Boles v. Weifenback

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

The judgment in this case must be reversed. The action is brought to recover possession of a tract of land. The allegations of the complaint are sufficient, and the demurrer was improperly sustained. It is alleged that the plaintiffs were in the actual possession of the property by inclosure and cultivation, that the defendants, on a certain day, entered upon the same, and ousted the plaintiffs. It is further alleged, that the defendants are still in possession of the premises. What additional allegation is necessary in such an action, or for what reason the plaintiffs are not entitled to recover upon the facts stated, we are unable to discover. There is another count in the complaint, setting forth the same cause of action in a different form; but it is unnecessary to determine whether this count is or is not demurrable. The demurrer is to the whole complaint, and we cannot perceive any ground upon which it should have been sustained.

Judgment reversed, and cause remanded for further proceedings.