Murphy v. Wallingford , 6 Cal. 648 ( 1856 )

Mr. Justice Terry delivered the opinion of the Court.

Mr. Chief Justice Murray concurred.

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 con- . trol, 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, July Term, 1856.

The Court erred in refusing a non-suit. Judgment reversed.