No. 2,450.

#### W. L. BARLOW, Respondent, v. SAMUEL H. BURNS, Appellant.

Pleading, in Eobcible Entey and Detainee. — A complaint in an action of forcible entry and detainer, which in the first count alleges the possession of the plaintiff, and the unlawful entry of defendant, without alleging a witholding, or a demand of the possession, or a refusal, or the use of force or menace; but in a second count stated as a “further, separate and distinct cause of action,” alleges possession of the defendant, a demand of possession by plaintiff, refusal, and forcible detainer by defendant, etc., is bad on demurrer.

Eobcible Entby and Detainee. — The remedy by the action of forcible entry and detainer is only given to those who are in actual possession, and cannot be sustained by merely showing a constructive possession, or a right of possession.

Appeal from tbe County Court of Monterey County.

Defendant demurred to tbe complaint, and tbe demurrer was overruled by tbe Court,

Tbe other facts are stated in tbe opinion.

*352
      *Gregory dt Webb,*for Appellant.

*The*complaint does not state facts sufficient to constitute a cause of action. *(Valencia*v. *Gouch,*32 Cal. 342; *Shelby*v. *Houston,*38 Id. 410.)

There is no allegation of demand. [Forcible Entry Act, Stats. 1865-6, p. 769, Sec. 3, Practice Act, Sec. 42; *More*v. *Del Valle,*28 Cal. 172),

Concerning possession under the Act we cite: *Preston*v. *Kehoe,*(15 Cal. 315); *Wright*v. *Whitesides,*(Id. 47); *Murphy*v. *Wallingford,*(6 Id. 145); *Garrison*y. *Sampson,*(15 Id. 93); *Plume*v. *Seward,*(4 Id. 95); *Wolfslcill*y. *Malajowicit,*(39 Id. 276.)

As to the character of the possession necessary to enable a plaintiff to maintain an action of this character, no citation of authorities would seem to be necessary, but we call attention to *Goryell*y. *Gain,*(16 Cal. 567); and to the cases cited herein from 15 Cal. Sep. and to *Boss*v. *Poadhouse,*(36 Id. 580); *Buel*y. *Frazier,*(38 Id. 693).

As to the entry which will be deemed forcible: *McMinn*y. *Bliss, (31*Cal. 122); *Thompson*v. *Smith,*(28 Cal. 527); *Frazier*y. *Hanlon,*(5 Cal. 156). And as to the forcible detainer within the purview of the Act: *Hodgson*v. *Jordan,*(29 Cal. 577); *Polaolc*y. *McGrath,*(25 Cal. 54); *McFvoy*v. *Igo,*(27 Cal. 375); *Thompson*v. *Smith, (supra).*

*Julius Lee*and *T. Beeman,*for Bespondent.

The complaint contains two counts. The first states the unlawful entry, and the second the detainer and the demand. *(Mecham*v. *McKay,*37 Cal. 162; *Morgans. Higgins,*Id. go;:

The plaintiff could not regain peaceable possession, and feared any attempt would end in violence and bloodshed; and the conduct of defendant was sufficient to excite plaintiff’s fears, and that is all that is required. *(O’Callahan*v. *Booth & Deal,*6 Cal. 65; *Morgans. Higgins,*37 Cal. 60.

Temple, J.-,

delivered the opinion of the Court:

This-is an action of forcible entry and detainer, in which *353judgment was rendered for plaintiff, and defendant’s motion for anew trial baying been overruled, an appeal is taken from tbe judgment and tbe order denying a new trial,

Tbe complaint is in two counts. Bn tbe first tbe plaintiff states bis possession and tbe-entry of defendant during bis absence, but does not allege a withholding of any character, or a demand of possession, or a refusal, or tbe use of any force or menace. In tbe second count be shows that tbe defendant being in tbe possession, plaintiff demanded that be surrender possession, which defendant refused to do, but still detains them by force, etc.

It is evident that tbe demurrer ought to havé been sustained, as neither count by itself states a cause of action. It is probable that tbe Court below regarded both counts of tbe complaint as one, as they were really intended to be; and if they could be so regarded in the-faceof tbe statement in tbe complaint, that tbe last count is a further, separate and distinct cause of action, such ruling would be correct.

Tbe evidence shows that tbe plaintiff, something more than a year before tbe commencement of tbe action, caused a tract of land said to be public land containing one hundred and forty-five acres, to be measured and staked off; that be bad a dairy bouse upon tbe land so staked off, and carried on tbe dairy business. Tbe extent of tbe dairy business carried on, or tbe number of cattle grazed, does not appear. It'was not shown that tbe land was subject to preemption, or that tbe plaintiff bad complied with tbe posses-sory act of this State, prescribing tbe mode of maintaining possessory actions on public land in this State, passed April 20, 1852, though, if these facts bad been proven, it would not have benefitted tbe plaintiff in this action. Tbe defendant went upon tbe land thus surveyed and staked off, a portion of which was entirely unoccupied, and of which tbe plaintiff is not shown to have bad any sort of possession whatever.

It is manifest that this action cannot be maintained on this state of facts. Even if tbe plaintiff has acquired rights with reference to this land by virtue of tbe pre-emption *354laws, be cannot assert them in tbis form of action. Tbis remedy is only given to-tbose wbo are in actual possession, and cannot’ be sustained by merely showing a constructive possession, or a right of possession.

.Judgment is reversed and cause remanded, with directions to sustain the demurrer to tbe complaint.