People v. Watkins

• Decision Date: 10 November 1959
• Citation: 345 P.2d 960,175 Cal.App.2d 182
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jess F. WATKINS and Lolita M. Watkins, Defendants and Appellants. Civ. 23955.
• Court: California Court of Appeals Court of Appeals

Page 960

345 P.2d 960

175 Cal.App.2d 182

PEOPLE of the State of California, Plaintiff and Respondent, v. Jess F. WATKINS and Lolita M. Watkins, Defendants and Appellants.

Civ. 23955.

District Court of Appeal, Second District, Division 1, California.

Nov. 10, 1959.

Gray, Glass & Allen, Gardena, for appellants.

Lloyd A. Bulloch, Compton, Anson, Gleaves & Dowds, Los Angeles, for respondents.

LILLIE, Justice.

An action to abate a nuisance resulted in the lower court's judgment enjoining defendants from maintaining a certain building within 50 feet of the center line of Compton Boulevard, and ordering them to remove the same.

Certain sections of the Municipal Code of the City of Compton established a building set-back line 50 feet from the center of the street along the south side of Compton Boulevard at the location of a lot owned by defendants; and prohibited the construction of any structure within the 50 foot area. In 1956, defendants built on their lot a one-story frame building, which since its completion they have used as an insurance, real estate and income tax office. The northerly 7 feet of this structure constituting the front portion of the building extends into the prohibited set-back area.

The trial court found that this 7 foot encroachment interferes with the ability of motorists driving easterly along Compton Boulevard to see beyond to the next intersection, creating a public danger to both vehicular and pedestrian traffic; and obstructs light, air and visibility to and from adjacent properties in different prior ownership, constituting a continuing public nuisance.

In March, 1957, the City of Compton filed an action to condemn an easement for street purposes to widen and improve Compton Boulevard. Included in the land to be taken was the encroaching portion of the building lying within the set-back line of the defendant's property. On October 18, 1957, an Order for Immediate Possession was issued by the Superior Court giving the city the right to enter upon the property over which it proposed to acquire the easement. Pursuant thereto, a curb was constructed by the city but defendants continued to use and occupy the entire building including the encroaching front portion thereof, and are presently doing so. The condemnation proceeding is still pending.

Appellants contend that the City of Compton, through acts of its employees, is estopped from enforcing the set-back ordinance against them; and the Order for Immediate Possession in the eminent domain proceeding relieved them from the duty of abating any nuisance upon the land.

While the pleadings in the trial court did not actually raise the issue of estoppel, and ordinarily '(I)t is too late to attempt to invoke an estoppel as a defense to an action, for the first time, on appeal' (Sinai v. Mull, 80 Cal.App.2d 277, 284, 181 P.2d 924, 929; Medeiros v. Cotta, 134 Cal.App.2d 452, 286 P.2d 546), 'the evidence upon which it was based was admitted without objection and therefore the necessity for pleading it, if such necessity existed, was waived. See Foster v. Fisher, 44 Cal.App.2d 33, 37, 111 P.2d 935.' (Robison v. Hanley, 136 Cal.App.2d 820, at page 824, 289 P.2d 560, at page 563; Pacific Finance Corp. v. Foust, 44 Cal.2d 853, 285 P.2d 632). And although at the outset of the trial the parties by stipulation attempted to limit the issue to whether the building constitutes a public nuisance, it is obvious from the record that the defense of estoppel was actually litigated, evidence thereon was received without objection, the action was tried upon the implied theory that it was not necessary to plead the facts relied upon as constituting an estoppel, and the query 'whether or not there can be an estoppel against a Municipal Government' was submitted to the trial judge and argued by counsel with citation of authority.

It is well settled that the existence of an estoppel is a question of fact for the trial court, and ordinarily its decision that an estoppel has not been made out is binding on appeal, 'unless the opposite conclusion is the only one which can reasonably be drawn from the facts * * *.' (Pacific Gas & Electric Co. v. State Board of Equalization, 134 Cal.App.2d 149, at page 156, 285 P.2d 305, at page 309; John Paul Lumber Co. v. Agnew, 125 Cal.App.2d 613, 623, 270 P.2d 1044; City of Sacramento v. Jensen, 146 Cal.App.2d 114, 303 P.2d 549). It is conceded that no specific finding of the matter of estoppel was made by the trial court; but it is apparent from its findings and conclusions (that the existence of the 7 foot portion of defendant's building within the set-back area in violation of the city ordinance constitutes a public nuisance, and nothing in the order for immediate possession in the eminent domain proceeding relieves defendants from their responsibility for the maintenance of the offending portion as a continuing nuisance) that the trial judge must necessarily have passed upon the issue of estoppel; and by finding in favor of plaintiff the lower court impliedly found against defendants on that issue. Under the circumstances we construe in the trial court's findings of fact an implied finding that the facts relied upon by defendants were not sufficient to constitute the defense of estoppel. Fair Oaks Bank v. Johnson, 198 Cal. 196, 203, 244 P. 335. Reviewing the record before us, we cannot say that an 'opposite conclusion' is the only one which could be reasonably drawn from the evidence.

Urging an estoppel against the City, appellants rely chiefly upon the testimony of their draftsman that, before submitting their plan to the City, he called on the telephone a 'Mr. Newton' of the Building and Safety Department and asked him 'what was the set-back in the building line to the property line if one existed,' to which he replied 'that on commercial property there is no set-back from the property line'; and on evidence that a building permit was issued and the plans were approved by the City of Compton, and that although there were 7 routine visits by a City Inspector during the first part of the construction, no complaint was made by him.

However, the entire record shows considerable conflict on the point whether an estoppel in fact exists, which the lower court no doubt used as its basis for denying defendants the equitable relief estoppel affords. That it was justified in doing so appears from defendant Watkins' own testimony that from the very beginning, long before construction began, defendants knew, or were put on reasonable notice, of the existence of the set-back line; and that with full knowledge that the structure violated the Municipal Ordinance, they refused to obey the City's stop-notice and completed the building. His testimony discloses that at the time he initially discussed preparation of the plans for the building, particularly with respect to its location on the ground, he was aware of the set-back line along Compton Boulevard by virtue of an item in his policy of title insurance stating 'on Lemon Street (Compton Boulevard) there was certain set-back or something to that effect.' He requested his draftsman to check the matter; but over and above the one telephone conversation the latter had with a Mr. Newton (who was not called by defendants as a witness), neither defendant Watkins nor the draftsman, nor anyone on their behalf, made inquiry of any kind or any effort to determine set-back requirements of the Municipal Ordinance as they applied to defendants' land. Additionally, in signing his Building Application (Exhibit A), defe...