Coryell v. Cain
Before: Field
Synopsis
A complaint in ejectment should not set out the mesne conveyances through which plaintiffs deraign title. These are matters of evidence, not of pleading, and should be stricken from the complaint, on motion.
In this case, the complaint should only have averred that on some day designated, plaintiffs were possessed of the land, describing it; that while thus possessed, defendant entered upon the same and ousted them, and has ever since withheld the possession from them, to their damage, specifying such sum as might cover the value of the use and occupation from the date of the ouster.
A demurrer overruled by consent of parties cannot be considered.in the Supreme Court.
The fact that a complaint in ejectment, in addition to describing the premises by metes and bounds, also designates them as one-half of a certain pre-emption claim taken up by one Morris—from whom plaintiffs traced title—in 1850, and surveyed by the County Surveyor, and recorded in conformity with the statute, does not make it essential to plaintiffs’ recovery, as against a defendant in possession, that they should allege in their complaint, and on the trial prove such facts as will bring them within the provisions of the pre-emption laws of the United States, or the Possessory Act of this State. The designation of the property as part of a pre-emption claim does not preclude the claimants from relying upon any other source of title than the United States or the State.
The general rule that, in ejectment, the claimant must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and that his action will be defeated if defendant shows title out of him, and in a third party, has in this State been qualified and limited.
In this State, although the larger portion of the mineral lands belong to the United States, yet defendant cannot defeat an action for mining claims; water privileges and the like, by showing the paramount title of the Government. Our Courts, in determining controversies between parties thus situated, presume a grant from the Government to the first appropriator. This presumption, though of no avail against the Government, is held absolute in such controversies.
In controversies respecting public lands, other than mineral lands, the title, as between citizens of the State, where neither party connects himself with the Government, is considered vested in the first possessor, and to proceed from him. This possession must be actual and not constructive; and the right it confers must be distinguished from the right given by the Possessory Act of the State.
A party relying on the Possessory Act of the State must show compliance with its provisions, and can then maintain an action for the possession of lands occupied for cultivation or grazing, without showing an actual enclosure or actual possession of the whole claim.
Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring.
This is an action of ejectment to recover a tract of land situated within the county of San Francisco. The complaint is of a character which has frequently elicited observations of disapprobation from this Court. It is filled with matters relating to the title of the plaintiffs, which have no place in pleadings, and should only be presented as evidence in the case. Had the defendant made the application, these matters would, undoubtedly, have been stricken out, as redundant, at the cost of the plaintiffs. It is not within the wit of man to devise more simple rules of pleading than those prescribed by the Practice Act of this State, and there is no excuse for any departure from them. That facts, and not the evidence of facts, should be alleged, is not less a rule of pleading in our system than it was under the former system, which has been superseded. Thus, in the present case, the complaint should only have alleged, that on some day designated the plaintiffs were possessed of the land, describing it; that whilst thus possessed, the defendant entered upon the same, and ousted them, and has ever since withheld the possession from them, to their damage ; specifying such sum as might cover the value of the use and occupation from the date of the ouster.
[572]It is upon matters unnecessarily incorporated into the complaint that the objections of the appellant principally rest, and for which he seeks a reversal of the judgment. The objections raised by the demurrer we do not notice, as the demurrer was overruled by consent of parties. A ruling made by consent cannot be the subject of consideration in this Court.
The complaint refers, in 'its statement of the various transfers of the property before it reached the plaintiffs, to the several mesne conveyances of the intermediate parties from one Morris, copies of which are annexed, and made part of the pleading. These conveyances, in addition to giving a description of the premises by metes and bounds, designate them as one-half of a certain preemption claim taken up by Morris in 1850, and surveyed by the County Surveyor, and recorded in conformity with the statute. This designation constitutes the basis of the main objection urged to the complaint. The general position of counsel, as we understand it, is this : that the designation of the property, as constituting a part of a preemption claim, shows that it belongs either to the United States or to the State of California, and that in consequence, it is essential, to entitle the plaintiffs to a recovery as against the defendant in possession, that they should allege in their complaint and establish on the tz-ial such facts as would bring them within the provisions of the preemption laws of the United States, or the Possessory Act of this State. The proposition, as thus stated, cannot be maintained.
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