Sepulveda

— This was an action brought by the appellant under the provisions of section 254 of the Practice Act, for the purpose of determining an adverse claim set up by the respondents to certain real estate alleged to be in the possession of the appellant and whereof she claimed to be seised in *549 fee. At the trial, upon motion of the respondents, a judgr ment of nonsuit was entered against her, and from that judgment she has taken this appeal.

The motion was based upon four several grounds. The first was, that it did not appear that the appellant had such a possession of the premises as would enable her to maintain the action. The others presented questions of the construction and effect of certain deeds of conveyance running to the appellant, and which she had read in evidence to establish her title to the land in controversy.

We think that the case must turn'wholly upon the sufficiency of the first ground of nonsuit urged, because, if the fact of possession in the appellant was not proven, then the nonsuit was properly granted, even though it should appear that she had the title in fee and the right to immediate possession: Lyle v. Rollins, 25 Cal. 437 . And, upon the other hand,…

— I dissent, and intend on some future occasion to express my opinion more fully.

The plaintiff proved title under the grant, and, as to possession, that one tract had been entirely inclosed by her grantor, and was so inclosed at the time it was conveyed to her, which was about eight,months before the commencement of this action, since which time the fence had been removed by the plaintiff.

On the second tract was standing the old ranch house, at present apparently unoccupied. During the year before.the suit was commenced, a portion of this tract was cultivated by the plaintiff.

The plaintiff had upon the rancho one hundred head of horses and a hundred head of sheep, which were allowed to run over the three tracts as well as the other portions of the *551 rancho. There was also other stock upon the rancho, belonging to various persons, which, in common with the plaintiff’s stock, also ranged over the whole rancho. There was not, and never had…