The Nevada Democrat., 1858-04-07


Attorneys submitted on behalf of the respective
parties, the testimony made part of this report
that said cause was on succeeding to wit, this
day, argued and submitted TO the Referee, who
finds the following to be
THE FACTS:
1st That at the date mentioned in complaint plaintiff
possessed Of the premises described in complaint
the premises Of plaintiff.
3D. That defendant said date the prem
ses described the possession and premises of defend
ant the tree mentioned being and standing thereon be-
fore the same fell
3rd That the tree mentioned did fall upon the dwelling
house and kitchen of plaintiff breaking the and
damaging stove and furniture Of plaintiff to the injury
of three hundred dollars.
lth That the fall OF said tree occasionng said damage
was caused by wind rain the violent action of the ee-
ments together with the natural decay.
5th That said tree aged docayed and incapable of
viii hstandng the action OF the elements at the date
its fall although all exterior appearances at the time
and prior thereto indicated vgor soundness and dura
9th THAT defendant was aware of the dangerous
soundness of the tree nor the extent of the same
though requested by plaintiff to fell the before the
fall occurred
7th That plaintiff passed and repassed had ngrcss and
egress and of upon the land of defendant which
the Stood and could without obstruction breach
peace have removed said tree and prevented the
loss which followed, but delayed doing SO.
II the decision of this case rested upon its
merits as shown by the testimony alone, weuld
not hesitate in deciding for the defendant
The rule Of practice making the failure Of de-
fsndant to deny specifically the material allega-
tions of the complaint equivalent to an admis-
sion Of such averment gives rise to some diff
Guilty, or rather to the only difficulty existing in
the case.
By the evidence it appears plaintiff has been
in possession for long period back, Of the
ground on which the tree stood, but it is other
wise averred in complaint, and that averment
admitted by defendants answer.
The parties, for the purposes Of this suit, must
be deemed the absolute owners Of the parcels
of land respectively occupied and claimed by
them, though in reality the land is q portion of
the public domain.
From possessions long acquiesced In, the
Court will presume grant from the actual pro-
prietor, or in other words, will presume sale
or donation by the Federal Government to the
actual occupant. See Eldridge VS. Knott Cowp.
215-l02-Granger vs. Scott, 6. Man. R.
Schauder VS.. Bogart ct. ais, 2. Wend. r. 1860.
-Vandyke VS.. Van Buren, Gaines r. "a
Mathsr VS.. Trim. Church. g. Serg. x Rawle 500
Richards We. Williams 7. Wheat. r. 59-Cou-
ger ct al. vs. Weaver ct al. 7. Cal. X. (Oet. T.)
If the defendant is deemed the owner Of the
land. he must be deemed equally the owner Of
the growing trees on the same; for in law land
has an definite extent upwards and downwards
and includes all woods, waters, &c. 2. Black.
Comm. l8-Coke on Lit. 4-Greenleaf Cruis-
cs, Dig. 81. Lsnnox's Dig. p. 2. "a.
This cause must be determined by the appli-
cation of the legal maxim of sac mere tto, vi
Glenum non Ioeads. This just rule requires on the
part Of the owner of the property. that prudence
and care which reasonable man will exercise
when the whole risk is his own. The rule is
applicable alike to the owner Of real property
as to that Of personal property. Tho owner of a
dlapidated house, the crumbling fragments of
which endanger the limbs and lives Of those
lawfully travelling by, must observe it equally
with the owner of dog which has become rabid
and venomous. The nature of tho property.
whether realty or personally, does not affect
the liability which attaches to the ownership aud
control Of property as legal incident In this
run counter to several highly respected au-
thoritiss in which distinctions are drawn enlarg-
ing the liability of the owner of real estate
ever that OF the owner of personal property.
This. however, is not material in this case, and
the proposition in general terms is here assert
ed. that the owner Of property having the same
under his control, is bound to use and manage
the same that it does not become noxiOus aud
injurious to the adjacent occupants or others
Bush VS.. Steinman, Bos. Il Fuller 4O2-Sly VS..
Edgely, 6. Espanasse N. p. C. p 6-Quarman vs.
Burnett, 6. MeesOn Welsby, 497-Earle w.
Hall, 2. Metcalf r. p 356-Baily VS.. Mayor Of
New York, 2. Den. r. 434 to AGO. Many other
authorities might be added, but the above are
sufficient. This doctrine applies to all properly
however acquired, and without regard to its or
gin, to natural productions Us well as to artifi-
cial constructions.
But the liability which as an incident attach
os to the ownership of property and renders the
owner responsible for the injury or loss which
may befal another from the existence of such
property, is not absolute and unqualified liabi-
ity. II must be limited by the common princi-
pie of Justice. The owner of land beneath the
surface OF which there may be hidden and un-
known cavern, ought not to be made to respond
in damages to his neighbor, who may have been
walking ever the same when the crust or sur.
face broke aud precipitated him into its dan
gerous depths.
The owner Of tract of land on which there
is lofty mountain, ought not be held liable for
the injury done by volcanic eruption of con-
sumng lava produced by sulphurous compounds
Of natures depositing. In general terms, the
owner Of property ought not to be held respen-
sible for the loss resulting entirely from a dan
ger created by nature and concealed by nature un-
til the act of nature ut the same instant occa-
sions the loss and diseloses the cause. Where
the nuisance or dangerous thing is of natural
and not artificial production, either knowledge
Of, or clear opportunity of knowing, the dan
gerous condition or nOxious tendencies of the
thing must be clearly carried home to defend
ant. before responsibility can attach. There
must be lack Of prudence and care, and there
cannot be neglect Of duty without knowledge
OF the circumstances imposing the duty. The
decayed, mouldering condition of the tree was
the circumstance making the property danger
Gus, and giving the tree the character of a nai-
sance. knowledge Of this condition, or an
opportunity Of knowing it, would have thrown
upon the defendant in the case at bar, the duty
OF removing the tree. From the facts of this
case 1t appears, that defendant did not know,
and before the fall, could net by the usual means
have known, the unsoundness of the tree. Tbe
decay had been gradual, natural and wholly
concealed beneath green. healthy and vigor-
Gus exterior. Inspection in this case only sery-
ed to misdireet the mind from the truth, and
seems to have as completely deceived the plain
tiff, whe sought to dwell beneath its cooling
shades, as it did defendant. That plaintiff AZ.
ter residing for more than one year immediately
under its bOughs without danger or ininrv