Hutcherson v. Alexander

• Decision Date: 17 July 1968
• Citation: 264 Cal.App.2d 126,70 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: , 38 A.L.R.3d 636 Robert E. HUTCHERSON et al., Plaintiffs and Respondents, v. D. Owen ALEXANDER, Defendant and Appellant. Civ. 779.

Page 366

70 Cal.Rptr. 366

264 Cal.App.2d 126, 38 A.L.R.3d 636

Robert E. HUTCHERSON et al., Plaintiffs and Respondents, v. D. Owen ALEXANDER, Defendant and Appellant.

Civ. 779.

Court of Appeal, Fifth District, California.

July 17, 1968.

Hearing Denied Sept. 11, 1968.

Neiman & Sieroty and Allen I. Neiman, Los Angeles, for appellant.

Robert P. Stringham, Tulare, for respondents.

GARGANO, Associate Justice.

This action for injunctive relief and damages is between feuding business competitors who own adjoining business properties. It was brought by the plaintiffs, but defendant filed a cross-complaint also seeking injunctive relief and damages. After a two-day trial the trial court entered judgment enjoining both parties and their employees from parking vehicles or placing signs or structures in the setback area fronting the respective business properties. The court also ordered defendant to remove a so-called 'menu board' from a six-foot fence and enjoined defendant from obstructing the area above the fence in any manner. The court, however, retained jurisdiction to fix plaintiffs' damages, both compensatory and punitive.

Each party is engaged in the business of dispensing food, drinks, gas and similar products to customers who travel along U.S. Highway 99 in Tulare County. Each has 'drive-in' facilities, a gas station and a fruit stand located between the main highway and a frontage road. Because of the layout persons traveling north on Highway 99 first see plaintiffs' establishment; then, when the travelers turn off the highway to the north of both establishments and proceed south, they first see defendant's establishment.

The parties began business operations within one week of each other, and before long they began annoying one another. Thus, the record, as is often the case in an action of this nature, is replete with evidence of petty bickering and ungentlemanly conduct. However, to avoid repetition we shall discuss the evidence when we separately consider defendant's several contentions for reversal of the judgment. These contentions are substantially as follows.

I. The court erred when it ordered defendant to remove the so-called 'menu board' from defendant's six-foot fence and permanently enjoined defendant from obstructing the area above the fence in any manner.

II. The judgment permanently enjoining the use of the setback area is contrary to both the law and the evidence.

III. The judgment relating to damages is contrary to law.

IV. The court's denial of the injunctive relief requested by defendant in his cross-complaint was erroneous.

I

On July 9, 1963, shortly after the parties commenced to do business, defendant erected a six-foot fence on the dividing line of their adjoining properties. Subsequently defendant extended the fence to a height of 14 feet, 18 inches. He then painted advertising on the extension and called it a 'menu board.' Defendant listed his food items but not the prices. The court, however, determined the main purpose for the erection of the so-called 'menu board' was to annoy the plaintiffs and therefore ordered it removed. Specifically, the court found defendant maliciously and unnecessarily erected the 'menu board' to hide plaintiffs' premises from view from the frontage road, a public street.

Defendant contends that the court used at least four different legal theories in arising at its judgment, viz., the structure interfered with defendant's easement of view, it violated the spite fence law, it constituted a nuisance, and it constituted unfair competition. Defendant then extensively argues the validity of each theory. Succinctly, he asserts: it is the settled decisional law of this state that there is no easement of view in California; the spite fence law was misapplied since it does not prohibit structures up to ten feet from above the ground; the 'menu board' could not properly be classified as a nuisance because it was constructed for a lawful purpose; and the doctrine of unfair competition has no application in a case of this nature.

It is the general rule that the unreasonable, unwarrantable or unlawful use by a person of his own property so as to interfere with the rights of others is a nuisance (66 C.J.S. Nuisances § 1, p. 727). In fact, any unwarranted activity which causes substantial injury to the property of another or obstructs its reasonable use and enjoyment is a nuisance which may be abated. And, even a lawful use of one's property may constitute a nuisance if it is part of a general scheme to annoy a neighbor and if the main purpose of the use is to prevent the neighbor from reasonable enjoyment of his own property (Griffin v. Northridge, 67 Cal.App.2d 69, 153 P.2d 800). Thus, we do not find it necessary to discuss all of the theories which the trial court may have considered when it arrived at its judgment. On the contrary, we conclude that there was ample evidence to justify the court's order requiring defendant to remove the 'menu board' on the ground that it constituted a nuisance.

First, there was substantial evidence for the court to find that the so-called 'menu board' was not necessary or essential to plaintiffs' business and defendant's business motive was secondary or incidental. Defendant's customers were required to get out of their cars and walk to the kitchen to place their orders as defendant did not provide car service. And, significantly, defendant had menu boards hung on his kitchen building. Moreover, the trial judge determined that the 'menu board' was not necessary to defendant's business after he viewed defendant's premises. It is settled that a view of the scene by the trial judge is independent evidence on which a finding may be made and sustained (Otey v. Carmel Sanitary Dist., 219 Cal. 310, 312, 26 P.2d 308; Evid.Code § 140).

Second, there was substantial evidence for the court to find that defendant maliciously placed the 'menu board' on the fence to annoy the plaintiffs. Defendant had operated a similar business at another location. Yet appellant did not have a comparable menu board at that location. Furthermore, when defendant first erected the 'menu board,' the solid portion began at a height of 10 feet above the ground, extending upward to a height of 14 feet, 18 inches leaving a middle gap of approximately four feet which still allowed some view of plaintiffs' premises. However, defendant then covered this gap with bamboo curtains and almost completely blocked the view of plaintiffs' premises. Later defendant permanently filled the gap so that the structure became a solid wall.

Third, there was substantial evidence for the court to find that the erection of the 'menu board' was part of defendant's general scheme (and only one of his many activities) to annoy plaintiffs and to interfere with plaintiffs' reasonable use and enjoyment of their property. Shortly after the completion of the drive-in restaurants, defendant told plaintiffs that since plaintiffs would not purchase defendant's business he would do things to plaintiff Hutcherson 'that he wouldn't do to a dirty dog.' Defendant also told others that he was going to eliminate plaintiffs as a competitor. Defendant then embarked on a course of conduct which included the following activities. He drove his car out to the frontage road and blocked oncoming traffic from coming into plaintiffs' business. He erected a produce stand in a position to block the view of plaintiffs' premises from the frontage road. He hired young toughs to chase off the plaintiffs' hired little boy who was passing out free refreshment tickets. He parked a truck on plaintiffs' right of way and painted white arrows on the frontage road pavement directing people to his establishment. He intimidated plaintiffs' employees.

Defendant vigorously argues the use of his fence for a 'menu board,' at least up to a height of 10 feet, was a lawful use of the premises and hence could not be enjoined by the trial court. However, a similar argument was rejected in Griffin v. Northridge, supra, 67 Cal.App.2d 69, 153 P.2d 800. In that case the court at page 75, 153 P.2d at page 803 of the opinion stated:

'The board fence mounted on the retaining wall along the east line of plaintiffs' lot darkened their home and excluded their eastern view of the city and prevented designed ventilation. Judging by the behavior of defendants in other respects the trial court must have been impressed that the fence was not constructed to serve the comfort of defendants but only to annoy and grieve plaintiffs. At the trial it was contended as here, that a board fence is not a nuisance Per se and it will not be abated unless it unnecessarily exceeds ten feet in height. Act 2532, Deering's Gen.Laws; Stats.1913, p. 342. While the testimony was closely conflicting upon the height of the rough board fence, the court's finding was made after the judge's inspection of the premises. Such inspection constituted independent evidence and provided support for the finding. Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 83 P.2d 942. Even though the fence had not been ten feet in height still it was a nuisance if it was constructed with malicious intent, interfered with plaintiffs' full enjoyment of their home and if its usefulness to defendants was 'subordinate and incidental.' See Haehlen v. Wilson, 11 Cal.App.2d 437, 54 P.2d 62.' (Emphasis added.)

II

Defendant does not challenge the validity of the Tulare County Ordinance which establishes a building setback area for defendant's property. A county may establish setback areas and similar regulations in the interest of sound community planning and to allow for future growth. Defendant, however, asserts that the trial court's order enjoining both parties 'from parking automobiles, trucks, trailers and vehicles of any kind or placing signs or other structures, portable or otherwise, in the building line setback area' is erroneous since it enjoins both lawful and...