directions to overrule the demurrer to defendant's an

swer.

SEARLS, C., and VANCLIEF, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is reversed and the court directed to overrule the demurrer to defendant's answer.

HARRISON, J., GAROUTTE, J., Van Fleet, J.

[No. 19470. Department One.-July 20, 1895.]

JULIA V. STEWART, APPELLANT, v. JOHN W. SEF. TON, RESPONDENT.

TRESPASS-REMOVAL OF TREES-TREBLE DAMAGES.-To entitle a plaintiff who complains of the unlawful removal of trees from his land to treble damages, under section 733 of the Code of Civil Procedure, he must allege and prove that the defendant willfully and maliciously removed the trees knowing them to be his property. ID. REMOVAL OF TREES PLANTED IN GOOD FAITH-MISTAKE AS TO DIVISION LINE-ACQUIESCENCE-ESTOPPEL-DAMAGES.-Where the trees removed by the defendant were planted and cultivated while the defendant was in the actual and exclusive possession of the land through an innocent mistake as to the true location of a division line between his land and that of the plaintiff, growing out of the mistake of a surveyor in locating the line, whose survey was accepted and acquiesced in by the plaintiff until after discovery of the mistake, the plaintiff is estopped from claiming that the trees were any part of plaintiff's estate in the land, and he cannot, by protest, prevent the removal of the trees by the defendant while still in possession of the land before it is delivered up to plaintiff, nor can plaintiff claim any actual damages in consequence of their removal by the defendant. ID. NOMINAL DAMAGE.-In actions ex delicto nominal damages are often given, though no actual damage has been suffered; but a judgment for nominal damage is justified only on the ground that it can conserve some right of the plaintiff which has been nominally infringed, and which might be lost by acquiescence and lapse of time, and such damage is not required where no right or title of the plaintiff is jeopardized.

APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial. E. S. TORRANCE, Judge.

The facts are stated in the opinion.

Sweet, Sloane & Kirby, for Appellant.

The trees became a part of the freehold and were the property of the plaintiff, there being no agreement that defendant might remove them. (Civ. Code, sec. 1013; United States v. Land in Monterey County, 47 Cal. 516; Poor v. Oakman, 104 Mass. 318; Webster v. Potter, 105 Mass. 416; First Parish etc. v. Jones, 8 Cush. 184; West v. Stewart, 7 Pa. St. 122; Hunt v. Bay State Iron Co., 97 Mass. 279; Oakman v. Dorchester etc. Ins. Co., 98 Mass. 57.) Ignorance of title or mistake does not alter the rule that the improvements are part of the realty, and cannot be removed. (1 Washburn on Real Property, 8; Seymour v. Watson, 5 Blackf. 555; 36 Am. Dec. 556; Blair v. Worley, 1 Scam. 178; Kimball v. Adams, 52 Wis. 554; Ewell on Fixtures, 64; Rasor v. Qualls, 4 Blackf. 286; 30 Am. Dec. 658; Collins v. Bartlett, 44 Cal. 371; Atchison etc. R. R. Co. v. Morgan, 42 Kan. 23; 16 Am. St. Rep. 471.) Full knowledge of facts is essential to an estoppel. (1 Rapalje's Law Dictionary, 16; Scott v. Jackson, 89 Cal. 258; Code Civ. Proc., sec. 1692, subd. 3.) The party claiming the benefit of the estoppel must be ignorant of his legal rights, and have no means of acquiring knowledge. (Lux v. Haggin, 69 Cal. 255; Biddle Boggs v. Merced etc. Co., 14 Cal. 279; Stockman v. Riverside etc. Co., 64 Cal. 57.) Plaintiff may maintain the statutory action given to the owner of the land, and adverse possession could not defeat the right. (Barnes v. Jones, 51 Cal. 305; Code Civ. Proc. 733; Pomeroy's Remedies, sec. 232; Brown v. Bridges, 31 Iowa, 138; Fitch v. Gosser, 54 Mo. 267; Adams v. Farr, 5. N. Y. Suprm. Ct. 59; 2 Hun, 473; Robinson v. Wheeler, 25 N. Y. 252; Oregon etc. R. R. Co. v. Jackson, 21 Or. 360; Allison v. Little, 93 Ala. 150; Meehan v. Edwards, 92 Ky. 574; Arn v. Matthews, 39 Kan. 272.) The assertion of ownership and possession by the plaintiff before removal of the trees made their removal unlawful, and the adverse possession was terminated by recognition of plaintiff's title and the assertion of plaintiff's rights. (Peabody v. Hew

ett, 52 Me. 33; 83 Am. Dec. 486, and note, 497; Trotter v. Cassady, 13 Am. Dec. 185 (note). See note to Anderson v. Hapler, 85 Am. Dec. 324; 2 Wood on Limitations of Actions, sec. 270; Brickett v. Spofford, 14 Gray, 514; Oakes v. Marcy, 10 Pick. 195; Knox v. Jenks, 7 Mass. 488; City of San Jose v. Trimble, 41 Cal. 536; Tyler on Ejectment, 907, 908, 910.)

E. W. Britt, for Respondent.

The finding of adverse possession by defendant established disseisin of plaintiff. (Unger v. Mooney, 63 Cal. 590, 591; 49 Am. Rep. 100; Tyler on Ejectment, 84; 1 Washburn on Real Property, 5th ed., 82.) Disseisin has the properties of rightful possession until the wrong is repaired by the reinvestiture of the owner, and the disseisee cannot sue for injuries to the freehold while dispossessed. (McCall v. Neely, 3 Watts, 71; Cooley on Torts, 2d ed., 383, note 1; Rowland v. Rowland, 8 Ohio, 40; Allen v. Thayer, 17 Mass. 299; Bigelow v. Jones, 10 Pick. 163; Blood v. Wood, 1 Met. 533; Wood v. Lafayette, 68 N. Y. 190; Gillespie v. Dew, 1 Stew. 229; 18 Am. Dec. 42; Rogers v. Duhart, 97 Cal. 505, 506; Raffetto v. Fiori, 50 Cal. 363; Felton v. Justice, 51 Cal. 529; Uttendorffer v. Saegers, 50 Cal. 496; Heilbron v. Heinlen, 72 Cal. 371; Pennybecker v. McDougal, 46 Cal. 661; Smith v. Cunningham, 67 Cal. 262; Martin v. Thompson, 62 Cal. 618; 45 Am. Rep. 663; Page v. Fowler, 39 Cal. 412; 2 Am. Rep. 462; King v. Baker, 25 Pa. St. 188.) The question of adverse possession at the time of the removal of the trees was a question of fact to be determined by the trial court. (Alvarado v. Nordholt, 95 Cal. 116; Cannon v. Stockmon, 36 Cal. 539; 95 Am. Dec. 205; note to Peabody v. Hewett, 83 Am. Dec. 500, and cases cited.) The facts sustain the finding of adverse possession. (Code Civ. Proc. 323, 325; Grimm v. Curley, 43 Cal. 250; Whitman v. Steiger, 46 Cal. 258; Johnson v. Brown, 63 Cal. 391; Brown v. Bridges, 31 Iowa, 141; Ramsey v. Glenny, 45 Min. 401; 22 Am. St. Rep. 736; Edridge v. Kenning, 12 N. Y. Supp. 693; affirmed 129 N. Y. 625: French v.

Pearce, 8 Conn. 439; 21 Am. Dec. 680; McNamara v. Seaton, 82 Ill. 501; Caufield v. Clark, 17 Or. 473; 11 Am. St. Rep. 845; Zorn v. Haake, 27 N. Y. Supp. 40; Yetzer v. T'homan, 17 Ohio St. 133; 91 Am. Dec. 122.) Plaintiff is estopped by acquiescence from objecting to a removal of the improvements. (Dolde v. Vodicka, 49 Mo. 98; Helm v. Wilson, 76 Cal. 477, 486; Taylor v. Zepp, 14 Mo. 482; 55 Am. Dec. 113; Laverty v. Moore, 32 Barb. 347, 350, 351; affirmed 33 N. Y. 658; Cavanaugh v. Jackson, 91 Cal. 583; Major v. Rice, 57 Mo. 389; Joyce v. Williams, 26 Mich. 338, 339; Truesdail v. Ward, 24 Mich. 134, 135; Corkhill v. Landers, 44 Barb. 228; McKelway v. Armour, 10 N. J. Eq. 115; 64 Am. Dec. 445; Moyle v. Connolly, 50 Cal. 295; Silvarer v. Hansen, 77 Cal. 579; Bryan v. Ramirez, 8 Cal. 461; 58 Am. Dec. 340; Godeffroy v. Caldwell, 2 Cal. 489; 56 Am. Dec. 360; 2 Herman on Estoppel, sec. 1138, and cases cited; Scott v. Jackson, 89 Cal. 262; Swain v. Seamans, 9 Wall. 254; Dezell v. Odell, 3 Hill, 219; 38 Am. Dec. 628; Code Civ. Proc., sec. 1962, subd. 3.) Section 733 of the Code of Civil Procedure is to be strictly construed, and limited to cases of willful and malicious trespass. (Barnes v. Jones, 51 Cal. 303; Wallace v. Finch, 24 Mich. 255, 256; Cohn v. Neeves, 40 Wis. 393; McDonald v. Montana Wood Co., 14 Mont. 88; 43 Am. St. Rep. 616.)

VANCLIEF, C.-It is alleged in the complaint that on March 15, 1893, the plaintiff was the owner and in possession of the northwest quarter of the southwest quarter of section 28, township 16 south, range 1 west; on which day, and for a long time prior thereto, there were growing upon said land seventy-two lemon trees, the property of the plaintiff. That on said day "the defendant wrongfully entered upon said land, and willfully, knowingly, and maliciously, with full knowledge of the ownership of said property by plaintiff, dug up, removed, carried away, and converted to his own use the said lemon trees which were then and there growing upon said land," whereby plaintiff lost said trees, and the said

land was greatly damaged and lessened in value to the extent of one thousand dollars, "and thereby the defendant, under and by force of section 733 of the Code of Civil Procedure of the state of California, has become liable to pay the plaintiff treble the amount of said damage, and that no part of said damages has been paid. Wherefore, plaintiff prays judgment for said sum of one thousand dollars damages, and that the same be trebled under and by virtue of said section of the code, and for costs of suit."

In his answer the defendant denies that plaintiff owned or possessed the land or the trees. Denies that defendant maliciously, or with knowledge of plaintiff's ownership, dug up or removed said trees. And denies all the allegations of damage.

During the trial by the court without a jury the defendant, by leave of the court, amended his answer by adding thereto the following:

"For another and separate defense to plaintiff's alleged cause of action the defendant avers that, at the time of the digging up, removal, and carrying away of the lemon trees mentioned in the said complaint, the defendant was, and for the period of one year and upwards theretofore had been, in the actual, exclusive, notorious, and adverse possession of the lands and premises upon which the said lemon trees, and all of them, were situated. That while the defendant was so in such possession of the said premises, to wit, about the month of June, 1892, the defendant brought upon the said land, and there planted and set the said lemon trees and all of the same, and that such lemon trees were at the time and before they were so planted the property of defendThat the defendant cultivated, irrigated, and cared for said trees on the said land from the time of the planting thereof, as aforesaid, in the usual and customary manner, until the same were removed by him on or about the fifteenth day of March, 1893. That the defendant took possession of the said land on which the said lemon trees were planted and grew, and from

ant.