
    [No. 4852.]
    JOHN RAFFETTO and G. B. RAFFETTO v. ERCOLI FIORI et al.
    Tbespass on Land.—An action cannot be maintained for a trespass committed on land when the plaintiff is totally disseized, and the defendant is in the adverse possession thereof.
    Appeal from the District Court, Eleventh Judicial District, County of El Dorado.
    Prior to the 1st of August, 1870, one Benvonito was in the possession of and claiming to own a mining claim on the west half of the northeast quarter of section nineteen, township ten north, range twelve east, Mount Diablo base and meridian, in the Newtown Mining District, county of El Dorado. At the same time, the plaintiff G. B. Baffetto and others were in the possession of and claiming to own a mining claim adjoining and including the remainder of said subdivision. Benvonito absconded, being in debt to the defendants, who sued him and attached the claim, and on said day entered into possession of his claim, asserting a right thereto. They subsequently recovered a judgment against him by default. Soon after the 17th of August, 1870, the plaintiff G. B. Baffetto and the others, his co-tenants, commenced proceedings preliminary to obtaining a patent for their claim from the United States. When they came to make a survey, they included in the same the Benvonito ground. The defendants objected to the last-mentioned ground being included in the survey, and there was some negotiation about the plaintiffs obtaining a patent for all the ground and then deeding to the defendants the Benvonito ground upon receiving back the money they paid for the same in procuring the patent, but no definite conclusion was arrived at. The plaintiff and his co-tenants proceeded with their survey, and on the 28th of March, 1871, obtained a patent for their claim, including the Benvonito ground. The co-tenants of the plaintiff G. B. Baffetto, sold out to the plaintiff John Baffetto. The defendants continued in the possession of the Benvonito ground, working it and claiming title thereto up to the time of the trial of this action. This was an action of trespass quare clausum fregit, for working and taking gold from the Benvonito ground, commenced May 12, 1873. For equitable relief, the plaintiffs asked for an injunction. The court below gave the plaintiffs judgment for damages, and granted a perpetual injunction. The defendants appealed.
    
      P. Teare and George G. Blanchard, for the Appellants.
    
      George E. Williams, for the Respondent.
   By the Court:

The plaintiffs were not in possession of the premises in controversy, in May, 1873, when the action was brought. The fifth finding is, that the defendants were then in possession, and had been so in possession ever since August, 1870. The action is not brought to recover the possession of the premises, but is an action of trespass. The plaintiffs had judgment for one dollar, and also perpetually enjoining the defendants from working the premises or removing the gold or earth therefrom. "Where the plaintiff is actually dis-seized of the land, and the defendant is in the adverse possession thereof, an action of this character cannot be maintained.

Judgment reversed and cause remanded.  