
    PRESTON v. KEHOE.
    An action of forcible entry and detainer will not lie against a party claiming a right to land, who is not in the actual possession.
    Appeal from the County Court of Marin County.
    This was an action of forcible entry and detainer, originally commenced in a Justice’s Court, and appealed to the County Court. The cause was tried in the County Court, without a jury. A jury having been waived by the parties, plaintiff had judgment for restitution of the premises, etc. Defendant moved for a new trial, which was denied, and he appealed to this Court.
    
      W. Skidmore for Appellant.
    
      John Reynolds for Respondent.
   Terry, C. J., delivered the opinion of the Court

The evidence disclosed by the record is not sufficient to sustain the judgment.

It appears that about the first of June, 1857, plaintiff was in possession of certain land, to enclose which he had begun the construction of a fence; that defendants entered on the land within the contemplated enclosure, and built a house and corral, which house has never been occupied. That afterwards plaintiff proceeded to finish his fence, and that his possession had not been disturbed by defendants, or either of them, from the time when the house and corral were finished until the institution of this action, which was in September, 1857.

Under these circumstances, the action of forcible entry can not be maintained. Plaintiff's remedy for the injury complained of is in another form of action, and before a different tribunal.

Judgment reversed.  