Power v. Fairbanks

ANGELLOTTI, J.

This is an action for six hundred dollars damages for trespass in the cutting down and removal of timber growing on land alleged to belong to plaintiff, and described in the complaint as the southeast quarter and the east half of the southwest quarter of section 5, township 15 north, range 11 east, M. D. M., and for an injunction restraining the further cutting of timber on said land. The answers deny any cutting of timber except upon the southwest quarter of said section 5, which, with the timber thereon, was alleged by such answers to be the property of defendants.

The defendants also served and filed a cross-complaint, alleging that they were the owners of the whole of the southwest quarter of said section 5; that plaintiff claimed some interest in the timber growing, thereon, and that such claim was wholly without right, and asking a decree adjudging them to be such owners and restraining plaintiff from making any such claim.

Plaintiff answered this cross-complaint, denying the allegations of ownership of defendants, and admitting and alleging his. own claim thereto.

[613]

There might be some question, as to the propriety of such a cross-complaint in an action of this character, especially in regard to real property not covered by the complaint, but that question is obviated by the fact that no objection was made thereto, the plaintiff answering the same and submitting without objection to a trial of the issues made thereby, and the subject-matter thereof being within the jurisdiction of the superior court. (See

Santa Barbara

v.

Eldred,

95 Cal. 378, 381.)

The trial was by the court without a jury, and the court found that the plaintiff was the owner of all the timber standing and growing upon the southeast quarter and north half of the southwest quarter of said section 5, and that defendants had, without plaintiff’s consent, cut down and removed therefrom timber of the value of $342, for which amount it gave judgment. The injunction asked for by plaintiff was denied.