The opinion
By the Court, Crockett, J.:
This is an action for unlawful detainer under the third section of the Act of 1866 (Stats. 1865-6, p. 768). On the trial the Court granted a nonsuit, and the plaintiff having moved for a new trial, which was denied, has brought this appeal. The proof was that in October, 1869, the plaintiff' erected on a quarter section of public land in Santa Clara County a small dwelling-house, in which he slept for several nights, and then returned to San Mateo County, where he had previously resided, with the intention immediately to return with his family to the new house as his home; but on his arrival at his home in San Mateo found his wife too ill to be removed, and she so continued for several months; that on leaving the new house for San Mateo he locked the door and took the key with him; that in the ensuing month of January, daring the plaintiff’s absence, the defendants entered the new house and have ever since occupied it; that they obtained access to it by removing some of the boards from the side, and have refused to surrender the possession for more than five days, after a proper demand made. On the facts the Court below granted a nonsuit, on the ground that the plaintiff had failed to show that he was the actual occupant of the premises within five, days before the entry of the defendants. That the plaintiff, in contemplation of law, *632 was in possession of the house when the defendants entered is too plain to admit of debate. He had recently erected and occupied it, and was only temporarily absent, having the door locked and the key in his possession. But the defendants insist that this js not sufficient to maintain the action under the third section of the statute, which, it is claimed, requires an actual occupation of the premises by the plaintiff or some one in his behalf within five days before the entry. This precise question was before the Court in Shelby v. Houston, 38 Cal. 410 , and was decided adversely to the construction now contended for. It is unnecessary to repeat the reasons for the construction adopted in that case, and which are fully stated in the opinion of the Court.
Judgment reversed and cause remanded for a new trial.