Hicks

This was an action to recover the possession of land. There was a trial by jury, resulting in a verdict and judgment for the plaintiff, from which judgment the defendant appealed within sixty days, and brings up, as the record on appeal, the judgment-roll and a bill of exceptions.

The appellant contends that the court below erred in denying the defendant’s motion for a nonsuit. The ground of the motion was, that the evidence was not sufficient to show that plaintiff was in possession of the land at the time of the entry by the defendant. The title to the lands in controversy is vested in the state of California, and the only right in dispute in the case is the right of possession, as between the plaintiff and the defendant. In such cases the plaintiff need not prove title, but may maintain his case upon proof of prior peaceable possession under claim of right as against all but the true owner.

There was sufficient evidence to show that at the time the defendant entered, and for twelve or thirteen years preceding the entry, the plaintiff had been in the peaceable and exclusive possession of the land, using it as a pasturage for his stock, the only use for which it was adapted,…