Wolfe v. Wallace

SCHOTTKY, J. Plaintiffs have appealed from an order granting a motion by defendant A. R. Maede for a change of venue from Sonoma County to Lake County. Defendants Wallace and Eddings filed a demand for retention of the cause in Sonoma County.

The complaint alleges that the defendants entered upon plaintiffs’ land in Lake County and cut down and carried away 15 pine trees valued at $700; that the cutting destroyed the scenic value of the property and lowered its market value in the amount of $6,500; that the acts of the defendants were wrongful, malicious and wanton and contrary to section 733 of the Code of Civil Procedure, and plaintiffs ask treble damages for loss of timber and loss of value of the land in the sum of $21,600.

The ground upon which the motion was based and upon which it was granted was that the action involved injuries to real property which was located in Lake County and that under section 392 of the Code of Civil Procedure, the proper county for the trial was in Lake County.

Code of Civil Procedure, section 392, provides in part:

“ (1) . . . the county in which the real property, which is the subject of the action, or some part thereof, is situated, is the proper county for the trial of the following actions:

“ (a) For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property.”

In referring to this section, the court, in Standard Brands of California v. Bryce, 1 Cal.2d 718, 720 [37 P.2d 446], said: “Whether the place of trial is governed by this section is to be determined by the subject matter of the action as shown by the complaint. ’ ’

[525]The decisions upon which the trial court relied, and upon which respondent relies in this court, are Ophir Silver Mining Co. v. Superior Court (1905), 147 Cal. 467 [82 P. 70, 3 Ann. Cas. 340], and Las Animas & San J oaquin Land Co. v. Fat jo (1908), 9 Cal.App. 318 [99 P. 393], In the Ophir Silver Mining Company case the petitioners were granted a writ of prohibition to quash proceedings in which they were the defendants on the ground that the complaint alleged a local action that should be tried in the jurisdiction where the land involved was situated. The action was for an accounting and an injunction restraining the defendants from removing ore from the plaintiffs’ land situated in Nevada. The court, speaking through Chief Justice Beatty, said at page 473: