Fetterly v. Salyer

BARNARD, P. J.

The defendants had under lease a part of the old Tulare Lake bed, described by quarter sections, and the plaintiff had under lease two parcels, similarly described, which adjoined the defendants’ land. In the fall of 1946, the parties sowed barley on their respective lands. At that time the exact location of the section lines was unknown to either party, and each planted what he thought was the land leased by him. The defendants planted their land first, seeding barley up to an old levee and ditch line. The plaintiff later sowed barley on his land, seeding up to the same line where the defendants had stopped. There is evidence that for some 25 years this levee and ditch line had been accepted by previous owners and farmers of these parcels as the boundaries and lines to which they had planted crops. There is evidence, however, that the land in question had been under water for nearly 10 years prior to the season in question.

The barley planted by the plaintiff was ready for harvest by June, 1947. Shortly before harvest time the defendants had their land surveyed by two engineers, who set stakes purportedly marking the quarter section lines. Although the plaintiff was not informed of this survey he observed, a few days before harvest and seven months after the barley had

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been planted, some stakes in his field of barley. He proceeded, according to custom, to cut a strip of barley around each of his parcels to make room for the big harvesters to come in and complete the harvest. The strip thus cut included an area of several acres along the boundary line, which is the area in dispute, and which the defendants claim to be theirs, as shown by their private survey. Thereupon, the defendants went upon the plaintiff’s land and harvested and removed the grain from a similar area.

The plaintiff brought this action alleging that the defendants had unlawfully entered upon his land and had harvested, removed and converted to their own use 48.44 tons of barley of the reasonable value of $2,905.80, to his damage in that amount. It was also alleged that in doing these things the defendants had acted maliciously and oppressively, and by reason thereof $3,000 was demanded as exemplary and punitive damages. In their answer the defendants admitted that they had gone upon the plaintiff’s property and harvested and taken the barley from about 12% acres, alleging that they had done so because the plaintiff had previously trespassed upon their property and harvested a similar area of barley. They also filed a cross-complaint alleging that the plaintiff had trespassed upon their land and had harvested and taken therefrom 48.44 tons of barley of the reasonable value of $4,-601.80. They also sought exemplary and punitive damages against the plaintiff in the sum of $3,000.