Wilbur v. Cherry

California Supreme Court

Wilbur v. Cherry

39 Cal. 660, 1870 Cal. LEXIS 123

CourtCalifornia Supreme Court

DecidedJuly 1, 1870

DocketNo. 2,232

StatusPublished

Cited by1 cases

This text of 39 Cal. 660 (Wilbur v. Cherry) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilbur v. Cherry, 39 Cal. 660, 1870 Cal. LEXIS 123 (Cal. 1870).

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Opinion

Sprague, J.,

delivered the opinion of the Court.

There is no substantial conflict in the evidence tending to establish the character of plaintiffs’ possession at the date of the alleged forcible entry of defendant. Such evidence clearly establishes that the lands had never been inclosed by plaintiffs, or those under whom they claim, and at or within five days of the date of the alleged entry of defendant, plaintiffs had not such possession of the one hundred and sixty acres entered upon by defendant as would authorize them to maintain an action for forcible or unlawful entry and detainer.

Furthermore, there is an entire absence of evidence tending to establish that defendant exercised or threatened force of any character in obtaining or continuing his possession.

The judgment and order denying a new trial must, therefore, be reversed, and the cause remanded.

So ordered.

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Sprague, J.,

delivered the opinion of the Court.

There is no substantial conflict in the evidence tending to establish the character of plaintiffs’ possession at the date of the alleged forcible entry of defendant. Such evidence clearly establishes that the lands had never been inclosed by plaintiffs, or those under whom they claim, and at or within five days of the date of the alleged entry of defendant, plaintiffs had not such possession of the one hundred and sixty acres entered upon by defendant as would authorize them to maintain an action for forcible or unlawful entry and detainer.

Furthermore, there is an entire absence of evidence tending to establish that defendant exercised or threatened force of any character in obtaining or continuing his possession.

The judgment and order denying a new trial must, therefore, be reversed, and the cause remanded.

So ordered.

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Bluebook (online)

39 Cal. 660, 1870 Cal. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilbur-v-cherry-cal-1870.

Opinion

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