Roche v. Casissa

DRAPER, J.

This is an action for treble damages for wrongful cutting of trees upon plaintiffs’ land. Defendants Casissa employed defendant Erb to top trees. Among those cut were 14 redwood trees and one bay tree located on plaintiffs’ property. Erb answered separately and cross-complained against his codefendants for costs and attorney’s fees. After trial without jury, judgment was entered in favor of plaintiffs and against defendants Casissa for $2,400 “which said sum is three times the actual damage done.” Cross-complainant Erb had judgment against defendants Casissa for his costs. The treble damages were awarded under Civil Code, section 3346, and Code of Civil Procedure, section 733. Defendants Casissa appeal.

Appellants’ first contention is that the evidence does not support a finding of any damage to respondents. Respondents reply that this argument cannot be raised because appellants, although they moved for new trial, did not specify excessive damages (Code Civ. Proc., § 657, subd. 5) as a ground of the motion. The general rule is that excessive damages cannot be urged as a ground for reversal unless previously presented to the trial court on motion for new trial

(Bate

v.

Jolin,

206 Cal. 504 [274 P. 971] ;

Reid

v.

Gillespie,

87 Cal.App.2d 769 [197 P.2d 566]). However, that rule can have no application here. Appellants do not complain of “excessive damages, appearing to have been given under the influence of passion or prejudice,” the ground for new trial specified in the code section. Rather, they contend that no damage at all is shown by the evidence.

Appellants’ contention is that the testimony shows that respondents’ land was worth at least as much after the cutting of the trees as before. This contention ignores the testimony of one witness that the land had a value of $5,000 before the trees were damaged. It is true that there was evidence that respondents bought the land some 10 months earlier for $300. Also, the witness who testified to the value of $5,000 gave other testimony which might be construed to mean that his view was not based on market value. However conflicts in the evidence are to be resolved by the trial court, and an appellate court will not weigh the evidence