Stewart v. Sefton

Citations

• 108 Cal. 197
• 41 P. 293
• 1895 Cal. LEXIS 843

Syllabus

<p>Trespass—Removal of Trees—Treble Damages.—To entitle a plaintiff who complains of the unlawful removal of trees from his land to treble damages, under section 733 of the Code of Civil Procedure, he must allege and prove that the defendant willfully and maliciously removed the trees knowing them to be his property.</p> <p>Id.—Removal of Trees Planted in Good Faith — Mistake as to Division Line — Acquiescence — Estoppel — Damages.—Where the trees removed by the defendant were planted and cultivated while the defendant was in the actual and exclusive possession of the land, through an innocent mistake as to the true location of a division line between his land and that of the plaintiff, growing out of the mistake of a surveyor in locating the line, whose survey was accepted and acquiesced in by the plaintiff until after discovery of the mistake, the plaintiff is estopped from claiming that the trees were any part of plaintiff’s estate in the land, and he cannot, by protest, prevent the removal of the trees by the defendant while still in possession of the land before it is delivered up to plaintiff, nor can plaintiff claim any actual damages in consequence of their removal by the defendant.</p> <p>Id.—Nominal Damage.—In actions ex delicto nominal damages are often given, though no actual damage has been suffered; but a judgment for nominal damage is justified only on the ground that it can conserve some right of the plaintiff which has been nominally infringed, and which might be lost by acquiescence and lapse of time, and such judgment is not required where no right or title of the plaintiff is jeopardized.</p>