In Bowers v. Cherokee Bob, (45 Cal. 502,) in speaking of the character of the possession which would support an action of forcible entry and detainer, we said that such an action could not be maintained upon a mere scrambling possession, and that as between the parties struggling for the possession, “neither can maintain the action against the other until he has acquired an actual possession which has ripened into a peaceable occupation—that is to say, peaceable between themselves.”
The application of this principle to the facts appearing in the record is decisive of this case. In no sense can the possession of the plaintiff, upon which the action is founded, be said to have been peaceable. On the contrary, the evidence upon the part of the plaintiff exhibits a constant and protracted struggle between himself and the defendant, Butler, of the most bitter and violent character, *76such as the tearing down of fences and the destruction of the material by burning. Butler had torn down the fences in 1866 and had continued to do so down to the time of bringing the action. Mrs. Voll herself, one of the principal witnesses for the plaintiff, in detailing the circumstances relied upon to show possession, states that the plaintiff was compelled to desist from putting fences on the premises, “because Butler would bring his mob and tear it down.” It is apparent that, under such circumstances, an action of this character cannot be maintained.
Judgment affirmed. Remittitur forthwith.
Neither Mr. Justice Crockett nor Mr. Justice Niles expressed an opinion.