Donnell v. Bisso Brothers

• Decision Date: 29 July 1970
• Citation: 88 Cal.Rptr. 645,10 Cal.App.3d 38
• Court: California Court of Appeals Court of Appeals
• Parties: O. D. DONNELL, Jr., and Jean B. Donnell, his wife, Plaintiffs, Cross-Defendants and Respondents, v. BISSO BROTHERS, an unincorporated association, Bill Bisso, Jim Bisso and Jack Bisso, Defendants, Cross-Complainants and Appellants. Civ. 26868.

Page 645

88 Cal.Rptr. 645

10 Cal.App.3d 38

O. D. DONNELL, Jr., and Jean B. Donnell, his wife, Plaintiffs, Cross-Defendants and Respondents, v. BISSO BROTHERS, an unincorporated association, Bill Bisso, Jim Bisso and Jack Bisso, Defendants, Cross-Complainants and Appellants.

Civ. 26868.

Court of Appeal, First District, Division 4, California.

July 29, 1970.

Hearing Denied Sept. 24, 1970.

Swartfager, Allen & Mawson, Santa Rosa, for appellants.

James F. Kemp, Sonoma, for respondent.

DEVINE, Presiding Justice.

Defendants appeal from a judgment which grants to plaintiffs a non-exclusive easement for road purposes over defendants' land and enjoins interference with the road and which awards plaintiffs compensatory damages of $4,000 and punitive damages of $5,000. For convenience, the parties are called Donnell and Bisso respectively although there is joint ownership of property on each side, and the single names are used although some of the acts described herein were done by agents acting under orders of one or another of the parties.

General Facts

Donnell owns two parcels of land, Parcel One, a quarry to the west of a railroad right of way and to the west of the Bisso ranch, and the other, a ranch on which hay is grown which is to the northeast of the Bisso ranch, and which is called Parcel Three. Prior to most if not all of the events narrated herein, the hay from Parcel Three was transported on a road going to the north, and Bisso was not affected by the traffic. During winter storms of 1966-1967 the northerly road was destroyed. There were, however, means of access from a highway to the west of Parcel One (State Highway 121) to Parcel Three. These means were: 1) a road through the quarry land, which intersected with Road F, a road running north on the Bisso land, on which Donnell had an easement and, 2) Road G, considerably north of the quarry road, which traversed the ranch of a third person (not a party to this lawsuit), Smith. This road also connected with Road F. But the quarry road, although usable for some vehicles in the transportation of hay from Parcel Three, was inadequate for the passage of large hay trucks, and Road G was in a state of disrepair.

For some years, there had been contemplated by Donnell, Bisso and Smith the construction of a road which would run in a direction generally west-east from Highway 121 to Road F over Smith and Donnell lands. Bisso had proposed the plan in 1964. The evidence shows that the route is on firm land, although much of the nearby area is marshy. Negotiations were carried on in early 1967, and were completed between Donnell and Smith. Donnell relinquished his easement to Road G on the Smith property, but he and Smith gave mutual easements over the proposed new road. Northwestern Pacific Railway allowed to Donnell a crossing over its tracks which lie just west of the Bisso land. But Bisso would not agree to join the project. There is no conclusive evidence of the reason for the refusal. Bisso testified that Smith would exact from Bisso, as a condition for use of the new road, cancellation of other access rights and flood control rights (although the agreement which was prepared for Bisso's signature does not bear this out, he contended that the demands were presented to him); Donnell presented evidence that Bisso wanted title to the land on which the road would be constructed with easements to be granted to Donnell and Smith but not to other neighbors whom Donnell was willing to accommodate. An impasse resulted; Donnell terminated a license of Bisso to use the quarry road across Donnell's land; Donnell placed rock and gravel on Road F, preparatory to building the new road from the railroad property to Road F, whereupon Bisso removed this material.

Following this exchange, Donnell obtained a temporary restraining order forbidding Bisso to interfere with construction of the new road. Proceeding under the restraining order, Donnell completed the road to a tie-in with Road F. The court denied a preliminary injunction on the ground that, the road having been completed, the matter of preliminary relief was moot. Meanwhile, Bisso had been informed by a surveyor engaged by him that Bisso owned a portion of the land between the railroad land and Road F. The new road, therefore, encroached on Bisso's land according to this information. Bisso erected a fence at the intersection of the new road with Road F; Donnell removed the fence; Bisso replied by bulldozing a portion of the roadbed. The road remained impassable at the time of trial.

Trespass By Donnell

It is undoubted that Donnell committed a trespass on Bisso's land. The court found that there was an encroachment; the jury which tried the issues of trespass and damages impliedly found so, for it awarded $1, the amount of damages prayed for by Bisso in the cross-complaint; Donnell's witness Passarino, a licensed surveyor, testified to the encroachment; Donnell admits it in his brief on appeal. Donnell attempts, however, in his brief to show that the area of encroachment is less than that which was found by the trial judge, by the use of a rather elaborate diagram which was prepared and signed by an unidentified person named Seal, who did not testify. The work evidently was done subsequent to trial, and the trial judge did not see it. There is no appeal by Donnell. Hence, we shall accept the finding and the judgment of the trial court. The area of encroachment as found by the court is of these dimensions: 41.20 feet, thence 31.93 feet, thence 11.84 feet, thence 35.98 feet to the point of beginning. The parcel was admitted by Bisso to be unusable and of nominal value; nevertheless, it was owned by Bisso and was trespassed upon by Donnell.

We find no difficulty, however, in accepting the proposition that Donnell's trespass was made in good faith. The jury so decided (we know this not only from the nominal amount of the verdict but also from colloquy between the court and the foreman of the jury). The court found that Donnell, reasonably and in good faith and relying on a survey and a railroad map, believed that there was no encroachment on the Bisso property.

There is no appeal from the judgment on the cross-complaint, but the above recital is necessary in order to discuss the two issues on appeal, one legal (damages), and the other equitable (injunction).

Trespass By Bisso

It is conceded that Bisso did not trespass on any land owned by Donnell. But Donnell contended that his rights of way were invaded in that: 1) it was wrongful of Bisso to remove the rock and gravel from Road F on which Donnell had a right of way; (2) Bisso, in cutting the gap from Road F, actually sliced into part of the railroad right of way and because the railroad had granted a license to Donnell, Bisso trespassed on Donnell's property right; 3) Bisso wrongfully bulldozed the roadbed which had been built. For this, Donnell sought damages, compensatory in the amount of $5,000 and punitive in the amount of $10,000. Since the prayer of the complaint (together with that of a supplemental complaint) was for damages of a total of $4,000 plus punitive damages in the sum of $5,000, the verdict was plainly incorrect. It was reduced by the court to $4,000 for compensatory damages and $5,000 for punitive damages.

Compensatory Damages

In discussing the matter of compensatory damages, we shall consider preliminarily two elements which should not play any part in an award in this case. The first is the curious addition of $1 to the round figure of $5,000 in the verdict. Apparently, this was to counteract the award of $1 which the jury decided it had to award Bisso because of Donnell's undoubted, though innocent, trespass. In itself, this award of $1 to Donnell is of no moment, but it is significant, particularly in connection with the obviously excessive verdict, in showing a looseness of thought in the process of assessing damages. The second subject of comment, before our discussion of those damages ordinarily the subject of trespass actions, is that the jury was instructed that if they found that Either party was entitled to damages, they should consider not only other elements of damage as described, but also they should award such sum as would compensate such party reasonably for any discomfort, anxiety, annoyance and mental and emotional distress as had been suffered and had proximately resulted from the trespass. There was no evidence of these elements. The case does not resemble that of Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294 (cited in support of the instruction), in which the trespass was shutting off of water, which caused a relapse of mental illness of a plaintiff. Moreover, Donnell had not even pleaded the elements covered by the instruction. Bisso had done so, and evidently had offered the instruction, but it was limited, as offered, to Bisso's damages. The court changed it for the benefit of 'either party.' Thus, Bisso is not chargeable with having consented to the instruction as it applies on behalf of Donnell. Since the instruction was lacking in evidentiary support, it should not have been given.

Nevertheless, we might well sustain the judgment if ordinary damages, apart from those related to distress, had been proved. They were not, except one small...