Steinback v. Fitzpatrick

12 Cal. 295

• Court: California Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Terry, C. J.,

delivered the opinion of the Court—Baldwin, J., concurring.

The demurrer to the complaint was properly sustained.

The first count alleges that one Spencer, the grantor of plaintiff, was seized in his demesne as of fee and right, by taking the esplees thereof to the value of one dollar, and that plaintiff, by virtue of a conveyance from Spencer, is entitled to the possession.

This is not a sufficient statement of a cause of action, under our statute. No title or actual possession is shown in the grantor of plaintiff, and the mere taking from the land of a portion of the herbage growing thereon, is not sufficient to give a right of possession.

The second count is defective, because it does not aver a continued adverse holding by the defendant.

Judgment affirmed.