32 Cal. 578 | Cal. | 1867
This is an action to recover damages for an alleged trespass upon a tract of land in the County of Los Angeles, known as “ The Ranchito.”. It is charged that the defendants unlawfully entered upon said lands and tore down the gate of a cer
First-—The gist of the action is the alleged entry upon the Eanchito. The removal of the gate from the zanja is not any part of the cause of action, but is mere-matter of aggravation. (Taylor v. Cole, 3 T. R. 292; 2 Hil. on Torts, 221.). Failing to prove the gist there could be no recovery by the plaintiff for the injury to the zanja (Eames v. Prentice et als., S Cush. 337; Carpentier v. Mendenhall, 28 Cal. 484), and a special defense not justifying the real gravamen of the action would be no justification in effect. Now the first plea admits that the title to and possession of the locus in quo were in the plaintiff, and seeks to justify the entry of the defendants thereon on the ground simply that they had the right to an existing watercourse thereon for the purposes of irrigation.
Second—The second special defense is also fatally defective. In the first' place, it is not pleaded as a defense to the real
Judgment reversed and new trial ordered, with leave to the defendants to amend their answer.