Pico v. Colimas

Citations

• 32 Cal. 578
• 1867 Cal. LEXIS 104

Syllabus

<p>Pleadings.—If the complaint is sworn to, a general denial in the answer admits all its material allegations.</p> <p>Trespass on Lands.—If the complaint, in an action to recover damages for an alleged trespass, avers that the defendant unlawfully entered on plaintiff’s land and tore down a gate, the gist of the action is the entry, and the removal of the gate is mere matter of aggravation; and if the plaintiff fail to prove the gist he cannot recover for the matter of aggravation.</p> <p>Justification of Trespass.—In trespass guare clausum fregit, where the complaint avers matter of aggravation after the entry, an answer justifying the aggravating matter, hut admitting plaintiff’s title and possession, does not state facts sufficient to constitute a defense.</p> <p>Easement.—One who owns an easement upon the land of another has a right to enter on the land to keep the easement in repair, but aside from this and analogous purposes he has no right of entry.</p> <p>Answer in Trespass.—In trespass guare clausum fregit, an answer justifying merely because the defendant has an easement on the land, contains no defense.</p> <p>Idem.—An answer justifying a trespass on the ground of official duty should aver that the defendant is an officer, and what his official duty is. If there are other defendants, and the answer is intended to apply to them, it should state that they entered in aid of the officer.</p> <p>Water Commissioner.—A Water Commissioner appointed under the Act of May 15th, 1854, to regulate watercourses, etc., has no power, as such, to repair a watercourse or to remove an obstruction from it.</p>