Colton v. Onderdonk

Citations

• 69 Cal. 155
• 10 P. 398
• 1886 Cal. LEXIS 645

Syllabus

<p>Trespass—Action to Recover for—Devisee in Possession may Maintain. •— One who is in possession of land as a sole devisee, pending the settlement of the estate of the testator, may maintain an action in her individual name to recover damages for a trespass committed thereon after the death of the testator, and while she is in possession.</p> <p>Id. —Judgment in Favor of Devisee — Bar to Recovery by Executrix. — If the devisee is also the executrix of the will of the devisor, a recovery hy her in such an action is a bar to a subsequent recovery in an action instituted by her in her representative capacity.</p> <p>Pleading — Complaint — Ambiguity—Demubrer.—An objection to a complaint on the ground of ambiguity must be taken advantage of by a special demurrer; otherwise the defect is waived.</p> <p>Id.—Blasting Books in City—Liability for Damages. — Where the owner of a lot situated in a large city, and contiguous to the dwelling-house of another, uses gunpowder to blast out rocks on his lot, he is liable for the damage proximately and naturally resulting to the house of the adjoining owner from the act of blasting, whether the damage was caused by rocks thrown against th^ house or by a concussion of the air around it.</p> <p>Id.—Unreasonable Use of Property — Skill in Use. — Such a use of property is unreasonable, unusual, and unnatural, and no care or skill exercised in the use will excuse the owner from liability for the damages proximately and naturally resulting from the blasting.</p> <p>Excessive Judgment — Verdict.—A judgment entered for an amount in excess of the verdict is erroneous, and will be modified on appeal.</p>