Kitzman v. Newman

• Decision Date: 17 November 1964
• Citation: 41 Cal.Rptr. 182,230 Cal.App.2d 715
• Parties: Louis KITZMAN and Selma Kitzman, Plaintiffs and Respondents, v. Mark NEWMAN and Barbara Newman, Defendants and Appellants. Civ. 27233.
• Court: California Court of Appeals Court of Appeals

Page 182

41 Cal.Rptr. 182

230 Cal.App.2d 715

Louis KITZMAN and Selma Kitzman, Plaintiffs and Respondents, v. Mark NEWMAN and Barbara Newman, Defendants and Appellants.

Civ. 27233.

District Court of Appeal, Second District, Division 3, California.

Nov. 17, 1964.

Gold, Sturman & Gold and J. George Gold, Beverly Hills, for appellants.

Jerome S. Monosson, North Hollywood, for respondents.

FORD, Justice.

This is an appeal by the defendants from a judgment awarding damages to the plaintiffs. The defendants' building was on land adjoining that of the plaintiffs on Ventura Boulevard in the Encino section of the City of Los Angeles. The defendants extended their building across a sidewalk theretofore used by the public and thereby obstructed the view of the front of plaintiffs' building by persons proceeding along Ventura Boulevard in an easterly direction.

The defendants have elected to present their appeal on a settled statement pursuant to rule 7(a) of the California Rules of Court.

At the place where the two buildings are located, Ventura Boulevard runs in an easterly and westerly direction and is the principal business street in the community. The buildings are on the south side of the boulevard. The plaintiffs' property is to the east of that of the defendants. In the latter part of 1953 the defendants commenced the construction of their one-story building containing four stores. It was completed in January of 1954. As a part of the project, the defendants constructed a concrete sidewalk, which was 10 feet in width, across the entire front of their lot. This sidewalk was immediately adjacent to the front of their building. The space of 20 feet which separated the sidewalk from the paved surface of Ventura Boulevard was covered by the defendants with black asphalt paving and was thereafter used as a parking area for automobiles. Wooden blocks were installed to prevent vehicles from driving onto the concrete sidewalk. For a period of about six and one-half years, ending in June of 1960, pedestrian use was made of the sidewalk by some members of the general public proceeding along that side of Ventura Boulevard.

Shortly after the defendants' building was completed, the plaintiffs erected on their lot a one-story building containing four stores. They located the front of their structure on a line even with that of the front of the defendants' building. On the front of the plaintiffs' building were stone flower-boxes and the doors and windows of the four stores were in a recessed position about two feet to the rear of the front line of the building. The space between the plaintiffs' building and the curb of Ventura Boulevard was approximately 15 feet in width, and at the time the plaintiffs acquired their lot, it was subject to an expressly dedicated easement for sidewalk purposes over that entire space. The plaintiffs constructed a concrete pavement thereon for use as a sidewalk.

As has been indicated, the front building lines of the two buildings were not parallel with the southerly curb line of Ventura Boulevard. The angle of the curb line, as it progressed westerly, was towards the north. Except for the strip of wooden blocks, there was no curb in place in front of the defendants' property.

The lot which adjoined the plaintiffs' property on the east was unimproved, but on the lots to the east of it were business buildings. When the defendants' building and that of the plaintiffs were built, the front building lines thereof conformed with those of the buildings to the east in the same block. Immediately adjacent to the defendants' property was the property of a church which extended to the end of the block on the west.

For many years prior to 1954 the public had established a sidewalk course in the block. It ran along the concrete sidewalk in front of the improved properties on the easterly portion of the block, over the vacant lot easterly of the plaintiffs' property and over the front of the plaintiffs' unimproved property. At this point some of the public would continue to walk across the defendants' property, turn north and walk along a walkway between the defendants' property and the church property, and then turn west and pass in front of the church property along a dirt path which ran in front of some benches. Some of the public, however, would not turn north to the pathway just described, but they would continue in a westerly direction over a pathway across the church property which passed in front of a brick wall. The same means of passage would be used by persons going in the opposite direction. After passing over the front of the plaintiffs' unimproved properties, others of the public would walk at various angles across the front of the defendants' property to reach the direct pathway in front of the benches on the church property. The pathway in front of the benches was approximately 15 to 20 feet to the north of the original dirt sidewalk route over the respective lots of the plaintiffs and the defendants before the erection of the buildings thereon, but the pathway near the front brick wall on the church property was approximately even with the original dirt sidewalk route over the plaintiffs' and defendants' lots, both before and after the construction of their respective buildings.

After the construction of the Kitzman and Newman buildings in 1954 and the installation of the concrete pavement in front of each of the buildings, the public used approximately the same areas and direction for passing in front of the plaintiffs' building and that of the defendants. From 1954 to June of 1960, pedestrians walked over and along the concrete sidewalks in front of the two properties. Until June of 1960 there was a common sidewalk route from the intersection of the street to the east. It ran along and in front of various store properties, including those of the parties to this action, up to the westerly boundary of the defendants' property and then westerly over the church property.

A building permit dated November 29, 1959, was issued to the defendants by the Department of Building and Safety of the City of Los Angeles. The permit authorized them to remodel their original store building so as to change it into a two-story office building. It also permitted the construction of the front of the building on a line 10 feet to the north of the front of the existing building, with the result that a portion thereof would be on the entire area, 10 feet in width, previously allotted to the concrete sidewalk in front of the original building. The detailed plans for such extension of the front line of the building were approved as part of such permit as of January 7, 1960.

When the defendants acquired their lot, there were in existence no express dedications of easements over that property for sidewalk purposes. In December of 1959, the defendants granted to the City of Los Angeles an easement for street purposes on the remaining northerly 20 feet of their lot, this being the portion which had previously been covered with black asphalt paving and used for the parking of automobiles in front of the original building. The granting of such easement, however, was not a condition precedent to the granting of a permit by the city for the erection of the new structure.

Dr. Kitzman, one of the plaintiffs, was a veterinarian and conducted a small animal clinic in one of the stores in the plaintiffs' building. The three other stores were rented to tenants who maintained signs and window displays relating to their respective businesses.

When the defendants started their new building project, the plaintiffs immediately objected, both orally and by formal notice, to the elimination or obstruction of the sidewalk in front of the defendants' property. When the project continued, the plaintiffs filed the present action for an injunction and for damages.

With respect to the relationship of various lots in the block to the line of Ventura Boulevard, the settled statement is in part as follows: 'There is an uneven area for the boulevard itself and uneven and jagged lines respresenting the northerly boundary line of various properties along the southerly part of the boulevard. For instance, the church property to the west of Newman's [defendants'] property extends northerly up to the boulevard, some 30 feet from a line extending the originally established building line of Kitzman's [plaintiffs'] building and Newman's [defendants'] building. * * * The City of Los Angeles has future plans with respect to the development of Ventura Boulevard in that area. Such plans involve a sidewalk area northerly of the present front building line of Newman's [defendants'] new building running westerly over part of the church property and in front of the Acacia Life Insurance Building, (in the next block to the west), which building has now the same front set-back line as Newman's new building. This sidewalk would run easterly in front of Kitzman's [plaintiffs'] property and other property eastward slanting down, finally meeting the present sidewalk durb line. This would mean that there would be a ten foot strip of land in front of Kitzman's [plaintiffs'] existing building starting at a point approximately ten feet northerly on the westerly boundary of his property and decreasing easterly to a point five feet north of his present property line at the east boundary of his property, being made available for the enlargement and extension of his building northerly toward Ventura Boulevard and in such case his new building line would not be on a line with the building line of plaintiff's [sic] new building and with the larger Acacia Life Insurance Building to the west except at the northerly boundary of plaintiff's property. This new building line would start at a point on the west boundary of plaintiff's property approximately ten feet north of plaintiff's present frontage and would then follow a course generally southeasterly...