Kendall v. Waters — 68 Cal. 26

Majority

p. 26

[No. 9132.

Department Two.

Headnote

— November 20, 1885.]

S. S. KENDALL, Respondent, v. DONALD WATERS et al., Appellants.

Evidence — Sufficiency of — Findings. — In the absence of the evidence, its sufficiency to sustain the findings will be presumed.

Pre-emption — Land in Possession of Another.— One person cannot enter upon land in the possession of another for the purpose of pre-emption.

Findings — Cross-complaint — Demurrer. — No findings are necessary on the allegations of a cross-complaint to which a demurrer has been sustained and no amendment made.

Appeal from a judgment of the' Superior Court of Contra Costa County.

The facts are stated in the opinion of the court.

Burnett & Newman, and L. Quint, for Appellants.

Mills & Jones, for Respondent.

— Ejectment. The plaintiff alleged possession in himself on the 1st of November, 1881, of certain tracts of land, and ouster by the defendants on that day, and that they withhold the lands from plaintiff. The answers of the defendants denied' the possession of plaintiff, denied the entry of defendants and ouster by them, and denied that they withhold the premises from him.

The defendants added to their answers respectively cross-complaints, to which cross-complaints demurrers were filed and sustained, and the defendants did not avail themselves of leave to amend.

The cause was tried on the complaint, and answer and

p. 27

judgment rendered for plaintiff. The evidence is not before us; therefore we cannot consider any question relating to its sufficiency.

The facts stated in the cross-complaints constituted no defense to the action; therefore the demurrers were properly sustained.

It is not an open question that one person cannot enter upon the possession of another for the purpose of preemption.

The plaintiff declared on prior possession; therefore, under the denials of the answers, the defendants could have offered all the evidence they had tending to show that they had possession prior to the plaintiff; we must presume they attempted to make proof of such possession and failed.

It is scarcely necessary to say that the court did not err in omitting to find on the issues presented in the cross-complaints. The demurrers having been sustained, and no amendments made, the matters stated in the cross-complaints were not in issue to be determined in the trial court.

Judgment affirmed.

Thornton, J., and Morrison, C. J., concurred.