Lindroth v. Windbigler

AGEE, J. Defendants cut and removed timber valued at $4,515 from plaintiffs’ land without permission. They appeal from that portion of the judgment which awards double this amount as damages.

Under section 3346 of the Civil Code, if such a trespass is wilful and malicious,1 “the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary,2 . . . the measure of damages shall be twice the sum . . . .”

The section also provides that, where the trespasser relies upon a mistaken boundary line fixed by a licensed surveyor, the measure of damages shall be the actual detriment incurred. Here, however, the trial court’s finding is that “the [boundary] line upon which Defendants relied was not one established by a licensed surveyor.”

The trial court further found that the trespass was casual and involuntary and not “wilful and malicious.” It therefore denied treble damages.

Defendants do not contend that any of the findings are not supported by the evidence. Their sole contention is that the issue of double damages was not properly before the trial court. We do not agree.

Plaintiffs’ complaint alleges that “the trespass and acts of the Defendants and each of them were not casual or involuntary, but on the contrary, were wilful and malicious . . .; that as a result thereof Plaintiffs are therefore entitled to treble damages . . . . ”

Defendants were thereby advised at the very outset of this litigation that plaintiffs were making an issue as to which measure of damages was applicable, viz., that applied to a “wilful and malicious” trespass (treble) or that applied to a casual and involuntary trespass (double). (Civ. Code. § 3346.)

[846]The pretrial conference order does not expressly mention “double damages” but states that “The issue of wilfullness is also presented by the complaint ... to determine whether or not treble damages should be awarded.”

This reference to what is “presented by the complaint” on the subject of treble damages, when viewed in the light of the allegation therein which adopts the exact wording of the provision in section 3346 applicable to double damages, demonstrates that the issue presented was “wilful and malicious” trespass (treble damages) versus “casual or involuntary” trespass (double damages).