his only possession consisted in an inclosure and cultivation. K. went within the inclosure in the night-time, erected a cabin, and, at some subsequent period of time, declared he would keep possession by force. The court instructed the jury that if they found "that the defendant entered upon the premises in the night-time, during 125 Minturn v. Burr, 16 Cal. 107. 128 Cal. Code Civ. Pro., § 1160; see Bank of California v. Taaffe, 76 Cal. 626; Tivnen v. Monahan, id. 131. 127 Shelby v. Houston, 38 Cal. 410. 128 Minturn v. Burr, 16 Cal. 109. 129 Shelby v. Houston, 38 Cal. 410. 130 Polack v. Shafer, 46 Cal. 270. 131 Treat v. Forsyth, 40 Cal. 484; but see Shelby v. Houston, 38 id. 410. the hours of sleep, while the plaintiff was in the actual and peaceable possession of the same, and that he took possession and avowed the intention to keep possession, and actually did keep possession, it was sufficient evidence of force to maintain the action of forcible entry and detainer, and the jury should find for plaintiff;" it was held that the instruction was erroneous, as applied to the testimony in this case, because that portion of it relating to K.'s intention to keep possession made no reference to any demand on the part of F. for possession, and because the instruction was framed as though it related to a question of forcible entry, and not forcible detainer. 132 § 2952. Forcible detainer, what is. The declaration of the defendant to the plaintiff that he will not go off the premises unless put off by force or by law, does not constitute a forcible detainer. 133 The mere surmise of a person, that if he attempts to regain possession force will be used to prevent it, is not enough to show a forcible detainer; but an attempt must be made to gain possession, and either force or threats of force used to resist it.134 P. had possession of a lot of land, by having it inclosed with a fence, but did not reside on it, nor have a house on it. M. and D. entered into possession, and built a house on the premises and moved into it. Five days afterwards an agent of P. went to the premises and told M. and D. that he had come there to take possession for P. They replied that it would be very foolish to give up the lots after making improvements on them; that they would not leave, and that it would take a pretty good force to put them off; that they had paid their money for the lots, and they would be d-d if they would leave. To another agent of P., M. and D. used substantially the same language; it was held that this did not amount to a forcible entry or unlawful detainer; that such acts amounted merely to a trespass and ouster of P., for which ejectment was the proper remedy.135 A naked avowal of an intention to keep possession, and actually keeping possession, do not necessarily constitute such force or threat of force as to render a detainer forcible where there has been an unlawful entry, unless such avowal is made in answer to a demand for posses 132 Fogarty v. Kelly, 24 Cal. 317. 133 Hodgkins v. Jordan, 29 Cal. 577. 134 Id. 135 Polack v. McGrath, 25 Cal. 56. |
