Opinion
Department 2. Appeal from superior court, county of Amador.
Ejectment for possession of a certain mining and water ditch running across defendant’s land. Plaintiff claimed title through one Henry Stull, who in turn derived, or claimed to derive, title from defendant by virtue of a deed made to Henry Stull & Co. Defendant in his answer admitted having given to Stull & Co. a right to dig and maintain the ditch, but claimed that it had been abandoned, and admitted that hence he had re-entered upon and used the ditch continuously to the time of trial. On the trial, plaintiff, to make out his title, introduced the deed to Stull & Co. in evidence, and also put in evidence the deed from Stull to himself, and proved by witnesses the possession thereunder of himself and Stull, and closed. Defendant moved for a nonsuit on the ground that plaintiff had neither proven title nor possession in himself, nor ouster by defendant. The nonsuit was granted and plaintiff appealed.
COUNSEL
[2 Cal.Unrep. 699] Eagon & Armstrong, for plaintiff and appellant.
McGee & Farnsworth, for defendant and respondent.
OPINION
THE COURT.
The nonsuit was improperly granted. The deed to Henry Stull & Co. vested the title in Henry Stull. Winter v Stock, 29 Cal. 411, 412. The answer shows a sufficient ouster.
Judgment reversed, and cause remanded for a new trial.