Christensen v. Tucker

CourtCalifornia Court of Appeals
Citation250 P.2d 660,114 Cal.App.2d 554
Decision Date04 December 1952
PartiesCHRISTENSEN v. TUCKER et ux. Civ. 15333.

Bert B. Snyder, Santa Cruz, for appellant.

Lucas, Wyckoff & Miller, Santa Cruz, for respondents.

PETERS, Presiding Justice.

Plaintiff and defendants own adjoining parcels of real property in East Ben Lomond, in Santa Cruz County. Defendants constructed certain structures that encroached on plaintiff's land. Plaintiff brought this action for a mandatory injunction to compel removal of the encroachments, for damages for their maintenance and damages for diversion of water onto plaintiff's land caused by the encroachments. Defendants answered, and cross-complained to quiet their title to the area occupied by the encroachments. The court, after finding that the encroachments had been constructed on plaintiff's land, offered the defendants an election: to accept a mandatory injunction to compel them to remove the encroachments and pay $50 damages, or pay $200 damages, accept an injunction against them prohibiting further diversion of water, and secure a decree quieting their title to the fee of the area involved. The defendants elected the second alternative and judgment was entered accordingly. From that judgment plaintiff appeals.

The facts, more in detail, ane as follows: Defendants purchased their lot from one Ladagnous June 27, 1938, the lot being approximately 50 feet by 179 feet. The plaintiff purchased his lot, which adjoins to the north that of defendants, from the same grantor, plaintiff's lot being approximately the same size as that of defendants, on March 3, 1943. The south boundary of plaintiff's property is the north boundary of defendants' lot. Both lots front on Manzanita Avenue. Prior to the time plaintiff purchased his lot, defendants constructed a cement abutment along what they thought was the common boundary between the lots from Manzanita Avenue back 125 feet. Actually, this cement abutment was on plaintiff's land. The encroachment, according to the quiet title decree, measured 3 feet on Manzanita Avenue and decreased to 6 inches at the end of 125 feet, so that the encroachment amounted roughly to a long triangle with a 3-foot base, and 125 feet in length. Although the total area occupied by the encroachments is not fixed in square feet in the findings or the evidence, the parties compute the area as being 229 square feet or about 2 1/2% of plaintiff's total area.

On the cement abutment the defendants constructed a wire fence with steel posts running back from Manzanita Avenue a distance of 77 feet. South of the fence they constructed a driveway about 9 feet wide leading to the garage. The garage is constructed so that its north wall is constructed on the dividing wall. The north wall encroaches onto plaintiff's land from 2.02 feet to 8 inches for a distance of 25 feet. Next, the defendants constructed a badminton court along the dividing boundary, which encroaches from 8 to 6 inches for the 23 feet of its length. Although the evidence is highly confusing on the issue, the trial court found that all of these encroachments, except the garage, were constructed prior to the date plaintiff purchased his lot.

When defendants purchased their lot in 1938 there was an old fence along the north boundary of the lot subsequently purchased by plaintiff, which fence had been constructed in 1905. Defendants were told by Ladagnous that this fence constituted the north boundary of the lot retained by him (and subsequently sold to plaintiff) and that he, Ladagnous, was retaining a 50-foot lot. Defendants accepted this representation and did not have a survey made. This fence was not the north boundary of the lot retained by Ladagnous, but was actually 2 feet north onto the next lot owned by one Paradis. When defendants built the cement wall they measured 50 feet from the Paradis fence and treated that as their north boundary. They fixed the starting point of the wall at a spot on Manzanita Avenue that is 3 feet onto plaintiff's property. Thus, they must have negligently made this measurement because the Paradis fence is only 2 feet off, and the encroachment is 3 feet off. Had they measured accurately, the encroachment would be only 2 feet and there would have been no encroachment at all beyond the garage. There is no explanation in the record as to how this one-foot error occurred.

As already pointed out, plaintiff purchased his lot in 1943 from Ladagnous. At that time the cement curb, according to the findings, had been constructed. Plaintiff testified that about the time he purchased, and while defendants were working along the dividing boundary, he complained to defendants that he believed his frontage on Manzanita Avenue was not a full 50 feet. He also testified that he did not have a survey made because it was impracticable to secure a surveyor during the war. Mr. Tucker, one of the defendants, admitted that such complaint had been made to him in 1943.

The plaintiff paid $250 to Ladagnous as the full purchase price of his lot.

There is no evidence that the encroachment adversely affects any existing use of the land by plaintiff. The plaintiff's property is unimproved except for a garage which is unaffected by the encroachments, and there is no evidence that the encroachments adversely affect the use of this garage. Plaintiff does claim that the encroachments will interfere with his plans for the future development of the property, but there is no evidence of what those plans may be, or how the encroachments may interfere with them. Plaintiff did testify to some damage caused by defendants running a drain pipe so that water and sand were brought onto plaintiff's property, and the sand piled up against the garage, rotting some of the siding and requiring it to be replaced. Apparently, although this is not clear, it is for this damage that the $50 damages allowed in the first alternative form of judgment were granted. However, the judgment enjoins defendants from any further such diversions, and plaintiff, of course, makes no complaint concerning that portion of the judgment. Defendants have not appealed.

The monetary damage that defendants would suffer if compelled to remove the encroachments is not shown by the evidence. Obviously, in such event, they would be compelled to remove the concrete curbing for a distance of 125 feet. The cost of such removal does not appear in the evidence. They would also be compelled to remove a portion of their driveway which extends for the first 77 feet of the encroachment. Defendants claim that if their driveway is thus narrowed it will make it unusable, but this contention is not supported by the evidence. Since the dispute arose between the parties, plaintiff has constructed a fence along the true boundary line between the respective properties. Although this has narrowed the driveway, an automobile can get through, although with difficulty. Moreover, a driveway could be constructed by defendants on the south side of their house where there would be a 9-foot clearance. It should be mentioned that defendants also own the lot to the south which adjoins the lot on which their house is built, and this adjoining lot is unimproved.

Defendants, if an injunction were granted, would also have to remove the north wall of their garage which extends 25 feet along the encroaching curb. This would, undoubtedly, be a material inconvenience and would entail some expense, but the estimated amount thereof does not appear in the evidence. The last 23 feet of the encroachment, if removed, would shorten defendants' badminton court from 6 to 8 inches, which would not be a major inconvenience or cost.

On this evidence the court found that all of the improvements, except the superstructure of the garage, were built before plaintiff purchased his property; that when defendants purchased their lot they were informed by Ladagnous, their grantor, that the Paradis fence constituted the north boundary of the lot retained by him; that when the curbing was constructed, Ladagnous still owned the lot now owned by plaintiff; that while the curbing was being constructed Ladagnous was present and acquiesced in the construction; that while the fence was being constructed, after plaintiff had purchased his lot, plaintiff observed what was being done and acquiesced therein; that nevertheless 'defendants were negligent in relying and acting upon the representations and acquiescence of J. P. Ladagnous and the acquiescence of plaintiff * * *, and in not obtaining a survey prior to the construction of said improvements.'

The court then found that the area encroached upon was sandy, unproductive, and of 'little value,' and that the damage to plaintiff did not exceed $50; that it would be 'inequitable to compel defendants to remove said encroaching improvements, the value of which exceeds by far the value of the land occupied by said improvements; that plaintiff's proposed use of his said land is for residential purposes and that such use will not be seriously impaired if title to the land occupied by said improvements shall be quieted in favor of defendants.' The court then found that $200 would cover all damages, and offered the defendants the option of paying $50 damages and allowing plaintiff a mandatory injunction, or of paying $200 damages, having the mandatory injunction denied except that the water diversion would be enjoined, and defendants' title in fee would be quieted to the area in dispute. Defendants elected the second alternative, and judgment was entered accordingly.

Before discussing the law applicable to this appeal, comment should be made about three major portions of the judgment. First, the judgment not only denies to plaintiff the equitable relief requested by him, but grants to defendants affirmative relief, by quieting title in fee in defendants to land admittedly owned by plaintiff. In the second...

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