Martin v. Ray

KINCAID, J. pro tem. Defendants appeal from a judgment for plaintiffs wherein nominal damages of $10 are awarded and the court, by way of mandatory injunction, directs the defendants to forthwith remove from the easements described in the findings a certain transplanted oak tree, an open ditch and dam constructed by defendants thereon, and to restore the surface of such easements to status quo ante.

By leave of court first had, plaintiffs filed a supplemental complaint of July 26, 1943, which added a claim for damages to the requested injunction. Paragraph I of such supplemental complaint is made up almost entirely of a lengthy metes and bounds description which purports to describe the [466]easements in question. The answer of defendants was filed, with denials of all material allegations except as to such paragraph I. As to it a separate written stipulation was executed by the parties, through their attorneys, and filed, to the effect that the failure of defendants to answer such paragraph shall not be deemed to be an admission of its allegations but that the same shall be deemed denied, each of the parties reserving the right to establish the facts which are the subject of such paragraph at the time of trial.

Two other eases (Superior Court Nos. 467137 and 487649) involving different issues were tried consecutively with this case (No. 467136) and it was stipulated that all evidence received in the three cases should be embraced and considered in each case.

The trial of the within ease began on July 31, 1944, and before any evidence was received defendants’ counsel asked leave of court to file an amended answer to plaintiffs’ supplemental complaint and a cross-complaint, both such documents having been served upon plaintiffs’ counsel six days previously. The court was then advised that the only change made by the proposed amended answer was to add a traverse to paragraph I of the supplemental complaint denying that the oak tree was located upon any easement and setting up what defendants contend are the proper legal descriptions of the easements in question which would show that the property upon which the oak tree was located was owned by defendants free of any easement rights. The proposed cross-complaint set forth a cause of action against plaintiffs, as cross-defendants, for revision and reformation of a quitclaim deed. Defendants’ counsel further advised the court and offered to prove that the filing of such amended answer and cross-complaint was made necessary by the discovery, since the commencement of the other trials hereinabove mentioned, of a clerical error in the legal descriptions contained in a quitclaim deed from plaintiffs to defendant Mary Louise Ray, by reason of which a small triangular section of land upon which the oak tree in question is now located was mistakenly omitted by an escrow typist and which was intended by such parties to have been included therein; that such quitclaim deed was to have covered the whole of an easement which had theretofore been reserved by plaintiffs over a parcel of land referred to in the ease as parcel G and which easement ran in a generally southwesterly direction from a point where it connected