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For possession, there must be an actual bona fide occupation, a possessio pedis, a subjection to the will and control, as contradistinguished from a mere assertion of title, and the exercise of casual acts of ownership, such as recording deeds, paying taxes, etc.
This was an action of ejectment to recover a lot in the City of Marysville. On the trial, the claimant proved that the possessors, from whom he claimed, were possessed of a tract of land, lying between a certain river and a slough, which was enclosed by a ditch on each side, and had within said enclosure a trading post, a corral and a wheat field. The lot in dispute was not a portion of the wheat field or corral, but was included in the premises thus designated or enclosed by them; their right of possession remained unquestioned and undisturbed. The land was afterwards laid out into lots and streets, upon the map of the a city, many of which were sold by the possessors and others. There was no pretence of an abandonment of the premises thus enclosed; but evidence that the possessors continued to assert title and exercise acts of ownership over them. On a trial of the cause, the district court rendered a judgment of nonsuit, on the ground that the claimant had not shown such a possession as entitled him to recover.
Did the district court err in rendering a judgment of nonsuit?
The court reversed because the evidence of the character of the possession, and the nature of the enclosure were before a jury, and they ought to have been allowed to pass on the sufficiency of them.