Lindroth

Defendants cut and removed timber valued at $4,515 from plaintiffs’ land without permission. They appeal from that portion of the judgment which awards double this amount as damages.

Under section 3346 of the Civil Code, if such a trespass is wilful and malicious, 1 “the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, 2 . . . the measure of damages shall be twice the sum . . . .”

The section also provides that, where the trespasser relies upon a mistaken boundary line fixed by a licensed surveyor, the measure of damages shall be the actual detriment incurred. Here, however, the trial court’s finding is that “the [boundary] line upon which Defendants relied was not one established by a licensed surveyor.”

The trial court further found that the trespass was casual and involuntary and not “wilful and malicious.” It therefore denied treble damages.

Defendants do not contend that any of the findings are not supported by the evidence. Their sole contention is that the issue of double damages was not properly before the trial court. We do not agree.

Plaintiffs’ complaint alleges that…