Hutchinson v. Perley

Appeal from the Fifth Judicial District.

The plaintiff brought this action against the defendant to recover possession of a tract of land, situated on the north side of the Calaveras Eiver, in the County of San Joaquin, containing 318 acres, more or less; alleging that, whereas the complainant was, on the 1st day of October, 1851, and for a long time previous thereto, in the possession of the said tract of land (describing it) and had, at the date aforesaid, commenced improvements on the said premises, and did improve the same to the value of several hundred dollars during the possession thereof, and being so in possession, and claiming the right to such possession of said tract of land, the defendant Perley, on the 9th day of August, 1852, entered into the said premises and ejected the complainant therefrom, to the damage of the said plaintiff in the sum of $1,500, and praying for the recovery of the possession of the said tract of land, and the damages aforesaid, for the withholding thereof, and costs of suit, etc.

The defendant demurred to the complaint, and, for cause of demurrer, alleged that the complaint did not state [34] facts *sufficient to constitute a cause of action — ■ First, because the complaint did not set up any title or claim any right of property in the land; second, because no averment is made that the complainant has any right of possession in the land; third, because it is not stated how the damages, stated in said complaint, accrued — whether for withholding the property, or for waste committed on it, or for rents or profits of the same.

The Court sustained the demurrer, and the plaintiff appealed.

Prior possession is a species of title, and, on the strength of it, recovery may be had against a trespasser. (2 Johns. R. 22; 10 lb. 364; 2 Halst. 14; 3 Carr. & P. 14 Eng. Com. Law Rep. p. 742; 41 lb. 23; 1 Adol. & Ellis, 28; lb. 55; 7 Bing. 346; 20 Eng. C. L. Rep. 156.)

The plaintiff alleged, not only his possession, but a right to the possession. The object of the action of ejectment is, to ascertain who has the right of possession. (See 3 Black. Com. Ejectment.) It was not necessary to allege the particular facts from which the legal consequence of the right of possession is deduced. (Yan Santvoord Plead. 206; 10 Wend. 415.)