Clark v. Torchiana
Before: Lennon
Synopsis
Action fob Damages fob Trespass on Beal Property—Defendants Jointly Charged—Plea of Owners as to Act of Independent Contractor—Order Granting New Trial—Appeal.—In action for damages for trespass to real property, where three defendants were jointly charged, and two of them were owners of adjoining property who pleaded in defense that the sole liability was that of an independent contractor who had been employed by the adjoining owners to construct a street, it is held that upon appeal from an order granting a new trial as to all of the defendants, the sufficiency of such defense cannot be considered.
Id.—Order Granting New Trial—Beview upon Appeal—Sufficiency of Pleadings not Beviewable.—A new trial is a re-examination of an issue of fact, and the sufficiency of the pleadings, either to support the plaintiff’s cause of action or to maintain any particular defense relied upon, is not involved in such re-examination of an issue of fact, and therefore cannot be considered upon appeal from an order granting a new trial.
Id.—General Order Granting New Trial as to Three Defendants— Improper Order as to Independent Contractor.—In the action of trespass brought against three defendants for injury to plaintiff’s lot, and cutting off a portion thereof in the construction of a street, where the judgment was against them jointly, and a new trial was granted as to all of the defendants, where the evidence clearly shows that two of them were the owners of lots who had committed no trespass upon the plaintiff’s land, and that the other defendant was an independent contractor employed to construct the street, who was alone liable for the trespass committed, it is held that the new trial was properly granted as to such two defendants .and improperly granted as to such independent contractor.
Id.—Change of Common-law Bule as to Effect of Vacating Order as to All Joint Tort-feasors.—The settled cómmon-law rule that when a verdict or judgment against several persons jointly charged as tort-feasors is set aside for error as to one or more of them, a reversal of the same is necessitated as to all of them, has been materially modified, if not entirely suspended, by statute in this state, in which it is now the rule that, if a verdict and judgment be given against several persons sued jointly, the verdict, if found erroneous as to one of them,- may be vacated as to that one only, and continue in full force and effect as to the remaining defendants.
Id.—Question of Actual Damages—Punitive Damages not Involved. Where the evidence clearly shows that the amount of actual damages to plaintiff’s land exceeded the amount allowed by the verdict of the jury, no question of punitive damages is involved in the case or arises upon the record.
LENNON, P. J.
This is an appeal, upon a bill of exceptions, from an order granting a new trial in an action for damages for trespass to real property.
The plaintiffs, for cause of action, pleaded practically the following facts: The plaintiffs were the owners of a lot of land peculiarly adapted to residence purposes in the city of Santa Cruz. Plaintiffs purchased this land from the defendants Anderson and Torchiana, and as a part of the consideration for its purchase said defendants agreed with the plaintiffs to cut and construct a public street immediately south of the southerly boundary line of said lot. Subsequent to the sale of the lot the defendants, Anderson and Torchiana, and the Pratchner Company, jointly commenced to construct the proposed street upon lands previously surveyed and staked out, and which if followed would have kept the course of, and location of, said street free and eleár of plaintiffs’ lot. The defendants, in the construction of said street, knowingly and willfully, and without the knowledge or consent of the plaintiffs, deviated from the surveyed line of said proposed street, and entered upon the plaintiffs’ lot at the southeasterly part
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thereof, and removed therefrom large quantities of earth and soil, and constructed said street through a portion of said lot, all to plaintiffs’ damage in the sum of $750.
The several defendants answered separately. They, in effect, denied all of the material allegations of the complaint. In addition, however, the answer of the defendant Anderson averred that the construction of the proposed street “was a neighborhood affair, to which all the neighbors beneficially interested donated funds and land, and that the only obligation which this defendant took upon himself was to donate his interest in part of the land covered by said proposed street, and to pay one-half of the total cost of construction less the amount paid by all the neighbors with the exception of his codefendant, H. A. Van C. Torchiana, who agreed to pay the other half; that he acted as agent for all the interested parties, and engaged the contracting firm, the George C. Pratchner Co., a corporation, to cut said street in accordance with the survey previously made, . . . and that he instructed said contracting company to build a good and sufficient grade on and upon the lands conveyed by this defendant and his co-defendant Torchiana for the benefit of himself, his eodefendant and all parties interested. . . . That he did instruct said contracting firm of George C. Pratchner & Co. to proceed with the construction of said road, and that he let a contract, as agent for all the parties beneficially interested in the construction of.said road, to said George C. Pratchner Co., and that he never knew during the construction of said road that said contractor in any way infringed upon the rights of said plaintiffs or either of them, but was only informed after the road was fully finished that said contractor had made a slight mistake and had cut into a small corner of plaintiffs’ land.”
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