Nebel v. Guyer

• Decision Date: 17 August 1950
• Citation: 99 Cal.App.2d 30,221 P.2d 337
• Court: California Court of Appeals Court of Appeals
• Parties: NEBEL et al. v. GUYER et al. Civ. 7687. Sac. 6027.

Page 337

221 P.2d 337

99 Cal.App.2d 30

NEBEL et al. v. GUYER et al.

Civ. 7687.

Sac. 6027.

District Court of Appeal, Third District, California.

Aug. 17, 1950.

Wm. M. Macmillan, Quincy, Bertram D. Janes, Portola, for appellants.

Walter E. Hettman, Herbert Chamberlin, San Francisco, for respondents.

ADAMS, Presiding Justice.

Plaintiffs brought this action to compel defendants Frank L. and Emmeline Guyer to remove a building which they claimed was constructed in part on the lot of plaintiffs. They also prayed for $500 punitive damages. After trial by the court sitting without a jury, plaintiffs appealed from a judgment for defendants.

The evidence shows that defendant Flournoy owned a large lot on the north side of Main Street in Quincy, Plumas County, which was bounded on the east by Church Street. Plaintiffs were tenants of Flournoy, occupying the easterly 50 feet of his lot, measured from a fence running north and south along Church Street, and had been such tenants for about eight years, occupying a dwelling thereon. In November, 1945, they decided to purchase the property they were renting and entered into an agreement with Flournoy whereby they were to purchase same upon terms therein set forth. Not long after the agreement was had, they advised Flournoy they would like a little more land to the west of their lot; and without further compensation, Flournoy agreed to give same to them. Thereupon, plaintiffs and Flournoy measured off 66 feet west from the fence along Church Street. To mark the dividing line they cut a notch in the front fence, and on the rear fence, 125 feet back, they drove a pin.

In November, 1946, defendants Guyer purchased from Flournoy the remaining portion of Flournoy's lot, measuring 100 feet along Main Street. In arranging for the purchase, Flournoy pointed out to them the marks indicating the west line of plaintiffs' lot. Later, the Guyers constructed a medical office building on their lot, all west of the line marked as aforesaid.

Plaintiffs saw the building being constructed and made no protest; but later they had a survey on their property made and the surveyor reported that the lot sold to them extended about 3 feet into Church Street. In other words it was the surveyor's conclusion that the fence along the Church Street side of the lot was out in the street, thus including in Flournoy's property a portion of the street itself. Plaintiffs then sought to move their west line westerly to compensate for the 3 feet of the street within the fence. Assuming such extension the surveyor testified that at the front of the property defendants' building extended 48/100ths of a foot and the eaves 1 55/100ths feet onto plaintiffs' lot, but that toward the rear of the building it did not encroach at all. The total encroachment of both building and eaves, if there was such encroachment, was but 2 03/100ths feet.

The trial court found that, in view of the line fixed by the markings made by plaintiffs and Flournoy, that line was plaintiffs' west line regardless of the developments resulting from the survey, and therefore no part of the medical building was on plaintiffs' lot. It also found that defendants had never interfered with plaintiffs' quiet and peaceable enjoyment of their property; that if any encroachment existed it was not of such a nature or extent as to occasion any damage or detriment to plaintiffs on their property; and that all the acts of defendants in the erection of their building were done in good faith and in the belief that said building was erected wholly upon their property. Furthermore the trial court took the position that even if a slight encroachment did exist, the damage to plaintiffs, if any, was too small to warrant the court in compelling the Guyers to move their building. It suggested to plaintiffs that by amendment they convert their action into one for damages actually suffered, if any, instead of asking the court to compel removal of the building; and it granted time for plaintiffs to so amend. Plaintiffs failed to amend. Appellants contend that the finding that no part of defendants' building encroaches upon plaintiffs' lot, is not sustained by the evidence. A somewhat similar situation was considered by this court in Arnold v. Hanson, 91 Cal.App.2d 15, 204 P.2d 97, in which we held that where a subdivider marks corners of lots and purchasers rely upon them, such marks are monuments fixing the boundaries and prevail over a later survey. Furthermore, Flournoy did not agree to convey any specific quantity of land to plaintiffs. He wanted to and did fix the west boundary, after donating an additional 16 feet at plaintiffs' request; and plaintiffs participated in fixing that line. In Togni v. Slocomb, 12 Cal.App. 733, 735, 108 P. 723, 724, this court said: 'Certainly, the grantors, if owning the land, had...