Hatton v. Gregg
Before: Hall
Synopsis
Injunction—Waste—Digging up and Removing Trees and Brush— Threatened Continuance.—The entry of the defendant on plaintiffs’ land, and cutting down trees and brush thereon, constitutes, without other matter, waste, and an injury to the freehold, and where the defendant threatened to continue such waste, an injunction will lie to restrain him from so doing.
Id.—Defense not Pleaded—Rights of Riparian Owner.—If it be conceded that a riparian owner has the right to go upon the land of an upper or opposite riparian proprietor, and to cut down willows and brush bordering on the stream, in order to prevent the collection of driftwood thereon, which would obstruct the channel of the stream, and divert the water from his land to his damage, the facts giving him such right constituted affirmative matter, which must be pleaded by him, when sued to restrain such action as waste; and where he failed to plead it, and merely took issue upon averments of the complaint, which the court found against him, such affirmative matter cannot be considered.
Id.—Findings—Plea of Statute of Limitations—Immaterial Omission.—Where the findings for the plaintiff are sufficient to support the judgment restraining threatened waste, and it was proved without contradiction that the acts upon which the action was predicated were committed within three months before the action was commenced, the failure to find upon a plea of the statute of limitations under subdivision 2 of section 338 and section 343 of the Code of Civil Procedure was immaterial, and cannot constitute ground for reversal.
Id.—Prescriptive Easement not Pleaded—Similar Acts of Waste.— If the defendant intended to claim a prescriptive easement upon plaintiffs’ lands, he should have pleaded it; and where he failed to plead such easement, or to plead the appropriate section of the statute, evidence as to a user before suit, for five years, to perform the acts complained of, merely had the effect to show similar acts of waste upon the lands of the plaintiffs.
Id.—Costs Made Incident to Judgment—Discretion of Court in Equity—Award not Required in Findings.—In a suit in equity,, the court has the discretion to make its award of costs to the prevailing party as an incident to its judgment pronounced in open, court; and it is not necessary that an award of costs should be incorporated in the findings or conclusions of law.
HALL, J.
This is an appeal by defendant from a judgment enjoining defendant from destroying plaintiffs’ fences on certain described lands of plaintiffs, and also from cutting down, digging up, removing or destroying any willow trees,
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brush or undergrowth standing or growing on plaintiffs’ said lands.
The lands of plaintiffs involved in this action include the same land in controversy in the action between the same parties and numbered 313, and the appeal in which we have this day determined. The two actions were tried together, and the same point as to the effect of a view of the premises by the judge of the trial court is made in this action as was made in the action
No.
313, and for the same reason we hold the point untenable.
Other points are also made by the appellant upon this appeal.
The complaint, among other things, alleges that defendant, at various times in the months of August and September, 1902, cut down, dug up, and destroyed willow trees and brush standing and growing on the lands of plaintiffs bordering on the bank of Carmel river, and threatens to continue so to do. This allegation is followed by others to the effect that the destruction of said trees and brush will weaken the northerly bank of said river, and tend to cause it to be washed away and destroyed, and if it should be washed away the waters of said river would immediately flow onto and over about two hundred acres of plaintiffs ’ land. The court found in accord with these allegations of plaintiffs’ complaint. The principal contention of defendant, other than the one in regard to the effect of the view of the premises by the court, is that no injunction should have been granted against defendant, for the reason that, being an owner of land bordering on the same stream opposite to and below the lands of plaintiffs, he had the right to cut down the trees and brush growing along the stream upon the lands of plaintiffs to remove and prevent obstructions to the flow of the stream.
It is a complete answer to such contention that no such defense was pleaded by the defendant in his answer to the complaint of plaintiffs. Defendant contented himself with denying the ownership by plaintiffs of the lands claimed by plaintiffs, and the destruction by defendant of the trees and brush, and certain other allegations of the complaint. There is not one word in his answer to suggest the idea that he did cut down the trees and brush, or that the removal or cutting "down of the trees was necessary, or was done for the purpose of removing or preventing any obstructions to the flow of
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