Bertram v. Orlando

• Decision Date: 27 February 1951
• Citation: 227 P.2d 894,24 A.L.R.2d 899,102 Cal.App.2d 506
• Court: California Court of Appeals Court of Appeals
• Parties: , 24 A.L.R.2d 899 BERTRAM v. ORLANDO et al. Civ. 14341.

Page 894

227 P.2d 894

102 Cal.App.2d 506, 24 A.L.R.2d 899

BERTRAM v. ORLANDO et al.

Civ. 14341.

District Court of Appeal, First District, Division 2, California.

Feb. 27, 1951.

Charles D. Sooy, San Francisco, Fahey Bocci & Gallen, Daly City, for appellants.

L. L. James, Carl E. Day, San Francisco, for respondent.

DOOLING, Justice.

Plaintiff and defendants are the owners of adjoining parcels of land. At least twenty years before the trial of this action defendants' predecessors in interest placed upon their land three wooden buildings set upon concrete piers parts of which extend across the common boundary line and occupy a portion of the surface of plaintiff's land. Plaintiff commenced an action for a mandatory injunction and damages and from a judgment granting plaintiff such relief defendants appeal. The primary question presented on appeal is whether the action falls within the statute of limitations, Code of Civil Procedure, section 338, subdivision 2, which bars after three years: 'An action for trespass upon or injury to real property.'

Defendants rely upon Rankin v. De Bare, 205 Cal. 639, 271 P. 1050, which we have concluded is controlling. In that case an action was brought to compel the removal from plaintiff's premises of an encroachment of a building belonging to defendant, one wall of which rested upon a strip of plaintiff's land, and for damages. The court said 205 Cal. at page 641, 271 P. at page 1051:

'The record shows that the injury or trespass is permanent in character. Where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is suffered or the trespass committed. (Citing cases.) The trespass was committed * * * on or about May 1, 1917. Three years expired on May 1, 1920, and as this action was not commenced until January 5, 1923, the cause of action was barred.'

Plaintiff relies on Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833. That was not a case where an adjoining building encroached upon the surface of plaintiff's land, but an encroachment by progessive leaning of the wall of the building above the surface. The court in that case draws the distinction clearly 191 Cal. at pages 750-751, 218 P. at page 755:

'The wrong here complained of was an encroachment, not upon plaintiffs' land, but upon the space above the land, and therefore was not a trespass but a nuisance. The distinction is pointed out in Wood on Nuisances (3d Ed.) at page 33.

'The action herein is not an action at law to recover damages for a trespass, but a suit in equity to abate a nuisance, and, as originally instituted, incidentally to recover damages therefor. Code Civ.Proc. § 731; Meek v. De Latour, 2 Cal.App. 261, 263, 83 P. 300, and cases cited. Where a trespass consists of a physical entry upon the lands of another and taking possession thereof under such circumstances as to indicate an intention that the trespass shall be permanent, the law may regard the wrong done in such case as complete at the time of the entry, and allow recovery in a single action of all damages resulting therefrom, including prospective as well as past damages. This is particularly true where the entry and taking possession are for a public use, in connection with which the trespasser might have exercised the right of eminent domain, but omitted to do so. Robinson v. Southern California Ry. Co., 129 Cal. 8, 61 P. 947; Williams v. Southern Pac. R. Co., 150 Cal. 624, 89 P. 599. In such a case the statute of limitations runs from the time of the...