
    [No. 3,544.]
    W. W. CRANE v. D. GHIRARDELLI et al.
    Possession which Makes Defendant Liable in Ejectment.—The possession to be shown in the defendant, in order to maintain ejectment against him, need not be actual as contradistinguished from constructive.
    Appeal from the District Court of the Third Judicial District, County of Alameda.
    The Court below found, in addition to the finding in the opinion, that “ the plaintiff has proved a right of entry to an undivided interest in the land in controversy derived from parties who had been in the prior actual possession of it.” This case was submitted on the same briefs as Tubbs v. Ghirardelli, ante, p. 231. The plaintiff had judgment in ejectment, and the defendants appealed.
    The other tacts are stated in the opinion.
    
      Campbell, Fox Campbell, for Appellants.
    
      McCullough $ Boyd and F. B. J. W. Mastieh, for Respondent.
   By the Court:

This was an action of ejectment, and judgment below passed for the plaintiff. .The findings are as follows:

The defendant, Ghirardelli, claimed to be in the possession of the same at the commencement of this action, and exercised acts of ownership over it, no one being in the actual possession of it. And he made this claim and exercised these acts adversely to the plaintiff, and without right or title in himself.”

It is argued for the appellant that finding that he was not in the actual possession of the premises is necessarily fatal to the judgment below. We do not think so. The possession to be shown in the defendant in an action of ejectment need not be actual, as contradistinguished from constructive, in its character. (Noe v. Card, 14 Cal. 609.)

Under the rule concerning implied findings, adverted to in Tubbs v. Ghirardelli, ante, p. 231, the judgment must be affirmed, and it is so ordered.  