City of Dunsmuir v. Silva

• Decision Date: 31 October 1957
• Citation: 154 Cal.App.2d 825,317 P.2d 653
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF DUNSMUIR, a municipal corporation, Reno R. Cesaratto, Eleanora Cesaratto, George McLaughlin, Ed Cripps, Mr. and Mrs. Guay, Mr. and Mrs. Herbert Bland, Mr. and Mrs. Perry Cooper and Lydia H. Brown, Plaintiffs and Respondents, v. Carlos L. SILVA and Bertha Silva, Defendants and Appellants. Civ. 9087.

Page 653

317 P.2d 653

154 Cal.App.2d 825

CITY OF DUNSMUIR, a municipal corporation, Reno R. Cesaratto, Eleanora Cesaratto, George McLaughlin, Ed Cripps, Mr. and Mrs. Guay, Mr. and Mrs. Herbert Bland, Mr. and Mrs. Perry Cooper and Lydia H. Brown, Plaintiffs and Respondents, v. Carlos L. SILVA and Bertha Silva, Defendants and Appellants.

Civ. 9087.

District Court of Appeal, Third District, California.

Oct. 31, 1957.

Burton, Lee & Hennessy, Yreka, by Lawrence J. Lee, for appellants.

L. N. Lorenzen, Mount Shasta, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment ordering that appellants be perpetually enjoined from maintaining any building or obstruction on or impediment to traffic along a certain strip of land over which the court decreed that respondents had an easement for travel. The strip is referred to as an alley, although it is not shown upon any city map. In 1953 the respondent city, over the objections of other respondents, issued a building permit to appellants which authorized construction of a garage on appellants' premises. When completed, the garage encroached upon the claimed easement area and thereby reduced the usable part of that area to a point where, instead of being approximately 12 feet in width, it was only 9 1/2 feet.

Appellants do not contend that the evidence is insufficient to uphold the court's findings as follows: That there is a certain unnamed street or alley running parallel to Florence Avenue and Rose Avenue within the City of Dunsmuir and lying between the said two avenues in Block D of Brandstetter's Addition to the city; that the alley, by dedication, belongs to the city; that all of the plaintiffs, save the city, own property abutting upon said alley; that for more than twenty years past there has been a common method of ingress and egress to and from said alley and Florence Avenue, lying across Lot 6, Block A and Lot 1 of Block D of Brandstetter's Addition to the city; that the said common method of ingress and egress to and from the alley is described as beginning at the northwest corner of Lot 1, Block D of Brandstetter's Addition to the City of Dunsmuir, thence north 11~ 45' east, 12 feet along Florence Avenue, thence south 86~ 17' east 68.25 feet, thence south 11~45' west 12 feet, thence north 86~ 17' west 68.25 feet to the place of beginning; that defendants caused a garage to be erected which partly lies across and prohibits free passage along and over the said described parcel.

Pursuant to said findings the court declared that respondents were the owners of an easement over and across said described strip of land as a means of travel between Florence Avenue and said unnamed alley and that because of the encroachment of appellants' garage injunctive relief ought to be granted.

Appellants contend that the encroachment of appellants' garage upon the easement area is slight, that no damage is shown to have resulted therefrom, and that consequently under the rule de minimus the court ought not to have granted a mandatory injunction, which to be obeyed will necessitate removal of at least that part of the garage which encroaches upon the easement. They support this claim by reference to the court's finding that 'any damage suffered by...