Isom v. Rex Crude Oil Co.

GRAY, C.

One W: P. Book, of Los Angeles, wrote to the plaintiff at her residence, in the state of Mississippi, expressing a desire to rent a piece of land belonging to said plaintiff

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in the city of Los Angeles, for the purpose of erecting a tenement building thereon. In reality the land was valuable for oil, as Book well knew. He concealed all knowledge of oil from the plaintiff, and by fraud succeeded in getting a lease from her for three years, with the privilege of five more, at an agreed price of one hundred dollars per year. No permission was given in the lease to bore for oil, no reference to oil was therein made, and plaintiff had no knowledge that her land was of that character. Thereafter Book sold his lease to the defendant corporation, and the latter entered into possession of the premises, and, without the knowledge of plaintiff, extracted oil therefrom to the value of four thousand and seventy dollars. Some two years after the making of the lease plaintiff discovered the frauds which had been practiced upon her, rescinded the lease, and commenced this action against the defendant oil company, demanding treble damages, and that the oil company be enjoined from further operating the oil wells on the land, and that she recover possession of the property, etc. She had judgment in accordance with her demand, except that the court refused to treble the damages. For this reason she appeals from the judgment, and the sole point urged is, that she' was entitled, as a matter of law, under the findings and the provisions of section 732 of the Code of Civil Procedure to treble damages, and that the court having found the damages to be four thousand and seventy dollars, had no discretion to refuse to treble this amount.

Section 732 of the Code of Civil Procedure reads as follows: “If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.”

We are of opinion that it is not the purpose of this section to establish a rule of treble damages in all actions for waste, but rather to leave that matter to the discretion of the court. The word “may” used in the section is not a mandatory term, except when it is construed to mean “must,” and it is never thus construed “where there is nothing in the connection of the language or in the sense or policy of the pro