Mr. Chief Justice Murray concurred.
This is an action of ejectment, in which the plaintiff seeks to recover upon prior possession.
The facts, as disclosed by the record, are as follows: In 1850 the plaintiff entered upon a tract of land in El Dorado county, caused it to be surveyed, and the boundaries marked; built a house upon it, in which he resided, and enclosed and cultivated a small portion of the tract. In 1852 the defendant entered upon the land within the boundaries of the survey, but not within the actual enclosure of plaintiff.
“ Possession is presumptive evidence of title, but it must be an actual bona fide occupation, a pedis possessio, a subjection to the will and con- . trol, as contradistinguished from the mere assertion of title, and the exercise of casual acts of ownership," See Plume v. Seward, 4 Cal., 95. A mere entry without color of title, accompanied by a survey and marking of boundaries, is not sufficient.
The statute of this State has provided a means by which the actual possession of a party may be extended to the limits of his survey, but the plaintiff not having shown a compliance with the provisions of the statute, cannot recover under it. Sweetland v. Froe, July Term, 1856.
The Court erred in refusing a non-suit. Judgment reversed.