Paul A. Mosesian & Sons, Inc. v. Danielian

GRIFFIN, J.

In this action respondent seeks to recover from appellant ordinary as well as treble damages under section 3346 of the Civil Code. The complaint alleges that plaintiff is and was the owner of the real property involved, i. e., N. % of the S. E. % of the S. W. 14 °f sec. 30, T. 15 S. R. 23 E., M. D. B. & M.; that defendant on June 4,1939, entered upon the land and without leave did cut down and tear out forty-nine peach trees growing thereon belonging to plaintiff of the value of $980; that plaintiff lost said trees and thereby the defendants by force and effect of section 3346 of the Civil Code forfeited and became liable to pay plaintiff treble the amount of said damages. It sought in the sum of $2,940, which amount included the treble damages pleaded. Defendant answered, without demurring, either generally or specially, admitted plaintiff was the owner of the land described but alleged that the ownership was subject to an easement owned by appellant across a portion of the above-described land; that by this easement she was a joint owner of an irrigation ditch, with the right to convey through that ditch water for the purpose of irrigating land belonging to her which adjoined the land of the plaintiff described in its complaint; and that under the terms of the easement the appellant was entitled to convey water through the irrigation ditch without interference and was entitled to maintain and repair the irrigation ditch and keep it in a condition suitable for conducting water through that ditch, and to remove any obstructions which may have been found in or upon the banks of the irrigation ditch which interfered with or impeded the flow of water through it. Appellant then admitted that on June 4,1939, she removed from the bank of the irrigation ditch approximately forty-four peach trees growing thereon. She then alleged that the peach trees and interfered with the flow of water through the irrigation ditch to her land and claimed that they constituted an obstruction which she was entitled to remove; that the said trees were not removed wrongfully or maliciously by her but were removed solely for the purpose of protecting the easement and to prevent the obstruction of the ditch.

The court found that the allegations of the complaint were

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generally true except that the actual damage amounted, to $150 for the value of the trees removed and that respondent was entitled to treble damages totaling' in all the sum of $450. In respect to appellant’s answer the court found that “it is not true that the defendant . . . removed from the bank of the irrigation ditch . . . approximately 44 peach trees which were growing upon the bank of said irrigation ditch, and it is true that the defendant removed 49 of said peach trees instead of 44 peach trees as alleged therein; that it is not true that said peach trees impeded or interfered with the flow of" water through said irrigation ditch to the land of the defendant and constituted an obstruction which the defendant was entitled to remove; that it is not true that said trees interfered with the use and enjoyment of said easement . . . that it is not true that said trees were not removed wrongfully or maliciously by this defendant; that it is not true that said trees were removed solely for the purpose of protecting the easement of the defendant and to prevent their obstruction of said irrigation ditch.”