Opinion of the Court-Lewis, C. J. What acts are sufficient to constitute such a possession of public land as will maintain ejectment, has long been a vexed question in the courts of California, and our own courts have found it impossible to announce any general rules that would meet the varying circumstances of every case. But it seems to be generally agreed that these acts must in a great measure depend upon the character of the land, the locality, and the object for which it is taken up. While arable or meadow land should be inclosed with a substantial fence, cultivated and *improved, land [*72] which is only valuable for the timber upon it might be held by a much less substantial inclosure, and cultivation or improvement would not be necessary. But one thing I think should be observed in every case; that is, possession, when solely relied on, should be a pedis possessio, an actual occupation, a subjection to the will and control. In this country, where no higher title to land exists than that which the law presumes from possession, and where all persons are permitted to locate upon any public land not previously occupied or appropriated, justice to the community requires that that possession should be open, notorious and continuous, and that it should be a pedis possessio. In the case of Plume v. Seward (4 Cal. 95), Chief Justice Murray uses the following language: "At the last term of this court we decided possession was prima facie evidence of title, and sufficient to maintain ejectment. What acts of ownership were necessary to constitute possession was not involved in that decision. From a careful examination of the authorities, I am satisfied there must be an actual bona fide occupation; a possessio pedis; a subjection to the will and control as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership, such as recording deeds, paying taxes," etc. The mere staking off of land, without occupation or other acts of ownership, would not constitute such a possession as would maintain ejectment, unless those acts were closely followed up by other and continuous acts of ownership. In this case, the defendants are attempting to hold upon the mere act of placing posts around the land in July, 1861, Statement of Facts. and the recording of a notice of their claim in June, 1862. To hold that these acts would be sufficient to enable the defendants to hold the premises against the plaintiff, who subsequently located, improved, and occupied them, would be against authority and the best interests of the community. The judgment below must be affirmed. BEATTY, J., did not participate in this decision. CHOATE & BROWN, APPELLANTS, v. THE BULLION MINING COMPANY, RESPONDENT. [1 NEVADA, 73.] 1 CONTINUANCE WITHIN DISCRETION OF COURT.-A motion for a continuance is always addressed to the sound discretion of the court, and should not be interfered with except where there has been a manifest abuse of that discretion. APPEAL from the District Court of the First Judicial District of the Territory of Nevada, Hon. J. W. NORTH presiding. The affidavit on motion for continuance in this case shows that affiant is the superintendent of the Bullion Mining Company, the defendant; that defendant could not safely proceed to trial during that term of the court because of the absence of one M. E. Letts, a material witness on the part of defendant; that Letts left the Territory of Nevada for the State of California in the month of November, 1862, and left said State in March, A. D. 1863; that immediately after arriving in said State he, the said Letts, in company with others, started to Lower California on a prospecting tour, and had been absent ever since; that immediately after this suit was commenced the affiant wrote to different places in order to ascertain his whereabouts so that his deposition might be taken, but that all his efforts to ascertain his whereabouts had failed; that said Letts was intending to return to Virginia City, and affiant believed that he would so return before the (1) 6 Nevada, 320; 9 Nevada, 308, Opinion of the Court-Lewis, C. J. next term of the court; that affiant had written to every place where said Letts might be expected to get his letters, yet that he had received no answer; that Letts's business is such that affiant knew he would return before many months. The affidavit also stated the facts which defendant expected to prove by said witness; that affiant knew of no one else by whom the same facts could be proved, and that his testimony could be obtained by the next term of the court. *Robinson & Foster, for Appellant. J. R. McConnell, for Respondents. By the Court, Lewis, C. J.: [*74] At the trial of this cause before the referee, the defendant moved for a continuance, on the ground of the absence of a material witness. The referee refused to grant the continuance, defendant excepted, and this is one of the grounds relied on for a reversal of the judgment which was in favor of the plaintiffs. A motion for a continuance is always addressed to the sound discretion of the court, and should not be interfered with except where there has been a manifest abuse of that discretion. In this case we think the affidavit upon which the continuance was claimed meets all the requirements of the statute, and the continuance should have been granted. Other grounds for a reversal of the judgment are relied upon by the appellants, but as this is sufficient to authorize the reversal of the judgment, it is unnecessary to pass upon them. Judgment reversed and a new trial ordered. Opinion of the Court-Beatty, J. GEORGE S. SAWYER, APPELLANT, v. THOMAS E. HAYDON, RESPONDENT. [1 NEVADA, 75.] 1 ELECTIONS, WHEN HELD.-Under our form of government there is no inherent right in the people to hold an election to fill any office. An election can only be held by virtue of some constitutional provision or legal enactment, either expressly or by direct implication authorizing that particular election. IDEM--VACANCIES IN OFFICE.-A law authorizing the electors of a county biennially to elect a person to fill a certain office, does not, even by implication, authorize them at an intermediate election to choose a person to fill out an unexpired term of the same office; especially is this so where there has been an appointment made to fill the vacancy by legal authority, and there is no law limiting this appointment to a period short of the expiration of the unexpired term. APPEAL from the District Court of the Second Judicial. District of the Territory of Nevada, Hon. GEORGE TURNER presiding. The facts of the case are stated in the opinion of the court Clayton and Atwater & Flandreau, for Appellant. Thomas E. Haydon, in person, for Respondent. [*76] *By the Court, BEATTY, J.: This case came before the district court of Ormsby county as an agreed case, under the following circumstances: At the September election, 1863, Samuel D. King, Esq., was elected prosecuting attorney for Ormsby county, and held the office until the 3d day of October, 1863, when he resigned, and T. D. Edwards, Esq., was appointed by the board of county commissioners to fill the vacancy. Edwards held the office until the 10th day of February, 1864, when he resigned, and the defendant (respondent) was appointed to fill the vacancy occasioned by this resignation, and entered upon the duties of the office. Prior to the September general election, 1864, proper notice was given that a pros (1) 2 Nev. 351; 5 Nev. 126. Opinion of the Court--Beatty, J. ecuting attorney for Ormsby county would be elected. The plaintiff was a candidate, and received a majority of the votes cast for that office, received his certificate of election, took the necessary *oath and demanded of [*77] respondent in be let into office. The defendant refusing to let him into office or to allow him to control the books or papers belonging thereto, an agreed case was submitted to the district court, and a decision was had therein in favor of the defendant. The plaintiff appeals to this court. The only question to be determined is, was the election held in September, 1864, for prosecuting attorney for Ormsby county, a legal election, or was it a proceeding without the authority of law, and void? By a law of the Territory of Nevada, passed December, 19, 1862 (Stat. 1862, 64), it is provided that at the next general election prosecuting attorneys shall be elected for each of the counties of the Territory, who shall hold their offices for two years and until their successors, shall be elected and qualified. In the Laws of 1861, p. 308, the following provisions are found in regard to filling vacancies: "SECTION 44. Whenever a vacancy shall occur during the recess of the legislature, in any office which the legislature are authorized to fill by election, or which the governor, subject to confirmation of legislative council, is authorized to fill, the governor, unless it is otherwise specially provided, may appoint some suitable person to perform the duties of such office. "SEC. 45. When, at any time, there shall be in either of the county or precinct offices, no officer duly authorized to execute the duties thereof, some suitable person may be appointed by the county commissioners to perform the duties of either of said offices; provided, that in case there is no board of county commissioners, the governor may, on notice of such vacancy, create or fill such board. "SEC. 46. Every person so appointed, in pursuance of either of the last two preceding sections, shall, before proceeding to execute the duties assigned them, qualify in the samo [manner] as required by law of the officers in whose NEV. 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