Mock v. Shulman

• Decision Date: 10 April 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Harold J. MOCK and Ruth S. Mock, Plaintiffs and Respondents, v. Harold SHULMAN and Beverly King Shulman, Defendants and Appellants. Civ. 26737.

Page 39

38 Cal.Rptr. 39

226 Cal.App.2d 263

Harold J. MOCK and Ruth S. Mock, Plaintiffs and Respondents, v. Harold SHULMAN and Beverly King Shulman, Defendants and Appellants.

Civ. 26737.

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

April 10, 1964.

Buchalter, Nemer, Fields & Savitch, Benjamin E. King, Los Angeles, for appellants.

Moore & Moore, Robert H. Moore, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiffs brought this action for damages and to restrain defendants from maintaining a thick growth of a line of sixteen Forbes Cypress trees which were blocking their view. From a judgment awarding damages and granting an injunction, defendants appeal.

Plaintiffs Harold and Ruth Mock and defendants Harold and Beverly King Shulman are adjacent property owners of hillside lots. Mocks' property is immediately to the north and above the Shulman property. Mock purchased his property in 1951, at which time the Shulman property was vacant, and Mock had a view which he described as a panorama of West Los Angeles, Santa Monica, the beach cities, Palos Verdes, Catalina, and even around to Long Beach. The Shulman property was designed by architect Lloyed Wright, whose concept for development of the property was described by Shulman as involving 'the setting of a residence in a park-like area with a maximum of privacy and a maximum orientation toward the southwest.' In accordance with this plan sixteen Cypress trees were planted at intervals of about six to eight feet on the northerly side of the property. Plaintiffs' lot is fifteen to twenty feet higher than defendants' property, and it was not until 1957 and 1958 that the Cypress trees began to be a problem, when they started to interfere with the light, air and view from the Mock property. The trees completely or partially blocked the Mocks' view from their home and yard. When Mock was unable to work out any solution for the problem this suit was instituted.

The gravamen of the action was that the trees were maintained in violation of tract restrictions and a city ordinance. On the first cause of action the court found that there were existing equitable servitudes on the properties of both parties, and that one of the restricitons was that 'No fence, wall or hedge over six feet in height shall be erected or grown or permitted to exist on any lot or lots in said tract within fifteen feet of any boundary line of any lot; provided, however, that the restrictions set forth in this paragraph 4 may be waived or modified as to any lot or lots in said tract by a written instrument duly executed by the Architectural Supervising Committee.' The court further found that there had been no waiver or modification of the above restriction, and 'that the defendants, within the last two years, have not only permitted said 16 cypress trees to grow in height, but they have violated the covenant of said deed restrictions * * * in that defendants, and each of them, have grown, maintained and permitted to exist on the northerly side of their said lot in said tract, during this period, as a result of the growth of said 16 trees and their intertwining and interlacing, a hedge over six feet in height within 15 feet of plaintiffs' and defendants' said common boundary line.'

The court found that the trees interfered with the Mocks' light and air, and their comfort, use and enjoyment of their property and constituted a continuing nuisance.

The Shulmans were enjoined and restrained from maintaining or allowing to exist at any time prior to January 1975, when the restrictions will expire, any hedge over six feet in height within fifteen feet of their northerly boundary. We have concluded that defendants' attack upon this feature of the judgment must fail.

Defendants contend there was no proof that their property was restricted, since only their own deed was placed in evidence. Their position is untenable. That was not an issue in the case. The complaint set out the pertinent provisions of the restrictions and alleged that both properties were subject to the same. The answer specifically admitted the properties were restricted as alleged and there was a stipulation to the same effect in the pretrial proceedings.

The court found that the restrictions were imposed upon all the lots in the tract in which the respective lots of the parties were located; they were for the mutual benefit of the entire tract and the owners of the several lots therein, ran with the land and were binding upon and enforceable by each lot owner as agianst all other lot owners. The restrictions were in the form that has often been held adequate to create mutual equitable servitudes, breach of which will be enjoined. (Robertson v. Nichols, 92 Cal.App.2d 201, 206, 206 P.2d 898; Gamble v. Fierman, 82 Cal.App. 180, 255 P. 269; 14 Cal.Jur.2d Covenants, Etc., Sec. 102, pp. 116-117.)

Defendants next contend the court was in error in finding that the trees constitute a hedge. Witnesses having familiarity with planting of shrubs and trees expressed divergent views as to what growth would and what would not constitute a hedge. This evidence, as would be expected, was inconclusive. The trial judge visited the premises and loked at a line of trees some 18 to 20 feet in height with intertwining branches and foliage of a density which constituted a barrier to sight and shut off the view from portions of the Mock residence. He found this obstruction to be a hedge within the meaning of the restrictions, as it undoubtedly was. The purpose of the restriction was to prevent interference with the full and free use of adjoining property by means of tall growths of shrubs or trees, and 'hedge' must be given a meaning consistent with that purpose. The judgment contained a definition of the word 'hedge,' as any tree or shrub, any portion of which came within three feet of any other tree or shrub or any portion thereof. The evidence was sufficient to warrant the finding that a hedge existed. The definition of 'hedge' was carried into the judgment to describe the growth of trees or shrubs that would be in violation of the injunction.

Defendants contend that the restriction with respect to hedges was waived. It was alleged in the answer that the restrictions provide that all planting of trees, bushes and shrubbery should be designated upon plans to be submitted to a committee established under the restrictions, for its approval; defendants' plans and specifications for the planting of the trees were submitted to and approved by the committee; the trees were planted in accordance with the plans. Defendants contended that approval of the plan of planting constituted a waiver of the provision which limited the height of hedges within 15 feet of the exterior boundaries of a lot to six feet. The court found there had been no waiver. The trees when planted were very small and there was evidence that it would have been feasible to keep them trimmed to a legal height. The finding against the claim of waiver had support in the evidence.

The feature of the judgment which enjoins defendants from maintaining the trees as a hedge over six feet in height at any time prior to January 1975 must be affirmed.

The judgment also enjoins defendants from maintaining or permitting to exist on the northerly side of their property near the common boundary line any hedge or hedge effect more than six feet in height as prohibited by the ordinance. (Municipal Code section 12.22, subsection C, subdivision 20, paragraphs (f) and (i).) Paragraph (f) provides in part that 'A fence, lattice work screen, wall, hedge, or thick growth of shrubs or trees, not more than six feet in height above the natural ground level adjacent thereto, may be located and maintained * * * in the required side or rear yard, * * * in any zone * * *.'

Although the injunction, based upon the restrictions, which will be effective until 1975, would seem to be adequate to settle the present controversy, the restraint based upon the ordinance is permanent and presents an additional question.

The contentions of the parties may be summarized as follows: defendants contend that under the ordinance the width of their required side yards is five feet; the trees are not within this five foot area and, therefore, are not in violation of the ordinance. Plaintiffs contend that even if the trees are not within the five foot area their maintenance as a hedge is nevertheless forbidden by the ordinance.

Both properties are in Zone R-1 and under Municipal Code section 12.08, subsection C, subdivision 2, the required side yard is five feet. Defendants requested a special finding to the effect that the trees are not within five feet of the border line, but the court made no finding upon that factual question. Therefore, it may not be presumed that the court found the trees to be within the five foot area. (Code Civ.Proc. § 634) The only evidence upon this point was the testimony of Mr. Mock and one defense witness that the trees...