Shevlin v. Johnston

FINCH, P. J.

The defendant appeals on the judgment-roll from a judgment in favor of the plaintiff.

The complaint alleges and the court finds that the parties are adjoining land owners, their common boundary being 1,300 feet in length; that along said boundary line, from one to ten feet therefrom, there is growing a row of eucalyptus and cottonwood trees on defendant’s land, spaced from six to eight feet apart; that the roots of the eucalyptus trees extend laterally a distance of 62 feet and upward and those of the cottonwood trees 30 feet and upward into plaintiff’s land; that on plaintiff’s land, adjacent to the division line, are growing grape-vines for a distance of 450 feet, peach trees for a distance of 485 feet, and that plaintiff grows com, beans, and other crops along 355 feet of said line; that the roots of defendant’s trees greatly injure plaintiff’s vines, trees, and crqps and cause cottonwood sprouts and shoots to spring up; that the plaintiff’s land is rich and valuable for agricultural and fruit-raising purposes. The court found that plaintiff has suffered damage in the sum of $25 and that the damage from the growth of the roots of defendant’s trees into plaintiff’s land is of a continuing nature and that said growth constitutes a nuisance. The court found against defendant on his pleas of acquiescence, estoppel, and the statute of limitations and his claim that the row of trees was necessary as a windbreak and-in accordance with the custom of the neighborhood. The court further found that at the time of the commencement of the action the neighborhood was thickly settled and “was dotted with many homes and covered with innumerable orchards and vineyards, which render and rendered said trees not indispensable as a windbreak for defendant.”

.The judgment requires “that the defendant shall abate said nuisance, either by removing said trees entirely or by constructing a trench or by building barriers sufficient to prevent the roots of said eucalyptus and cottonwood trees and the shoots and sprouts of said cottonwood trees from entering, penetrating, or growing into or upon the land of

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plaintiff. . . . That said abatement shall be permanent in its nature, and that the roots, sprouts, and shoots of said trees shall not hereafter be permitted to enter, penetrate, or grow into or upon the land of plaintiff.”