Cook v. Rice

Temple, C. The plaintiff, in his complaint, avers that on the second day of February, 1888, he was lawfully possessed of the east half of the northwest quarter of section 4, township 21 south, range 9 east, Mount Diablo meridian; that he had fencing on the same to the value of fifty dollars, which the defendants on said day maliciously destroyed, to his damage in the sum of fifty dollars; as a separate cause of action, that he has planted and sown on the same tract a crop of grain, in extent about eighty acres, of the value of five hundred dollars, which he had fenced and inclosed; that defendants cut down and destroyed his fence, and drove their stock in and upon his grain, to his great and irreparable damage; that they threaten to tear down any fence which he has or shall construct to protect said grain, and, if not restrained, will tear down and destroy his fences, and drive their stock upon his grain, and destroy the same, to his damage in the sum of five hundred dollars; that they are wholly insolvent. He therefore demands judgment for three hundred dollars damages, and that they be enjoined from cutting down or destroying his fences, or from wasting his premises.

The complaint does not aver any title in the plaintiff, but possession only; and does not deny that the respondents have title to the land, or that their entry was rightful.

[666]The answer denies the possession of plaintiff, the alleged trespass, and the damage.

In the answer to the last cause of action, defendants admit the possession of plaintiff as to ten acres of the land, which is specifically described, and deny that they have ever in any way entered or trespassed upon the same.

They aver as to the remainder of the land, that the defendants have been in occupation and possession thereof since May, 1886, and that a large portion thereof had been plowed and sown by them, and that plaintiff, while they were so in possession, wrongfully and unlawfully entered, with threats, force, and violence, and replowed and resowed and attempted to inclose the same, and to drive the defendants from the premises; and except as to the said ten acres, plaintiff has no possession, except the said forcible occupation.

They also plead as an estoppel a judgment in favor of D. M. Rice, against plaintiff, wherein it was duly adjudged that plaintiff was not possessed or entitled to the possession of any part of the land except the ten acres specifically described; that plaintiff has, since the institution of said action, acquired no new or further right or title to said land; that the defendant Mrs. D. M. Rice is the wife of the said D. M. Rice, and claims no interest in the land, and her acts are those of a member of the family of the other defendant, and in privity with his title.