Stewart v. Birchfield
Before: James
Synopsis
Action fob Injury to Land—Clearing of Brush by Adjoining Owner—Blowing of Sand by Wind—Failure to Irrigate—Insufficient Complaint.—A complaint in an action for damages for injury to plaintiff's land, alleged to have resulted from the clearing of brush on defendant’s land and the failure to irrigate the same, whereby the wind blew the sand from the same onto plaintiff’s land, to Ms damage, does not state a cause of action, and a general demurrer thereto was properly sustained.
Id.—Bights of Defendant as Owner of Land—Nonresponsibility.— The defendant had the right, as incident to Ms ownership of the land, to remove the brush or trees growing thereon; and unless he was guilty of some negligence in removing the same, he would not be responsible in damages to the plaintiff. He had the right not only to clear his land, but also to leave it unirrigated thereafter, even though his failure to irrigate it might have produced the damage of which thg plaintiff complains.
Id.—Inevitable Loss to Adjoining Owner not Negligence.—It is not necessarily negligence for a land owner to make such use of his land as inevitably produces loss to his neighbor. He may willfully adopt such a course, and yet not be a wrongdoer. Much less is he liable for unintentionally doing that which he has the right to do intentionally.
Ib.—Jurisdiction op Superior Court—Claim op Damages Less Than $300—Judgment Affirmed upon Merits.—It is held, as the opinion of this court, that the superior court had no jurisdiction of an action for damages for injury by defendant to plaintiS’s land in a less sum than $300; but that, as the supreme court had refused to dismiss the appeal on that ground, the appeal is determined upon the merits, and the judgment of dismissal, after demurrer sustained for insufficiency of complaint, will be affirmed.
JAMES, J.
A demurrer to plaintiff’s complaint was sustained by the superior court, and plaintiff declining to amend, a judgment dismissing the action was thereafter entered, from which plaintiff appeals.
The action was brought to recover the sum of $250 as damages, alleged to have been suffered by plaintiff through the negligent act of defendant. In the complaint it was set out that plaintiff was the owner of certain real property in the county of Imperial, and that defendant was the owner of land contiguous thereto. The plaintiff then proceeded to allege as follows: “That it is a well-known fact that in Imperial county strong winds prevail from a westerly to an easterly direction; that it is a well-known fact that in said Imperial county, and more particularly in the vicinity where said lands of plaintiff and defendant are situated, when land is cleared of brush and leveled and left in that condition without irrigation, sand and soil, because of the action of the winds aforesaid upon the land so cleared, leveled and exposed and loosened, are blown from land so cleared, leveled
[380]
and left unirrigated, to and upon adjacent lands; that the sand and soil so blown is apt to cause, and often does cause, large mounds of sand and soil to form on cultivated portions of land adjoining. That on or about the month of April, 1908, the defendant removed, or caused to be removed, all brush from, and leveled or caused to be leveled, that portion of his said land above described, which lies immediately to the westward of and adjoining the land of the plaintiff; that after said brush had been removed and said land had been leveled as aforesaid, the defendant did leave his said land wholly unirrigated and uncared for; . . . defendant left his said land wholly unirrigated and uncared for after the same had been cleared of brush and leveled as aforesaid, and thereby large quantities of sand and soil were permitted to blow over, on and upon, and did blow over, on and upon the said land of the plaintiff, and thus caused large mounds of sand and soil to be erected on and upon the strip of land of the plaintiff aforesaid, all of which is- to the great injury of the plaintiff’s land to the damage of the plaintiff.”
By the demurrer of defendant it was first objected that the complaint of plaintiff did not state facts sufficient to constitute a cause of action. Several other grounds of special demurrer were also assigned therein, which it will be unnecessary to take notice of.
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)