Hutton v. Schumaker

21 Cal. 453

Opinions

Field, C. J. delivered the opinion of the Court

Cope, J. and Norton, J. concurring.

The plaintiff avers in his complaint that in January, 1859, he was the owner and entitled to the possession of the premises in controversy, and in support of this averment proved on the trial that the parties through whom he traces title, in September, 1855, inclosed the premises with a brush fence from two to three feet in tight. No proof was offered that the plaintiff or his grantors ever subjected the premises to any uses whatever; and, on motion of the defendants, the Court ordered a nonsuit.

The mere inclosure of a lot with a fence of this character, without any other steps being taken to subject the property to any use, is not sufficient evidence of ownership or right of possession in the plaintiff to sustain ejectment against one subsequently entering upon the premises. The nonsuit was therefore properly granted.

Judgment affirmed.