
    STEINBACK v. FITZPATRICK et al.
    
    In an action of ejectment to recover the possession of a tract of land, the plaintiff must aver either title or possession. The mere taking from the land a portion of the herbage growing thereon, is not sufficient to give a right of possession.
    Hor is a complaint in such action sufficient, which fails to aver a continued adverse holding by the defendant.
    Appeal from the Twelfth District, County of San Francisco.
    
      This was an action to recover the possession of a lot of land in the City of San Francisco.
    The allegations of the complaint are briefly stated in the opinion of the Court. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Court below, and judgment given for defendants. The plaintiff appealed to this Court.
    
      B. IP. Brooks for Appellant.
    
      Stanley $ Says for Respondent.
   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.  