Davidson v. Devine

Searls, C. This was an action to recover damages for an alleged trespass upon a mining claim," and for an injunction.

Plaintiff had judgment for one cent damages, costs of suit, and a perpetual injunction against defendant.

A motion for new trial wasjnade and denied. Defendant appeals from the final judgment only, and not from the order overruling the motion for new trial.

There is no bill of exceptions or statement on appeal, and we can only look to the judgment roll in determining the propriety of the action of the court below.

The perpetual injunction was warranted by the complaint, and in the absence of any statement, we must presume the evidence was sufficient to justify its issuance.

The awarding of costs to the plaintiff was within the discretion of the court upon decreeing a perpetual injunction.

This leaves nothing to. be considered but the validity [520]of the judgment for one cent damages, rendered upon a special finding of a jury, which is attacked for want of preciseness.

The answer does not deny cutting timber upon the premises, which are found by the jury to belong to the plaintiff, and if if did, we must presume, in the absence of a statement, that there was ample testimony to support the findings.

The finding to which exception is taken is in answer to the following questions:—

“Has the defendant cut upon and taken, from the premises described in the complaint, without permission of the owners, any wood since 1870, and prior to the. commencement of this. suit? If so, what damage was done to plaintiff?”

The answer is as follows:—

“Yes.. Damages nominal.”

Under the pleadings, admitting the cutting of the wood by defendant, it must follow that when the ownership of the premises was established in plaintiff, he was entitled as a conclusion of law to nominal damages.

Every trespass upon real property imports an injury, for which the law gives nominal damages. (Atwood v. Fricot, 17 Cal. 38.)