93 P. 383 | Cal. Ct. App. | 1907
Appeal from judgment and order denying motion for a new trial.
Plaintiff and defendant own adjoining orange orchards in the county of Riverside, which are separated by a row of cypress trees growing on the boundary line between them. The trees vary in diameter from thirteen to twenty-three inches, and in height from seventy to seventy-five feet, and the trunks thereof stand partly on one side and partly on the other side of said line. *40
Defendant cut down eight of these trees (every alternate two), and threatened to continue to cut every alternate two trees until he had cut one-half of the entire row. The eight were taken to defendant's home and used for firewood.
The trial court rendered judgment in favor of plaintiff for $100 damages and perpetually enjoining defendant from cutting down, injuring or destroying any of the remaining trees growing on said line.
Line trees are "trees whose trunks stand partly on the land of two or more coterminous owners," and "belong to them in common." (Civ. Code, sec.
While at common law there appears to have existed two views as to the character of the estate created in the adjacent owners of real property by reason of the roots of trees grow-in near the boundary line extending into and deriving nourishment from the other property, the rule as to trees growing in a hedge that divided the lands of two proprietors was the same as that of our Civil Code. The ownership of the soil was several, in the proprietors of the two estates, while the. tree, standing and growing partly on the soil of each, not capable as an entire thing of several ownership by the two was the property of the two in common, and as tenants in common. (Dubois v. Beaver,
Defendant's estate in the row of cypress trees must be considered merely as that of a tenant in common in the trees themselves as described by the Connecticut court with an easement upon plaintiff's lands for the sustenance of such trees. Whatever the character of his holding, it cannot be contended that he is empowered to make his own partition of the trees in his own way. The Code of Civil Procedure expressly provides for an action for waste against a tenant in common. (Sec. 732.) Waste is not defined by the code, so we must look to the common law for this. (McCord v. Oakland,
This leads to a consideration of the propriety of the equitable remedy which was awarded by the trial court. Defendant contends that as the parties were tenants in common of the trees, no injunction will issue against one at the suit of the other. In neither of the cases relied upon by the appellant was the court dealing with similar facts to those before us upon this appeal. In Hihn v. Peck,
In other jurisdictions the use of the injunction in a proper case seems to be generally approved and the text-writers usually state the rule, that a tenant in common will not be granted an injunction against his cotenant, with an exception. In special cases, one tenant in common may, on the application of the other, be enjoined from committing waste (cutting timber), but the injunction is sparingly exercised. (Obert v. Obert,
It is argued by appellant in the case at bar that neither the complaint nor the findings show any peculiar conditions or circumstances justifying the issuance of an injunction under the authorities cited. This court will take judicial notice of the flora and climatic conditions of the country. It may from these and the character of the trees in question determine whether they are natural timber growing upon the land, or trees of an ornamental nature planted for a special purpose. From these premises it will be presumed that the cutting of cypress trees for firewood on the boundary line of an orange orchard in Southern California was not a "legitimate enjoyment of the estate" in such trees. We do not think any more specific allegation or finding is necessary to sustain the judgment.
Judgment and order affirmed.
Allen, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 21, 1907. *43