Opinion
Appeal from the County Court, City and County of San Francisco.
COUNSEL:
First --The proof of prior possession by the defendants constitute no defense in this action. (Hodgkins v. Jordan, 29 Cal. 578; Owen v. Doty, 28 Cal. 505; Davis v. Perley, 30 Cal. 632.)
Second --The gist of this action is the forcible entry. (McMinn v. Bliss, 31 Cal. 123; Preston v. Kehoe, 15 Cal. 318; Roff v. Duane, 27 Cal. 565.)
M. A. Wheaton, for Appellant.
Byrne & Freelon, for Respondents.
No brief for respondents on file.
JUDGES: Rhodes, C. J., delivered the opinion of the Court. Sprague, J., expressed no opinion.
OPINION
RHODES, Judge
That proof of prior possession of the premises in controversy, in an action of forcible entry and detainer, does not constitute a defense to the action, is so well settled that a citation of authorities is unnecessary.
The Court instructed the jury " that if they believed from the evidence that the defendants had possession of the premises before and at the time the plaintiff went there to build his house, and that the premises were inclosed by a fence sufficient to mark the boundaries, and Brown built his house and fence within said inclosure, then I charge you, as law, that the defendants had a right, three or four weeks, or even six or twelve weeks afterward, to tear down and remove Brown's house and fence, if they could do so without danger of committing a breach of the peace." The plaintiff proved the requisite possession on his part to entitle him to maintain the action. The possession of the defendants prior to or at the time of the entry of the plaintiff, does not, as we have seen, constitute a defense to the action, and therefore will not justify or excuse a forcible entry. The other branch of the instruction is equally faulty. The tearing down and removal of the house and fence of the plaintiff while he was in possession, as shown in this case, amounted to a forcible entry; and whether it caused a breach of the peace or not, it is clear that it tended to such a result. The law prohibits a forcible entry, even by the person entitled to the possession, for the reason, among others, that it necessarily tends to a breach of the peace.
Judgment reversed and cause remanded for a new trial.