House v. Keiser

8 Cal. 499

• Court: California Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Terry, C. J., delivered the opinion of the Court—Field, J., concurring.

The statute “ concerning forcible entry and unlawful detain-er,” is in derogation of the common law, and must be strictly construed. A party, therefore, who desires to avail himself of the summary remedy provided by this act, must bring himself clearly within its provisions. He must show a possession, actual, peaceable, and exclusive; a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises, is not sufficient.

The record in this case does not show such possession.in the plaintiff—on the contrary, the evidence raises a strong presumption that defendant’s entry was made before plaintiff’s right of possession accrued; and it is well settled that this action, being for injury to possession, can only be maintained by the person who was in actual possession at the time of the entry, and not by his grantee, or reversion.

Judgment reversed.