There was proof of an actual possession of a part of the survey of the one hundred and sixty acres in 1851; that the boundaries were easily traced; that plaintiff was in possession in 1850--made improvements--erecteda house--fenced in two or three acres--and that the defendants came upon the land in 1852 and took the premises in dispute, being about two hundred yards from the house of plaintiff, and that the piece taken by defendants was within marks defining the line and boundaries of the one hundred and sixty acres. (Plume v. Seward , 4 Cal. R. p. 94.)
The defendants were trespassers, and possession gives a right of action against them, even if title is shown in another. (Bequette v. Caulfield , 4 Cal. 278.)
JUDGES: Mr. Justice Terry delivered the opinion of the Court. Mr. Chief Justice Murray concurred.
OPINION
TERRY, Judge
This is an action of ejectment, in which the plaintiff seeks to recover upon prior possession.
The facts, as disclosed by the record, are as follows: In 1850 the plaintiff entered upon a tract of land in El Dorado County; caused it to be surveyed, and the boundaries marked; built a house upon it, in which he resided, and enclosed and cultivated a small portion of the tract. In 1852 the defendant entered upon the land within the boundaries of the survey, but not within the actual enclosure of plaintiff.
" Possession is presumptive evidence of title, but it must be an actual bona fide occupation, a pedis possessio, a subjection to the will and control, as contradistinguished from the mere assertion of title, and the exercise of casual acts of ownership." (See Plume v. Seward , 4 Cal. 95.) A mere entry without color of title, accompanied by a survey and marking of boundaries, is not sufficient.
The statute of this State has provided a means by which the actual possession of a party may be extended to the limits of his survey, but the plaintiff not having shown a compliance with the provisions of the statute, cannot recover under it. (Sweetland v. Froe, ante 144.)
The Court erred in refusing a nonsuit. Judgment reversed.