Grandona v. Lovdal

70 Cal. 161 | Cal. | 1886

McKinstry, J.

The court below sustained a demurrer to the complaint. “ Trees whose branches extend over the land of another are not nuisances, except to the extent to which -the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off or have his action for damages, and an abatement of the nuisance against the owner or occupant of the land on which they grow, but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.” (Wood on Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390.)

So, it' would seem, he may have abated the roots projecting into his soil, at least if he has suffered actual damage thereby.

The general demurrer should have been overruled.

The defendant also demurred on the ground of the misjoinder of actions. There is only one count in the complaint. There is no direct averment therein that the trees have so grown as that any portion of the trunks are on plaintiff’s land. The averments as to the trunks having so grown as to break the dividing fence, and thus let in hogs which have destroyed plaintiff’s crops, may be rejected as surplusage, and not to be treated as a statement of a separate cause of action.

While we are compelled to hold that the complaint is not subject to general demurrer, nor to a demurrer for misjoinder of actions, we think that it is ambiguous and uncertain.

Judgment affirmed.

Myrick, J., and Ross, J., concurred.