La Rue v. Oppenheimer

20 Cal. 517, 1862 Cal. LEXIS 70

• Court: California Supreme Court
• Decided: July 1, 1862
• Status: Published

Opinion

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

This is an action of ejectment, in which the plaintiff, instead of averring a seizin or ownership of the premises in general terms, sets forth that he “ became the owner by location and occupation,” and then avers a survey and certain other acts tending to prove a possession, and that he continued to enjoy peaceable possession until, etc., when he was ousted by the defendants. The defendants deny that the plaintiff became the owner by location and occupation, and deny any knowledge of the survey, and deny that the plaintiff acquired any right to or possession of the premises by location or in any other manner; and they deny the ouster. On the trial, the plaintiff asked an instruction that the answer admitted the prior possession of the plaintiff, and the entry, and ouster, which instruction was refused, and the plaintiff excepted.

The statements of the complaint together only amount to an allegation that the plaintiff by certain acts acquired possession of the premises. The answer denies these acts, except the survey, and denies that the plaintiff acquired possession by location “ or in an;$r other manner.” We think the allegation of prior possession was sufficiently denied by the answer, and that the instruction was properly refused.

Judgment affirmed.