Chan Kiu Sing v. Gordon

SHAW, J.

The defendants appealed from the judgment and from an order denying their motion for a new trial.

The appellants executed to the plaintiffs a lease for twenty acres of agricultural land planted in asparagus, for the term of one year ending July 31, 1911. The plaintiffs claim that, upon the expiration of said term they held over for more than sixty days, and that, thereby, the said lease was renewed, under section 1161 of the Code of Civil Procedure, for another

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year expiring July 31, 1912. In January, 1912, without the consent and against the will of plaintiffs, the appellants, and others acting under their direction, entered upon the premises, ousted the plaintiffs, and plowed up and destroyed the asparagus growing thereon. The plaintiffs thereupon began this action to recover the damages alleged to have been caused by the trespass aforesaid. They alleged that they suffered damages therefrom in the sum of fifteen thousand dollars. The court found in their favor and assessed the damages at three thousand dollars.

The appellants demurred to the complaint on the ground that it was ambiguous in that it did not set forth separately the amount of damages caused by the respective acts of trespass alleged. It is unnecessary to determine whether or not this objection was well taken, since there was no claim on the trial that any damage was caused except by the destruction of the crop of asparagus. When the ease again reaches the lower court the plaintiffs may amend their complaint in this respect.

The evidence showed that the roots of asparagus are perennial, that the profits come from the shoots which grow therefrom each year, and that this land had been planted in asparagus for more than five years before the alleged destruction thereof. For the purpose of showing the damage caused by said destruction, the plaintiffs undertook to prove the probable yield and value of the crop which would have grown upon the premises during the remaining portion of the lease under which they held the same, if the asparagus roots had not been destroyed. They attempted to show the gross receipts and expenses of the premises for the five years preceding the destruction of this crop, in order to establish the average yield per acre of the land in ordinary years and under usual conditions. This was in accord with the rule established by the decision in