Amador ledger. (Jackson, Amador County, Calif.) 1875-19??, 1909-04-16
SUPERIOR COURT
DECISION
In a plymouth Case

s. Wild, plaintiff, vs.. j. Noe, de-
PENDANT
Plaintiff commenced this action in
the Justices court. The complaint
contains allegations showing both u
forcible entry and foTclble detaineT.
lhe answer Is a general denial. The
defendant failed to appear at the trial
in the Justices court, and the snme
was had IN his absence and Judgment
rendered tor plaintiff for the sum of
S25. 90, damages and tor restitution of
the premises described in the COM
plant. Defendants appeal to this
court has been taken on questions of
both law and fact.
Under our statute evidence of title
in actions of torcible entry and de-
tainer is inadmissibe. The inquiry
in such cases is confined to the actual
peaceable possession of the plaintiff,
aud the unlawful OF foTcihle custer
or detention by the defendant
Giddings vs.. Land and Water Co.
80 Cal. 100.
Ihe plaintiff must show that she
was in the actual possession of the
property when 1t was invaded by the
defendant, since it is intrusion upon
actual possession as distinguished
statute was designed to afford a sum-
mary remedy.
Cummings VS.. Scott, % Cal. 527.
Barlow VS.. Burns, 40 Cal. 351.
Knowles VS.. The Crocker Estate Co.
l25 Cal. 265.
| 1t is not absolutely necessary that
the land be inclosed, but if not, it
must appear from other facts and cir
cumstances that plaintiff was eXercis
ing exclusive dominion and control
over IT..
Mccormick VS.. Sheridan II Cal. 256.
| Title or light to possession of real
etsate can not he tried in Justices
court.
Art. vi Sections 5 and IL Constitu-
tion of California.
| King VS.. Kutner l35 Cal. 81.
The jurisdiction of the superior
court on appeal over the subject
matter is purely appellate, and it has
no further jurisdiction than the
justice had.
Boyd VS.. Southern Cal. Ky. Go.
126 Cal. 573.
Nor is the Jurisdiction of the just
ices court or this court on appeal eX-
tended beyond the constitutional
limits, as claimed by plaintiff, be-
cause of the failure of defendant to
| file a verified answer in the Justices
court.
See King vs.. kutner l35 Cal. 81.
Plaintiff to prevail in this action
must show that she was in the actual,
peaceable possession of the property
and an unlawful or forcble custer or
detention, and unless this is shown
she can not have relief in this form
lof ,hA ho
owner and entitled to the possession.
McCauley VS.. Weller II Cal. 500.
Voll vs.. Hollis. 90 Cal. 573.
Kerr VS.. O'Keefe, l39 Cal 42l.
Having in view these legal prin-
ciples-the want of power in either
the Justices court, or this court,
under it's appellate jurisdiction to try
title to, or right of possession to real
estate, but the power solely to deter
mine whether plaintiff was in the
actual possession of the premises In
controversy at the time OF the entry
by defendant, we will proceed to
state the evidence, which shows:
That the property described in the
complaint is practically in the form
of a parallelogram, about 48 feet
wide by 50 feet in length opening IN
to Kerness Avenue OH the south side,
adjoining plaintiffs land on the
north, the lands of defendant on the
east and property formerly owned by
Il. S. Potter on the west. 1t is fenced
on the north, east and west sides.
Defendant entered upon the land, re-
moved the fence on the west end
placed it across the south side on
line with the north line of the alley
and proceeded to spade mp the place
for u garden. Such entry was made
without force and the land at the
time was vacant, unimprOved and
unoccupied. The only evidence of
any kind OF possession on the part of
plaintiff is testimony showing that
she occasionally drove COWS across
the land and sometimes wagons and
teams as a means OF egress and in
gIess from the alley to her land lying
north of the disputed strip. There
was evidence on the part of the de-
fendant that he often drove his wagon
upon the land and hitched and UNI
hitched his horses there and used it
for ingress and egress from the alley
to his property on the east of the
land. 1t was also proved at the trial
that demand was made by plaintiff
for the surrender OF the possession of
the premises for the period of five
days and of the refusal of defendant
so to do, but that his retention of the
+ possession was peaceably maintained.
The evidence presents no element
Of forcible entry for under section
1859 of the Code of Civil Procedure,
that can take place only when the
defendant breaks open doors, windows
or other parts of house, or by some
kind of violence, or circumstances of
terror enters upon real property or
after a peaceable entry turns out by
force, threats or menacing conduct
the party liz possession.