Pahl v. Ribero

• Decision Date: 19 June 1961
• Citation: 14 Cal.Rptr. 174,193 Cal.App.2d 154
• Court: California Court of Appeals Court of Appeals
• Parties: Augusta PAHL, Plaintiff and Appellant, v. James RIBERO and Louise Ribero, Defendants and Respondents. Augusta PAHL, Plaintiff and Respondent, v. James RIBERO and Louise Ribero, Defendants and Appellants. Civ. 19444, 19476.

Page 174

14 Cal.Rptr. 174

193 Cal.App.2d 154

Augusta PAHL, Plaintiff and Appellant, v. James RIBERO and Louise Ribero, Defendants and Respondents.

Augusta PAHL, Plaintiff and Respondent, v. James RIBERO and Louise Ribero, Defendants and Appellants.

Civ. 19444, 19476.

District Court of Appeal, First District, Division 2, California.

June 19, 1961.

Langer & Simpson, San Francisco, for Augusta Pahl.

Molinari, Casalnuovo & Berger, by Leonard B. Berger, San Francisco, for James Ribero and Louise Ribero.

KAUFMAN, Presiding Justice.

These appeals were consolidated in an action for a mandatory injunction brought by Augusta Pahl, hereinafter referred to as plaintiff, against her neighbors, James and Louise Ribero, hereinafter referred to as defendants. The parties own adjoining parcels of real property fronting on Third Street in San Francisco: the plaintiff at 3908 Third Street immediately to the south of the defendant at 3900 Third Street, the corner of Third Street and Fairfax Avenue.

On March 20, 1959, plaintiff filed her complaint alleging that for some years, the defendants had maintained a continuing nuisance and trespass by causing and permitting their premises to lean and bulge in a southerly direction and into and upon her property up to approximately 7 3/8 inches, and causing the two-story frame building on her property to be moved, bowed, pushed to the south off the property, and requested a mandatory injunction and $10,000 damages for the cost of repairs.

The defendants answered and cross-complained, alleging that the natural grade level of both properties was far below the grade of the street upon which both pieces of property fronted; that from time to time, plaintiff had brought in fill upon her property and raised the natural grade level of the property to that of the street, and had used the foundation wall of the defendants' property as a retaining wall, which constituted a continuing nuisance and created enormous pressure so that the defendants' property buckled and leaned in a general southerly direction. The cross-complaint requested that the plaintiff's maintenance of fill on the defendants' property be declared a private nuisance, a mandatory injunction, and $10,000 damages for cost of repairs.

After a trial without a jury which continued for several days, the trial court found the following facts: that for many years, there has been an overhang which at the southwest corner of the defendants' buildings extended over the property of the plaintiff as much as 7 1/2 inches and continuing toward the front of the defendants' property to a diminished extent; that the cost of the necessary repairs and alterations so as to align plaintiff's building to be in its entirety within the boundary line of the land owned by plaintiff was $5,600; and that the reasonable market value of plaintiff's property and improvements has been reduced by this amount.

The court further found that the building owned by the plaintiff had moved laterally and was bowed and disaligned; that the cause of this lateral displacement, bowing and disalignment was not known; that neither of the defendants had been negligent in the construction or maintenance of the overhang, and that the defendants were innocent of any fault in the production or development of the overhang and that the defendants had not acted or failed to act in any way which contributed to or caused the overhang.

The court further found that the plaintiff had no immediate plan for any use or occupancy of said property with which the existence of said overhang would in any manner interfere, or which would in any way be damaged by the overhang, so that money damages would adequately and fully compensate plaintiff for all injuries suffered, and found the damages to her, past present and future would not exceed $1,000, if the encroachment was allowed to remain and was not increased; that the western portion of the southerly foundation wall of defendants' building leaned in a southerly direction at the side but the footings of the foundation of the defendants' building are entirely upon their lot and the ground level where the foundation was laid; that the hardship resulting to the defendants by granting the mandatory injunction prayed for would be greatly disproportionate to the hardship caused to the plaintiff by continuance of the overhang as the cost to defendants for the removal would be $5,950.

From the above, the court concluded that: 1) the overhang constituted the maintenance of a continuing private nuisance; 2) the reasonable cost of the alterations and repairs to the plaintiff's property so as to remove the bowing and disalignment and lateral movement and replace said building entirely within the boundary lines of her own property was $5,600, and that the reasonable market value of her property has been reduced by that amount; 3) the plaintiff was entitled to an additional amount of damages of $1,000 for the overhang over the portion of her real property above the ground; 4) the defendants' structure was not a trespass on the plaintiff's land; and 5) the defendants were to take nothing by virtue of their cross-complaint.

Thereafter, on December 22, 1959, the court made and entered a document entitled 'Interlocutory Judgment On Findings', denying relief on the cross-complaint, denying plaintiff's request for mandatory injunction without prejudice but expressly reserving jurisdiction to afford relief to the plaintiff if the overhang of the defendants' building across the common building line increased or if the plaintiff or her successors in interest proved to the satisfaction of the court that she had the present intention to realign the building on her property so that it would be contained entirely within its boundaries, and awarding the plaintiff $1,000 damages for the encroachment on her real property above the ground, and her costs of suit. On February 17, 1960, plaintiff filed her appeal, No. 19444, from that judgment.

Thereafter, plaintiff filed her motion for a mandatory injunction in accordance with the above mentioned provisions of the interlocutory judgment. At the hearing on this motion on February 11, 1960, evidence was introduced to indicate that the plaintiff had signed a contract of sale with a purchaser, Mr. Heil, who had a present intention to realign the building within the boundaries of the property. The trial court granted plaintiff's motion for a mandatory injunction on February 29, 1960, and on April 4, 1960, the defendants filed their appeal, No. 19476, from the order granting the mandatory injunction.

On September 12, 1960, defendants filed a motion to dismiss the plaintiff's appeal from the prior order denying the injunction (No. 19444). This court denied the motion without prejudice and the two appeals were consolidated by stipulation.

Defendants have filed a joint brief in both matters; in No. 19476 in which they are the appellants, they argue that the trial court erroneously granted the injunction because the evidence indicated that the defendants were not responsible for the movement of the plaintiff's property and the resulting bowing and disalignment, and because the trial court failed to balance the equities; in No. 19444, in which they are the respondents, defendants argue that the appeal from the order denying the injunction should be dismissed because the order was not an appealable final order as evidenced by the subsequent order granting the injunction; and that the damages awarded by that order should be denied as the trial court specifically found that they had not caused the overhang or the movement of the plaintiff's property. In No. 19444, in which she is the appellant, plaintiff argues that the interlocutory order was a final appealable order and that she should be awarded the $1,000 damages awarded therein as the defendants have not appealed therefrom. In No. 19476, in which she is the respondent the plaintiff argues that the injunction was properly granted but that the court erred in not also awarding her damages of $5,600.

The issues thus presented for our consideration are: (1) Is the judgment of December 22, 1959, denying plaintiff's request for a mandatory injunction an appealable order? (2) If so, is the appeal therefrom [No. 19444] made moot by the subsequent proceedings? (3) Did the trial court properly grant the plaintiff's motion for a mandatory injunction? (4) If so, is the plaintiff entitled to both injunction and damages?

The first question on appeal is whether the order and judgment of December 22, 1959 [No. 19444], denying plaintiff's request for an injunction is an appealable order. Defendants argue that since the order is labeled 'interlocutory' and is by its terms temporary in effect, it is not an appealable one; plaintiff contends that the order is final and appealable.

'Generally no appeal can be taken except from a final order or judgment as defined in the statutes and developed in the case law. Code Civ.Proc. § 963; Lavine v. Jessup, 48 Cal.2d 611, 613, 311 P.2d 8. It is recognized, however, that the term 'a final judgment' as used in the statute is not limited to the final judgment entered in an action (Sharon v. Sharon, 67 Cal. 185, 196, 7 P. 456, 635, 8 P. 709), and that it is the substance and effect and not the designation 'interlocutory' or 'final' which determines the appealability of a judgment * * *' Southern Pacific Co. v. Oppenheimer, 54 Cal.2d 784, 785, 8 Cal.Rptr. 657, 658; In re Los Angeles County Pioneer Society, 40 Cal.2d 852, 857-858, 257 P.2d 1; Lyon v. Goss, 19 Cal.2d 659, 669-670, 123 P.2d 11; Security-First Nat. Bank of Los Angeles v. Superior Court, 132 Cal.App. 683, 23 P.2d 1055.

Section 963 of the Code of Civil Procedure specifically provides and appeal will lie from an order granting or refusing to grant an injunction (Code Civ.Proc. § 963, subd 2). The intent of the statute is that all orders granting or refusing injunctions shall be...