ponds or fisheries, deer or elk in parks, doves and pig-
eons in cotes, and the like. There is also a qualified
property in birds building in the trees of the owner of
the soil, etc.; he has a qualified property in their young
until they can fly or run away.-2 Bl. Com., pp. 389-
394. "Dogs," by Sec. 481, Penal Code, are property,
so as to be the subject of larceny. In 1 Hilliard on
Torts, pp. 480, 481, it is stated that in conformity with
the principles substantially set out in this note, injury
to a “dog,” although he has no pecuniary value, will
sustain an action for trespass. Trover will also lie for
a lost "dog" which the defendant having possession of
him refuses to deliver, unless paid for his keeping.—
Parker vs. Wise, 27 Ala., p. 480; Stale vs. McDuffie,
34 N. H., p. 523; Wheatley vs. Harris, 4 Sneed, p. 468;
McCowis vs. Singleton, 2 Rep. Con. Ct., p. 244. As to
trover, see Binstead vs. Buck, 2 W. Black., p. 1117.
A statute authorizing the killing of a dog without a
collar, is no defense to the action for the conversion of
the dog to defendant's use.-Cummings vs. Perham, 1
Met., p. 555.

ARTICLE III.

PENAL DAMAGES.

SECTION 3344. Failure to quit, after notice. 3345. Tenant willfully holding over.

3346. Injuries to trees, etc.

3347. Injuries inflicted in a duel.

3348. Same.

quit, after

3344. If any tenant give notice of his intention to Failure to quit the premises, and does not deliver up the posses- notice. sion at the time specified in the notice, he must pay to the landlord treble rent during the time he continues in possession after such notice.

NOTE.-Stats. 1863, p. 652, Sec. 1161. Code of Civil Procedure, Subd. 1, Sec. 1162, id., defines how notice to be served.-See, also, Secs. 1945, 1946, 1947, ante, and notes.

willfully

over.

3345. If any tenant, or any person in collusion Tenant with the tenant, holds over any lands or tenements holding after demand made and one month's notice, in writing given, requiring the possession thereof, such per

Injuries to trees, etc.

son holding over must pay to the landlord treble rent during the time he continues in possession after such notice.

NOTE. The same reference as in preceding section; also, Secs. 1162, 1174, Code of Civil Procedure, Cal.; King vs. Connolly, Cal. Reps., July Term, 1872, No. 2957.

3346. 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.

NOTE. The damages for cutting down growing trees are not measured by the value of the trees for firewood, but the injury done to the land by destroying them.Chipman vs. Hibbard, 6 Cal., p. 162. It is stated in 1 Hilliard on Torts, that it is doubtful whether trees or wood, owned apart from the land, are real or personal property. In Liford's Case, 11 Co., p. 47, it was held that trees reserved from a conveyance for life passes with a subsequent transfer of the reversion. In Stickely vs. Butler, Hob., p. 10, a grant of trees is said to pass them as chattels, and trespass will lie by the purchaser for injury to them.-See, also, Wright vs. Barrett, 13 Pickering, p. 44; Clap vs. Draper, 4 Mass., p. 266; Sawyer vs. Hammate. 3 Shepl., p. 40; Putney vs. Day, 6 N. H., p. 430. It is competent for one to take by purchase trees standing on land of another, with the right of entry to cut and to sell the trees, wholly or in part, with a joint right of entry, etc.— Haskin vs. Ricord, 32 Vt., p. 575. The presumption is that growing trees belong to the owner of the soil; but in Gronour vs. Daniels, 7 Blackf., p. 108, it was held that it was not necessary to aver ownership of the soil to maintain trespass done by cutting down trees alleged to be the property of the plaintiff. And this is consonant with the rule set out in 1 Hill Real Property, p. 10, that trees standing on and rooted in the soil of one person may be owned by another, and that though

the limbs overhang another's ground, they belong to
the owner of the root; and the same with regard to
roots extending into the soil of another. The whole
tree, with its fruit, belongs to the owner of the soil
where the tree stands.-1 Swift, p. 104; Addi. on
Wrongs, p. 154. When a tree is exactly on the line
dividing two owners' lands they are tenants in common
of the tree, and each has an action against any one,
even his co-tenant, for injury to it.-2 Rolle Rep., p.
255; Griffin vs. Bixley, 12 N. H., p. 454.

3347. If any person slays or permanently disables another person in a duel in this State, the slayer must provide for the maintenance of the widow or wife of the person slain or permanently disabled, and for the minor children, in such manner and at such cost, either by aggregate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the Court.

NOTE. This section is based on Stats. 1855, p. 152. Art. XI, Sec. 2, of our State Constitution, prohibits any one who fights, or acts as second, or knowingly aids or assists one who fights a duel or sends a challenge to fight a duel, from holding any office of profit or trust. See, also, Secs. 225 to 232, Penal Code of California.

Injuries

inflicted in

a duel.

3348. If any person slays or permanently disables Same. another person in a duel in this State, the slayer is liable for and must pay all debts of the person slain or permanently disabled.

NOTE.-Based on Stats. 1855, p. 152.

ARTICLE IV.

GENERAL PROVISIONS.

SECTION 3353. Value, how estimated in favor of seller. 3354. Value, how estimated in favor of buyer.

3355. Property of peculiar value.

3356. Value of thing in action.

3357. Damages allowed in this Chapter, exclusive of others.
3358. Limitation of damages.

Value, how estimated

seller.

SECTION 3359. Damages to be reasonable.

3360. Nominal damages.

3353. In estimating damages, the value of prop

in favor of erty to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale.

Value, how

estimated

buyer.

NOTE. Obviously, a seller can sustain no injury by reason of any peculiar value of the thing sold. Its value is that which it bears in the nearest market (see Gregory vs. McDowell, 8 Wend., p. 435), and the time reasonable in which to effect a resale.-Loder vs. Kekulé, 3 C. B. (N. S.), p. 128; see Simons vs. Patchett, 7 E. & B., p. 568; see, also, notes to Secs. 3308, 3309, 3310, ante. It is stated in 1 Hilliard on Torts, p. 183, Sec. 27, that the law relative to the measure of damages for conversion cannot be considered as well settled. In general terms, the value of the property is the standard, says Hilliard; referring to several authorities to support this view (id., Note 2a); "but as to the elements which constitute that value, different cases adopt in many respects widely different views." The points on which this author finds the law unsettled are: the time at which the value is estimated, or, in other words, the profits which plaintiff lost; how far detention entered into the question of loss of profits, or the amount paid for the hire of others of the same kind, referring to numerous cases thereon. "So whether the peculiar value of the property to the from personal considerations is to be estimated in the damages, as in case of a family picture." In support of the author's view, he refers to numerous cases in Note 1, p. 134. There are also other unsettled questions there referred to, most of which it is the purpose of Chap. II, Title I, Part I, Div. IV of this Code to settle, as is partly done in the text of Sec. 3355, post.

plaintiff arising

3354. In estimating damages, except as provided

in favor of by Sections 3355 and 3356, the value of property, to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to

the place where the property ought to have been nut into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase.

NOTE.-Value to buyer or owner.-It will be found that there is no distinction between the buyer and the owner of goods in respect to the matters to which this section relates. The value is the price in the market.— Havemeyer vs. Cunningham, 35 Barb., p. 515; Smith vs. Griffith, 3 Hill, p. 333; King vs. Orser, 4 Duer, p. 431; Davis vs. Shields, 24 Wend., p. 322; 26 id., p. 341; see Lawrence vs. Wardwell, 6 Barb., p. 423; Comstock vs. Hutchinson, 10 id., p. 211; Gerard vs. Prouty, 34 id., p. 454; Hamilton vs. Ganyard, id., p. 204; Muller vs. Eno, 14 N. Y., p. 597; M'Knight vs. Dunlop, 5 id., p. 537; Dana vs. Fiedler, 12 id., p. 40; Stevens vs. Low, 2 Hill, p. 132; Cary vs. Gruman, 4 id., p. 625. Or at which a similar thing could be bought. The price at which a purchase could have been made is alone to be regarded, even though the purchaser bought for speculation, and could not have sold again at such a price.-Dana vs. Fiedler, 12 N. Y., p. 40. "The market” is that nearest where possession was to be given.-Gregory vs. McDowell, 8 Wend., p. 435. And reasonable time allowed in which with diligence to make the purchase.-Josling vs. Irvine, 6 H. & N., p. 512; see Loder vs. Kekulé, 3 C. B. (N. S.), p. 128. The rule usually stated is that the buyer can recover only the price of the day upon which delivery ought to have been made.-Dana vs. Fiedler, 12 N. Y., p. 40; Clark vs. Dales, 20 Barb., p. 42; Belden vs. Nicolay, 4 E. D. Smith, p. 14; Davis vs. Shields, 24 Wend., p. 322; 26 id., p. 341; Gregory vs. McDowell, 8 id., p. 435; Tempest vs. Kilner, 3 C. B., p. 249; see Peterson vs. Ayre, 13 id., p. 353. But the question discussed in Josling vs. Irvine was not raised in these cases. See, also, notes to Secs. 3308-3310, ante.

Property of

peculiar

3355. Where certain property has a peculiar value to a person recovering damages for deprivation thereof, value. or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.