202 P. 961 | Cal. Ct. App. | 1921
Action for damages and injunctive relief against defendant who, on her own land adjoining that of plaintiff, maintains a row of growing eucalyptus trees set one foot from the common boundary line. Judgment went for defendant, from which plaintiff appeals.
It appears without controversy that plaintiff and defendant are owners of adjoining tracts of land, that of plaintiff lying immediately west of defendant's tract. Plaintiff has growing upon his land a walnut orchard set *739 out in 1914, the easterly row of trees being 20 feet distant from the boundary line common to the tracts of land; that, set in place at about the same time and one foot east of said boundary line, defendant maintains a row of eucalyptus trees 300 feet in length, which at the time of the trial had attained a height of upward of 100 feet.
This being the situation, plaintiff, on March 9, 1920, filed his complaint, alleging, among other things, that the roots of the eucalyptus trees had at the time extended into and through the northerly 350 feet of the eastern portion of his land a distance of upward of 50 feet, by reason of which fact the east row of walnut trees were dwarfed and stunted and the soil for a distance of 50 feet from such boundary line had been deprived of moisture and plant food necessary and required in their growth and production of walnuts, all to his damage in the sum of $590.80; that by reason of the rapid growth and far-reaching extent of the root system of said trees, unless checked, he will be continuously and further damaged in that the row of trees next east and distant sixty feet from said boundary line will, due to the increasing root growth, be likewise affected, and the strip of land sixty feet in width adjoining said row of eucalyptus trees rendered valueless for the growing of walnuts or of crops of any kind. The prayer is for damages sustained by reason of injury due to the facts alleged in the complaint and for an injunction requiring defendant to abate the nuisance by checking the growth of the roots of said trees upon and into plaintiff's land.
In her answer defendant denied the material allegations of the complaint, and as separate defenses alleged: First, that any damage sustained by plaintiff and due to the alleged stunted growth of the walnut trees is directly and proximately the result of neglect on the part of plaintiff to properly irrigate, cultivate, and care for the same; second, that defendant has always carefully pruned the eucalyptus trees, and on different occasions plaintiff has pruned such portions of the trees as extended over and upon his land; third, as a plea in bar, defendant alleged that all of the matter upon which plaintiff based his cause of action had been previously adjudicated in an action between the parties in the justice's court, which action was commenced on December 20, 1918, and a trial thereof had on May 6, 1919, *740 which action, as shown by the complaint filed in the justice's court and set forth in defendant's answer, was to recover damages sustained by reason of plaintiff's walnut trees being stunted and the fertility of the land destroyed by the intrusion of the roots of the eucalyptus trees, in which action a judgment was rendered in favor of defendant.
That the complaint states a cause of action, we entertain no doubt. Section
In opposition to these views, respondent cites Corpus Juris, volume 1, page 1233, section 94, to the effect that *741
"one adjoining owner cannot maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature; his remedy in such case is to clip or lop off the branches or cut the roots at the line," which she claims is supported by Grandona v. Lovdal,
[4] As to the judgment in the justice's court pleaded in bar, it appears from the record that it was an action for damages alleged to have been sustained by reason of defendant's acts prior to the filing of the complaint therein on December 20, 1918, in growing said row of eucalyptus trees. Conceding that such judgment might bar a recovery for damages prior to such time, it could not affect plaintiff's right to recover for damages sustained subsequent to said date. In no event could it bar his equitable rights to an injunction to prevent a continuance of the injury. Moreover, it appears the action was dismissed by plaintiff. Nor is there any finding as to the truth of such matter pleaded in bar. Since it was not a judgment of a court of record, and the allegations of the answer touching the matter are deemed denied, a finding thereon should have been made.
The judgment is reversed.
Conrey, P. J., and James, J., concurred. *744