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Boles v. Weifenback

15 Cal. 144 Court Cal. English

Delivered by Cope, J. delivered the opinion of the Court

Contents

Majority

p. 144
BOLES et al. v. WEIFENBACK et al.

Headnote

A complaint in ejectment, averring that plaintiff was in the actual possession of the premises by inclosure and cultivation; that defendants, on a certain day, entered upon the same, and ousted the plaintiff, and that defendant is still in possession, is sufficient.
Appeal from the Ninth District.
The allegations of the complaint are, that “ on, etc., plaintiffs were, and have been, and still are, the legal owners of, and lawfully entitled to, the possession of said premises, and were in the quiet, peaceable, and actual possession thereof,” etc., and that “ defendants did enter in and upon said premises, and forcibly eject, expel and drive plaintiffs therefrom, and took the possession of said premises, and have retained the possession up to the present time, and continue to retain possession thereof; that plaintiffs have frequently demanded the possession of said premises of the defendants, and they ever have and still do refuse to comply with plaintiffs’ said request.”
Defendants had final judgment on the demurrer. Plaintiffs appeal.
J. A. Fletcher, for Appellants.

Baldwin, J. and Field, C. J. concurring.

The judgment in this case must be reversed. The action is brought to recover possession of a tract of land. The allegations of the complaint are sufficient, and the demurrer was improperly sustained. It is alleged that the plaintiffs were in the actual possession of the property by inclosure and cultivation, that the defendants, on a certain day, entered upon the same, and ousted the plaintiffs. It is further alleged, that the defendants are still in possession of the premises. What additional allegation is necessary in such an action, or for what reason the plaintiffs are not entitled to recover upon the facts stated, we are unable to discover. There is another count in the complaint, setting forth the same cause of action in a different form; but it is unnecessary to determine whether this count is or is not demurrable. The demurrer is to the whole complaint, and we cannot perceive any ground upon which it should have been sustained.

Judgment reversed, and cause remanded for further proceedings.