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District Court of Appeal, First District, Division 2, California.


Civ. 12448.

Decided: July 26, 1943

Earl C. Berger, of Los Altos, for appellant. Kenneth R. Malovos and Herman J. Mager, both of San Jose, for respondent.

This was an action for damages for the destruction of and injuries to trees forming part of an orchard owned by the plaintiff. The damages were caused by the defendants when they moved a house along a road bordering the orchard. The complaint was framed in two counts; the first was for damages for the negligent injury to the trees and the second one sought treble damages and attorneys' fees for “deliberate” injury to the trees. The lower court gave judgment for actual damages only. This appeal is taken by plaintiff from “that part of the judgment which disallows treble damages, costs and disbursements.”

Defendant Lawrence Anderson, who owns the house moving business conducted under the name of Anderson Brothers, was in Alaska at the date of the injuries to plaintiff's trees and at the date of the trial. His brother Albert Anderson, another defendant, was his employee and was directing the moving of the house at the date of the injuries complained of. Plaintiff's orchard is in Santa Clara County near the town of Mountain View. It is bordered on one side by Levin Avenue down which the defendants were moving a house. Before proceeding down Levin Avenue, Albert Anderson observed that to proceed it would be necessary to touch the bordering trees at least on one side. He chose to strike those of plaintiff which bordered the road rather than the trees on the other side which had power poles interspersed among the trees bordering the road. He stated that it was his judgment that “the house would brush by the limbs without any extensive damage to the trees.” After striking the limb of the first tree and breaking it at its joinder with the trunk, he continued down the road, damaging thirty–nine trees. To facilitate the house's passage along the roadway with the least amount of damage to the trees he sawed off some limbs which he feared would break farther back and thus cause permanent damage to the trees.

With respect to the intent with which the damage was done the trial court found “That although the initial damage inflicted by defendants may have been accidental, the ensuing damage was not accidental, rather, it was incurred with the knowledge of the defendants that same would result if they continued to move the load further, which they did, and also when they used saws and other tools to remove limbs and branches, and in carrying same away from plaintiff's premises.”

The principal question presented by the plaintiff's appeal is the scope and application of section 733 of the Code of Civil Procedure and section 3346 of the Civil Code. Although plaintiff asserts in her brief that the judgment erroneously does not run against Ellis Anderson, another defendant who was present during the house moving, and seeks to have this error corrected, “Upon an appeal from a part of a judgment or order not so intimately connected with the remainder that a reversal of the part appealed from requires a consideration of the whole case in the court below, an appellant court can review only the portion appealed from.” 2 Cal.Jur. 807, Whalen v. Smith, 163 Cal. 360, 362, 125 P. 904, Ann.Cas.1913E, 1319. We can not see that there is any connection between the rights of plaintiff against Ellis Anderson and the rights of plaintiff to treble damages; therefore, we are limited in the questions to be presented on appeal by the plaintiff's notice of appeal which specified that she appealed only from that part of the judgment disallowing “treble damages, costs and disbursements.”

Section 733 of the Code of Civil Procedure reads as follows: “Trespass for cutting or carrying away trees, etc., actions for: (Treble damages). Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction.” Emphasis ours.

Section 3346 of the Civil Code reads as follows: “Injuries to trees, etc. For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken by the authority of highway officers for the purposes of a highway; in which cases the damages are a sum equal to the actual detriment.” Emphasis ours.

The appellant contends that the awarding of treble damages is mandatory under these two sections of the codes. She argues that upon a showing of a wrongful injury to trees without more, it is incumbent upon the trial court to grant treble damages. Section 251 of the Practice Act, which is substantially the same as section 733 of the Code of Civil Procedure, was construed in Barnes v. Jones, 51 Cal. 303, 306. In that case it was determined that the statutory measure of damages could not be imposed in the absence of pleading and proof that the trespass causing the injury to the trees was “willful.” The supreme court, in interpreting section 733, relied on Barnes v. Jones, supra, in Stewart v. Sefton, 108 Cal. 197, at page 206, 41 P. 293, at page 296, in which case the court said, “To entitle the plaintiff to treble damages, under section 733 of the Code of Civil Procedure, she must have proved her allegation that defendant willfully or maliciously removed the trees, knowing them to be the property of plaintiff.” Again in Butler v. Zeiss, 63 Cal.App. 73, 218 P. 54, 55, an award of treble damages under section 733 in favor of plaintiff was affirmed on the ground that plaintiff had pleaded and proved that the defendant “wilfully and maliciously” cut down and destroyed the plaintiff's trees. From these authorities it seems clear that in this state it is necessary, in order to recover treble damages under these code sections, to prove that the defendant acted willfully or maliciously. Although the problem was not discussed, the court in Mosesian & Sons v. Danielian, 52 Cal.App.2d 387, 390, 126 P.2d 363, assumed that to entitle the plaintiff to recover treble damages under section 3346 of the Civil Code it was also necessary to prove that the defendant wrongfully and maliciously removed the trees.

The appellant next contends that, even if to recover treble damages under the code sections it is necessary to plead and prove “willfulness and maliciousness,” such pleading and proof were offered in this case. She argues that the finding of the court that defendants knowingly inflicted the damage is tantamount to a finding that defendants did the acts “wilfully and maliciously” within the requirements which have been read into the statutes by the above–cited cases. She asserts that all that is required to come within those cases is a showing of malice in law, not malice in fact, and that on the facts before us it is clear that the defendants intentionally and knowingly disregarded the rights of others.

From the historical development in the above three cases, it seems clear that the words “willfully” and “maliciously” were used synonymously. Although no case has been cited, nor has our research disclosed one, that directly defines the words which have been read into the statute under consideration by the courts, we do find that the court has directly considered the problem in connection with section 3345 of the Civil Code, into which section the same requirement of willfulness has been read, and which section is comparable in purpose and scope to the section immediately before us. It should be noted that section 3345 of the Civil Code was mandatory by its use of the words “must pay * * * treble rent” and has been impliedly repealed by the amendment to section 1174 of the Code of Civil Procedure in 1907. Field v. Walton, 94 Cal.App. 596, 599, 271 P. 500. In Alden v. Mayfield, 33 Cal.App. 724, at page 727, 166 P. 382, at page 383, in reversing the trial court which refused to give the plaintiff treble rent, the court said: “Doubtless the word ‘willful’ is used in different statutes with various shades of meaning, but herein the conduct of defendant in refusing to surrender possession was deliberate, intentional, and obstinate, with knowledge that the tenancy was terminated, and that he was holding over against the will and consent of the landlord. We think nothing more is required to constitute willfulness on the part of the tenant.”

For many illustrations of the use of the term, and of the different significations attached to it, we may refer to Words and Phrases, Perm.Ed., vol. 45, page 190. The following quotation therefrom is instructive: “The word ‘willfully’ has various meanings, and is used to denote the quality of an act, or the intent with which it is done. It is frequently used in the sense of intentionally, willingly, designedly, or with set purpose. When used in criminal statutes, it usually means with a malevolent purpose or motive, with a wicked or criminal intent, especially if the forbidden act is one that is wrong in itself or involves moral turpitude; but if the forbidden act is not wrong in itself, or does not involve moral turpitude, the word is then used in the sense of intentionally or purposely, so that when the act is so done it is done willfully. The word, however, should be given that meaning only which the context indicates was intended. United States v. Sioux City Stock Yards Co., C. C., 162 F. 556, 562.”

It is conceded by both parties that no satisfactory interpretation of the code sections relating to treble damages for injuries to trees is to be found in our decisions. A strict construction of these sections would indicate that the right to sue for treble damages is given to the landowner where trees upon his land are cut or injured, and that the same right is given the city or town when trees are cut or injured which are on the street or highway in “front of any person's house, village, or city lot” or other public property. A liberal construction of the section would permit the landowner to sue if the damage was done to trees in front of his house or cultivated grounds. The Civil Code section limits the right to sue to recover for injuries to trees “upon the land” of another. At the time these sections were enacted, in 1872, section 2633 of the Political Code was enacted reading, in part: “Any owner or occupant of land adjoining a highway * * * may plant trees on the side contiguous to his land * * * not more than six feet from the boundary of the highway * * * Whoever injures any of them is liable to the owner * * * for the damage which is thereby sustained, and is guilty of a misdemeanor.” At the same time section 2755 of the Political Code was enacted reading: “Whoever digs up, cuts down, or otherwise injures or destroys any shade or ornamental tree planted and standing on any highway forfeits twenty–five dollars for each such tree, and is guilty of a misdemeanor.” In 1883 the latter section was repealed and reenacted in section 2742 omitting the permission to the landowner to plant within the boundaries of the highway and this section was, in turn, carried into section 1495 of the Streets and Highways Code in the codification of 1935, St.1935, p. 339. This section reads: “Any person who maliciously digs up, cuts down, injures or destroys any shade or ornamental tree on any county highway, unless such tree is considered an obstruction by the road commissioner and is removed under his direction, is liable to a penalty of one hundred dollars, recoverable as provided in section 1496, for each such tree.” It will be noted that the original section 2755, taken with section 2756, gave the right of action to the public to recover the penalties for injuries to the trees and made the offending party guilty of a misdemeanor. The latter provision was eliminated when the section was re–numbered 2742 in 1883 (Stats.1883 p. 19); but at the same time the word “maliciously” was added, so that malicious or wilful injury was an element in an action to recover the penalties, as in the former section wilful intent would be necessary in a criminal charge of misdemeanor.

Reading these sections all together as they were enacted in 1872, as we are required to do to determine the legislative intent at that time, we find that the landowner was given special permission to plant ornamental and shade trees within the boundaries of the public highways, but that, for any injury to such trees, the public was given the right to sue the wrongdoer for penalties, and to prosecute for a misdemeanor. (The amended statutes were held applicable to fruit, as well as shade and ornamental trees, in County of Santa Barbara v. More, 175 Cal. 6, 12, 164 P. 895, L. R.A.1917E, 385.) Then, in the Civil Code section, the owner of the land was given the right to sue for treble damages for injuries to his trees “upon the land,” and in section 733 of the Code of Civil Procedure the “owner of such land” was given the same right as to injuries to “any tree or timber on the land,” and the city or town was given the same right when the tree injured is “on the street or highway in front of any person's house, village, or city lot.” But it is clear that none of the sections covered a situation such as we have here, where the trees base wholly upon the private lands of the owner and their branches extend over the travelled portion of a county highway. It cannot be disputed that if trees planted in this manner are permitted to extend over and into the public highway they may create both a public and a private nuisance in so far as they obstruct the free public use of the highway. Section 3479 of the Civil Code defines a nuisance as “Anything which * * * unlawfully obstructs the free passage or use, * * * of any * * * public park, square, street, or highway * * *.” Section 3495 provides that: “Any person may abate a public nuisance which is specially injurious to him by removing * * * the thing * * * without committing a breach of the peace.”

Hence, when the defendants found themselves in the predicament where their forward progress was blocked by the overhanging branches and a retreat would block the traffic upon the main state highway, they were put to their election to determine whether the general laws relating to abatement of nuisances would prevail over the special laws relating to the rights of the landowner in the portion of his trees which extended over and obstructed the free use of the highway. Since this is a question which our courts have not determined, the layman should not be charged with malice if he determined that the general rules relating to nuisances prevailed. This is the purport of the opinion of the trial judge preceding the signing of the findings. In denying treble damages because of the failure to show malice or wilfullness the trial judge said:

“I am of opinion in that the facts of this case do not justify a trebling of damages. The first damage was accidental––a negligent accident, perhaps; but still unintended and without malice or expectation of wrongdoing.

“The damage next following was the result of an awkward attempt to repair part of the first damage. And finally the succeeding damage was caused by poor judgment in endeavoring to escape from the difficult situation which had then developed.”

It should be noted that the complaint did not allege malice nor wilfullness, but alleged that the defendants “did deliberately damage the trees, limbs, branches, leaves and fruit of said plaintiff * * *.” The proof was in accord with these allegations, and, if we may treat the code sections as penal in purpose and effect, there is a want of pleading and proof of “a malevolent purpose or motive, with a wicked or criminal intent.” United States v. Sioux City Stock Yards Co., supra [162 F. 562].

But, assuming that the code sections should be given the liberal construction for which the appellant contends, we are still confronted with the question whether they are mandatory so that the court must award treble damages in every case of deliberate injury to trees. Section 733 of the Code of Civil Procedure appears in Chapter II, which is entitled “Actions for Nuisance, Waste, and Willful Trespass, in Certain Cases, on Real Property”. Several sections of the chapter clearly make it discretionary with the trial court whether treble damages should be awarded. Section 732, relating to waste, and section 735, relating to forcible entry, were enacted at the same time as section 733, and no reason has been advanced calling for a different interpretation. The language of section 733 is that the offending party “is liable” for treble damages “which may be assessed.” Section 3346 of the Civil Code appears in Article III, which is entitled: “Penal Damages.” All the other sections of that Article contain the mandatory language “must pay.” The word “may” in ordinary statutory and judicial acceptance is permissive and not mandatory. When we examine all these statutes of 1872 which have hereinabove been noted, particularly those enacted to the same purpose but calling for criminal prosecution for a misdemeanor, we can find no reason of policy or principal which would require us to hold that this particular section was intended to be mandatory.

If we are correct in this conclusion the only question remaining is whether the trial court abused its discretion when it denied the imposition of treble damages. When we speak of judicial discretion we refer to the power of the trial court to decide what is just and proper under all the circumstances of the case before it. When we speak of an abuse of judicial discretion we do not mean merely that we would have decided differently under the same state of circumstances, but we give to the trial court the benefit of the presumption that official duty has been regularly performed––that the trial court has acted fairly and with sound judgment in the light of all the circumstances before it. Chief Justice Marshall said, in Osborn v. Bank of United States, 22 U.S. 738, 866, 9 Wheat. 738, 866, 6 L.Ed. 204: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it.” When a trial court has thus acted, exercising its best judgment upon the occasion that calls for it, the appellate court will demand more than a nisi prius argument on the merits of the controversy before it will say that such discretion has been abused.

Here the undisputed evidence is that the branches of appellant's trees extended six feet or more into the highway proper, that, though they did not interfere with the ordinary traffic of passenger automobiles upon the center pavement, they were an obstruction and hindrance to the passage of large trucks and similar vehicles. These facts were pleaded as a defense and the evidence would have supported a finding favorable to respondents. Though we do not hold that, under these particular circumstances, they had the legal right to remove such obstructions, since none of our decisions have clearly determined the question, we do say that these circumstances add support to the conclusion of the trial court that respondents should not be penalized by the addition of treble damages because they may have incorrectly judged their legal rights and responsibilities under the circumstances.

This disposes of the appeal from that portion of the judgment denying appellant's recovery of attorney's fees.

The portions of the judgment appealed from are affirmed.

NOURSE, Presiding Justice.

SPENCE, J., and DOOLING, J., pro tem., concur.