W. L. BARLOW, Respondent, v. SAMUEL H. BURNS, Appellant, 40 Cal. 351

Temple, J.-, delivered the opinion of the Court: This-is an action of forcible entry and detainer, in which judgment was rendered for plaintiff, and defendant’s motion for anew trial baying been overruled, an appeal is taken from tbe judgment and tbe order denying a new trial, Tbe complaint is in two counts. Bn tbe first tbe plaintiff states bis possession and tbe-entry of defendant during bis absence, but does not allege a withholding of any character, or a demand of possession, or a refusal, or tbe use of any force or menace.

In tbe second count be shows that tbe defendant being in tbe possession, plaintiff demanded that be surrender possession, which defendant refused to do, but still detains them by force, etc. It is evident that tbe demurrer ought to havé been sustained, as neither count by itself states a cause of action. It is probable that tbe Court below regarded both counts of tbe complaint as one, as they were really intended to be; and if they could be so regarded in the-faceof tbe statement in tbe complaint, that tbe last count is a further, separate and distinct cause of action, such ruling would be correct.

Tbe evidence shows that tbe plaintiff, something more than a year before tbe commencement of tbe action, caused a tract of land said to be public land containing one hundred and forty-five acres, to be measured and staked off; that be bad a dairy bouse upon tbe land so staked off, and carried on tbe dairy business. Tbe extent of tbe dairy business carried on, or tbe number of cattle grazed, does not appear.

It'was not shown that tbe land was subject to preemption, or that tbe plaintiff bad complied with tbe posses-sory act of this State, prescribing tbe mode of maintaining possessory actions on public land in this State, passed April 20, 1852, though, if these facts bad been proven, it would not have benefitted tbe plaintiff in this action. Tbe defendant went upon tbe land thus surveyed and staked off, a portion of which was entirely unoccupied, and of which tbe plaintiff is not shown to have bad any sort of possession whatever. It is manifest that this action cannot be maintained on this state of facts.

Even if tbe plaintiff has acquired rights with reference to this land by virtue of tbe pre-emption laws, be cannot assert them in tbis form of action. Tbis remedy is only given to-tbose wbo are in actual possession, and cannot’ be sustained by merely showing a constructive possession, or a right of possession. .Judgment is reversed and cause remanded, with directions to sustain the demurrer to tbe complaint.