Frazier v. Lynch

Citations

• 97 Cal. 370
• 32 P. 319
• 1893 Cal. LEXIS 548

Syllabus

<p>Ejectment — Possession of Defendant — Failure of Proof. — In an action to recover possession of land, where the evidence fails to show that the defendant was in possession at the commencement of the action, the plaintiff is not entitled to judgment.</p> <p>Id. — Trespass of Defendants — Lack of Possession — Verdict against Evidence. — Where the evidence given in such action on the part of the plaintiff has reference to certain acts done by the defendants on the land a few days before the action was commenced, and tends rather to show a trespass, or a prevention of the plaintiff from going thereon, than an actual possession thereof by the defendants, and it was testified on behalf of the defendants that from that time until the commencement of the action neither of them was in possession, or exercised any control of the land, and there is no evidence of any subsequent act by either of them with reference to the land, or that either of them was in possession of the land at the time of the commencement of the action, or for several days prior thereto, a verdict in favor of the plaintiff will be set aside as not sustained by the evidence.</p> <p>Id. — Instruction — Presumption of Possession from Trespass. —An instruction to the jury that if they should find from the evidence that, a few days before the commencement of the action, the defendants were upon the premises, or entered thereon and drove the plaintiff and her agents and employees off the premises, and prevented them from plowing the premises, by threats or force, such acts were acts of possession on the part of the defendants, and that if there was no evidence to the contrary, they might presume and find that the defendants were in possession at the time of the commencement of the action, is erroneous. Possession of the defendants must he shown as a fact, and cannot be inferred from the mere commission of a trespass by defendants upon the possession of plaintiff.</p> <p>Id. — Presumption as to Continuance of