Field, C. J. and Cope, J. concurring.

This was a proceeding of forcible entry and detainer for a tract of agricultural land in Marin county.

Among other instructions, the Court gave these on the trial:

The land seems to have been public land, and is alleged to have been taken up by the plaintiff in a quantity of some six hundred acres or more. It was not taken up under the Possessory Act of the State.

The last instruction seems to be directly opposed to the decision of this Court in the same case, when it was here before. (See 10 Cal. 445 .)

The other instructions are erroneous as they are stated. It cannot be held that a mere forcible detainer, apart from any question of prior possession, or the right to it, is equivalent to, or proves a forcible entry. If this were so, it would follow that this remedy might be taken whenever a party in possession of right of his own property, opposed force to the taking of that possession from him by one having no right of entry. The instruction does not suppose the case of an intrusion upon the possession of the plaintiff by the defendant without force, and then a maintaining of the possession so acquired by force, but seems to be independent of this state of facts, to hold that the mere exhibition by force on the part of the possessor is sufficient to render him amenable to the claimant of the possession, in this summary proceeding.

The complaint in this case seems to be for the forcible entry of the premises. It is true, in connection with the allegation of forcible entry, is the statement that the defendants forcibly detained the premises so unlawfully taken. Under this complaint, it was necessary to prove the forcible entry, the fact of the detainer being stated, not as an independent ground of relief, but as a mere continuation or consequence of the first act.

We cannot see, if the plaintiff had not fenced in this public land, but was merely preparing to do it, that this gives such actual possession to all the land within the lines by which he indicates the ground he designs to inclose, as warrants this process against one coming within a part not inclosed. Perhaps this would not be the case if the plaintiff came within the Possessory Act of this State, or if he made entry under the federal laws. But when the land is that of the Government, and the plaintiff has no further title than possession, that possession must be a possessio pedis. He must show an actual inclosure, or something equivalent, as evidence of an actual exclusive appropriation and dominion.. If this were not so, a man might take up ten thousand acres of the public land, by merely putting down stakes or making a line of boundary. Judgment reversed and cause remanded.