Halleck v. Mixer

Citations

• 16 Cal. 574

Syllabus

<p>A complaint in replevin, alleging that the testator was seized and possessed of certain premises at the time of his death, on the nineteenth of July, 1855, and that the plaintiffs were appointed the executors of his last will and testament, without averring, in direct terms, either previously or subsequently, the fact of the testator’s death, or that he left a last will and testament, is defective as a pleading.</p> <p>A complaint in replevin, alleging that F. was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same without authority, and cut down timber growing thereon to the amount of about three hundred cords ; that the defendant after-wards also entered upon the premises, without authority, and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage of $1,100—the alleged value of the wood—sufficiently shows plaintiffs’ ownership of the wood.</p> <p>The averments in such complaint of “unlawful and wrongful,” as applied to the entry upon the premises and the cutting down of the timber, and to defendant’s removal and detention of the same, may be stricken out as surplusage.</p> <p>Against the catting of timber, the owner of real property is entitled to the preventive remedy of injunction. Whilst the timber is growing, it is part of the realty, and its destruction constitutes that kind of waste, the commission of which a Court of Equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously,