Anderson v. Weiland

SCOVEL, J.,

pro tem.

Plaintiff and defendants are the owners of adjoining citrus orchards in San Bernardino County. On the boundary line dividing the two properties there is growing a row of tall eucalyptus trees termed a “windbreak” and grown for the purpose of protecting plaintiff’s orchard from damage caused by annually recurring winds of high velocity. Defendants’ evidence, which was not disputed, shows that the growth of limbs extending from the line of trees over and above their lands was injuring the citrus trees growing thereon. They commenced removing the offending limbs. Plaintiff thereupon filed this action praying for an injunction restraining defendants from “injuring, damaging, cutting, burning or in any way harming the said windbreak”. From the testimony given at the trial, it appeared that the limbs already cut and removed by defendants had left large holes or openings in the hedge or “windbreak”, which would permit the free passage of any damaging winds. Judgment was entered in favor of plaintiff perpetually enjoining defendants from “cutting, destroying or otherwise damaging the said windbreak”. From this judgment defendants have appealed.

It is conceded by both parties to this appeal that the hedge here involved growing on the line between their properties constituted plaintiff and defendants cotenants therein.

(Scarborough

v.

Woodill,

7 Cal. App. 39, at 40 [93 Pac. 383].) The exact nature of this cotenancy is difficult to

[732]

define. In

Scarborough

v.

Woodill, supra,

it is stated that “The tenancy in common in a ‘line tree’ appears to be of a peculiar nature, and may be stated to be, ‘that each of the land owners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal, in the first instance, to, or perhaps, rather identical with, the part which is upon his land; and in the next place, embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole’.”