Majority
p. 20[No. 5885.] C. A. FLANDERS v. D. J. LOCKE.
Headnote
Replevin toe Dbuti Lumbbb.—Where lumber is drifted down a stream and lodges upon adjacent land, if the owner of the land disclaims damages the owner of the lumber is not bound to tender damages, in order to maintain replevin for the lumber.Appeal from the District Court of the Fifth Judicial District, San Joaquin County.
p. 21
The action was replevin for lumber drifted down the Mokelumne River, by plaintiff’s assignor. The answer was a general denial. At the trial, it appeared that the lumber lodged on defendant’s land, and he hauled it to his dwelling-house, where he split it up for cordwood. The defendant admitted lie had not been damaged by the lumber. After the plaintiff had introduced his evidence, the defendant moved for a nonsuit, which was granted. The plaintiff; having been denied a new trial, appealed.
Terry, McKinne & Terry, for Appellant.
Byers & Elliott, for Respondent.
The plaintiff was not a trespasser upon the land of the defendant, and as the latter had expressly disclaimed any damage, the plaintiff should not have been nonsuited for the failure to tender the amount of the supposed damage.
Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.