Richards v. Silveria

FINCH, P. J.

The plaintiffs leased to the defendant a tract of land containing about seventy-nine acres for a term of ten years, commencing December 1, 1921. This action was brought April 10, 1925, to recover damages for alleged waste committed by the defendant and for other alleged breaches of the terms of the lease, but the plaintiffs did' not claim a forfeiture of the defendant’s rights under the lease and he continued in possession of the property. In' addition to denials of the alleged breaches of the lease, the defendant filed a cross-complaint for damages on account of alleged breaches of the lease by the plaintiffs. Judgment was entered in favor of the plaintiffs and the defendant has appealed. The particular issues raised by the pleadings and in question here appear from the findings of the trial court substantially as follows:

By the terms of the lease the defendant agreed not to “make or suffer any strip or waste” on the premises. In April, 1922, the defendant plowed up about “twenty acres of bunch grass pasture land,” which “constituted desirable pasture lands.” Such bunch grass “is of sueh^a nature that if plowed down it dies and . . . cannot be produced from artificial seeding.” The land on which it grew is not suitable for other crops and by the destruction of the bunch grass growing thereon the market value thereof was depreciated in the sum of $300.

At the time the defendant went into possession under the lease there was on the land an orchard of one acre in area of fig trees “then approximately two years old, ... in reasonably healthy condition. . . . During the first year of said term of lease said defendant, without the consent or knowledge of said plaintiffs and contrary to the terms of said lease did wholly destroy and kill said- growing fig orchard,” and the market value of the land, was thereby depreciated in the sum of $350.

The plaintiffs removed “certain apple trees and certain pear trees” from the leased lands, leveled part of the land and for a short time went into possession of about four acres of the land, all with the consent of the defendant.

[169]

Plaintiff Ed Richards testified that the plaintiffs’ acts of which the defendant complains in his cross-complaint were done with the latter’s consent. This testimony is sufficient to support the court’s findings in that respect and, therefore, the issues presented by the cross-complaint may be dismissed from further consideration.