Crance v. Hems

MARKS, J.

This is an appeal from a judgment rendered after sustaining a general demurrer of Albert R. Hems, Lena Hems, M. Rugg and Jane Doe Rugg to plaintiffs’ amended complaint without leave to amend, and from the order sustaining the demurrer. Such order is not appealable. (Sec. 963, Code Civ. Proc.)

It is alleged that plaintiffs are husband and wife, and are owners of land in Imperial County; that Mountain View Cemetery, a California corporation, had forfeited its charter; that at one time it had title to real property adjoining the land of plaintiffs; that defendants Albert R. Hems, Lena Hems and Prank Railings, during the three years last past before the filing of the amended complaint, were the owners

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of and in lawful possession and control of the cemetery property; that within the three years prior to the commencement of the action each defendant claimed the title to the property and had actual “possession, use, occupation, control and direction of said cemetery property”, and in particular the trees growing thereon; “that all during the three years last past prior to the commencement of this action the defendants herein and each and all of them have been the owners of and in actual possession, occupation, control and direction of the” cemetery property; that defendants had planted, and have growing, a row of athel trees along the south line of five acres of the cemetery property adjoining the property of plaintiffs; that the roots of the athel trees have grown across the boundary line of plaintiffs’ property and have extended into its soil; that plaintiffs have planted pecan trees upon their property, and farm crops between the rows of pecan trees; that “the pecan trees planted by these plaintiffs upon their said property have been killed, strangled and completely destroyed by the roots from said athel trees, and the farm crops and products planted by the plaintiffs upon their said property have been destroyed, curtailed and diminished”, to plaintiffs' damage in the sum of $3,500. It is further alleged that the nuisance is continuing; that plaintiffs have demanded its abatement and that defendants have refused to comply with the demand. Damages and an injunction are sought by plaintiffs.

Defendants did not specially demur to the amended complaint. It is therefore unnecessary for us to notice the patent uncertainties and ambiguities in that pleading.