Fick v. Nilson

BARNARD, P. J.

This is an action for damages and for injunctive relief. The plaintiff and defendant owned adjoining lands. There was a row of “Athel” trees immediately south of defendant’s south line, growing on a strip over which plaintiff’s predecessor had deeded a right of way for drainage purposes to the Imperial Irrigation District. The drainage ditch ran between this row of trees and the plaintiff’s citrus grove. It appears, without conflict, that the roots and branches of these trees had for many years caused serious damage to defendant’s property. The evidence is conflicting as to whether the value of these trees to the plaintiff, as a windbreak, was greater or less than their detriment to his land. With the permission of plaintiff’s predecessor defendant cut these trees down several times, this tree being hard to kill and having a rapid regrowth. The last of these cuttings occurred shortly after the plaintiff acquired his property. The plaintiff then had his attorney write the defendant a letter. Two years later, while the defendant was again cutting these trees and removing the stumps, this action was brought.

The complaint sought treble damages, under section 3346 of the Civil Code and section 733 of the Code of Civil Procedure, and an injunction prohibiting the defendant from molesting any trees then growing or thereafter planted on this strip. By answer and cross-complaint, the defendant alleged the impossibility of growing such trees in this place without continuous damage to his land, and sought to have the plaintiff enjoined from permitting such growth in any manner which would allow the roots or branches to interfere with his property. The court found that the defendant has no right to cut or molest such trees; that the plaintiff had been damaged in the amount of $500 by the destruction of this windbreak; and that the defendant had acted maliciously and wantonly, thus becoming liable for treble damages. It was further found, with respect to trees now growing or hereafter planted along this line, that the plaintiff has no right to permit any roots or branches to encroach upon defendant’s land. Judgment was entered for $1,500 as treble damages, enjoining the defendant from molesting such trees except as to any roots or limbs extending over or into his land, and also enjoining the plaintiff from permitting any such encroachment on defendant’s land.

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