Wolfe v. Wallace

• Decision Date: 18 October 1957
• Citation: 65 A.L.R.2d 1264,316 P.2d 697,154 Cal.App.2d 523
• Court: California Court of Appeals Court of Appeals
• Parties: , 65 A.L.R.2d 1264 Edward M. WOLFE and Mrs. Edward M. Wolfe, his wife, Plaintiffs and Appellants, v. A. L. WALLACE, W. L. Eddings, A. R. Maede, Maynard Whiteley Lumber Co., a corporation, Defendants, A. R. Maede, Defendant and Respondent. Civ. 9172.

Page 697

316 P.2d 697

154 Cal.App.2d 523, 65 A.L.R.2d 1264

Edward M. WOLFE and Mrs. Edward M. Wolfe, his wife, Plaintiffs and Appellants, v. A. L. WALLACE, W. L. Eddings, A. R. Maede, Maynard Whiteley Lumber Co., a corporation, Defendants, A. R. Maede, Defendant and Respondent.

Civ. 9172.

District Court of Appeal, Third District, California.

Oct. 18, 1957.

Todd & Todd, San Francisco, and Kasch & Cook, Ukiah, for appellants.

Phil N. Crawford, Lakeport, for respondents Maede.

Fraser & Bruchler, Lakeport, for respondents Wallace & Eddings.

Gesford P. Wright, Lakeport, for respondents Maynard Whiteley Lumber Co.

SCHOTTKY, Justice.

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, 447, 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.'

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, and Las Animas & San Joaquin Land Co. v. Fatjo, 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 in 147 Cal. at page 473, 82 P. at page 72:

'* * * There is no doubt that the owner of land, if he chooses to waive all claim for damages to the freehold, may maintain a personal action for the value of timber or ores removed from the land by a naked trespasser, and the mere fact that in such action he may be compelled to allege, and, if denied, to prove, ownership of the land from which the timber is cut or the ore extracted does not make the action local. There is as little doubt that, where the whole or any part of the damages claimed is for injury to the freehold, the action is local and not transitory. The basis of this distinction is stated by Chief Justice Marshall in the course of his opinion in Livingston v. Jefferson, Fed.Cas.No. 8,411, 1 209: 'Actions are deemed transitory where the transactions upon which they are founded might have taken place anywhere, but are local when their cause is in its nature essentially local.' As land can be injured only where it is situated, damages for such injuries can only be recovered where it is situated; but since timber or ores, when severed from the land by the act of a trespasser, remain the personal property of the owner, and are capable of being converted by any person anywhere, an action to recover only the value of the ore or timber after severance is transitory, and may be maintained wherever the trespasser can be served with summons. The validity of this distinction has been doubted, but the great authority of Lord Mansfield was exerted in vain to set it aside in England, and it has been enforced, not only there, but in most of the United States. In this state the rule is statutory that an action for injuries to real property must be tried in the county where the land is situated, except in those cases where a change of the place of trial may be ordered for special reasons. Code Civ.Proc. § 392. So that if an action were commenced in this state for a trespass upon land situated within this state, consisting in the cutting and removal of timber, or the digging and carrying away of ores, and any part of the damages claimed was for injury to the freehold, as...