We do not think the demurrer well taken. The plaintiff, in framing his complaint in ejectment, is entitled to insert a demand for damages for withholding the property. (Code Civ. Proc. § 1496.)
Section 1497 provides: “ Those damages include the rents and profits, or the value of the use and occupation of the property where either can legally be recovered by the plaintiff.”
We think that the plaintiff did not, by paragraphs 5 and 6, set set forth separate causes of action against the defendants for the recovery of the profits which they made in carrying on business, upon the land in question, but that he thereby intended to specify the “ profits ” which he mistakenly supposed are referred to in sec*140tion 1497 as included in the “ damages ” which he could rightfully demand under section 1496.
The interlocutory judgment is reversed, with costs, and the demurrer overruled, Avith costs, with leave to the defendants to Avitlidraw demurrer and ansAver in twenty days upon payment of costs.
All concurred.
So ordered.