Schneider v. Brown

Hayne, C. This was a suit to restrain a trespass upon real property, and for damages. The trial court gave judgment for the plaintiff, and the defendants appeal.

The appeal from the order denying a new trial was not taken in time, and must be dismissed.

The appeal from the judgment was not taken within sixty days from its rendition, and therefore no question as to the insufficiency of the evidence can be raised.

The verdict of the jury was merely advisory, and therefore any error that may have occurred in the instructions is immaterial. (Dominguez v. Dominguez, 7 Cal. 426; Sweetser v. Dobbins, 65 Cal. 531.)

The original complaint was superseded by an amended complaint, and all questions as to the sufficiency of the former drop out of the case.

This leaves the question as to the sufficiency of the amended complaint as the main question to be considered. It alleges that the plaintiff was the owner and in possession of half of a quarter-section of land, and then proceeds as follows:—

“That on or about the twenty-ninth day of February, 1888, the defendants, knowingly, maliciously, and wrongfully, came upon said land with a number of teams and men, and began tearing up the soil and destroying the crops growing upon said land, and plaintiff is informed and believes that said defendants are still engaged, and intend to continue, in tearing up the said soil and destroying the crops upon said land; that the defendants threaten and give out, and intend if not restrained by injunction, to construct a large ditch across plaintiff’s land, twmnty feet wide and about three or four feet deep, said ditch being constructed near the southern boundary of plaintiff’s land, and along the full length for about half a mile on said land, leaving a strip of land between said ditch and said southern boundary, cutting off from the other part of said plaintiff’s land about ten acres, [207]which, without defendants’ interference, is of the market value of about two hundred dollars per acre, but which, with said ditch and excavation thereon, said land thus cut off from the main body of said land would be of little or no value, and said ditch will prevent the use and cultivation of the land occupied by said ditch and excavation, therefore injuring and destroying the land over which and in which said ditch is constructed, to plaintiff’s great damage, and defendants are contemplating and intend to divert a large quantity of water upon and over the land of plaintiff.”