Troeger v. Fink

• Decision Date: 10 December 1958
• Citation: 166 Cal.App.2d 22,332 P.2d 779
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia Ruff TROEGER and Richard Louis Ruff, Plaintiffs and Appellants, v. Arthur S. FINK and Edith L. Fink, his wife; Theodore H. Fink and Dora C. Fink, his wife; Sidney D. Witherow and Emily Huntington Witherow, his wife; John First, John Second, John Third, John Fourth, John Fifth, John Sixth, John Seventh, John Eighth, John Ninth, John Tenth; Richard First, a copartnership, Richard Second, a copartnership; Samuel Company First, a corporation, Samuel Company Second, a corporation; Hay Corporation, a corporation and Bank of Encino, a corporation, Defendants. Arthur S. Fink and Edith L. Fink, his wife; Theodore H. Fink and Dora C. Fink, his wife; Sidney D. Witherow and Emily Huntington Witherow, his wife; and Hay Corporation, a corporation, Respondents. Civ. 23224.

Page 779

332 P.2d 779

166 Cal.App.2d 22

Virginia Ruff TROEGER and Richard Louis Ruff, Plaintiffs and Appellants, v. Arthur S. FINK and Edith L. Fink, his wife; Theodore H. Fink and Dora C. Fink, his wife; Sidney D. Witherow and Emily Huntington Witherow, his wife; John First, John Second, John Third, John Fourth, John Fifth, John Sixth, John Seventh, John Eighth, John Ninth, John Tenth; Richard First, a copartnership, Richard Second, a copartnership; Samuel Company First, a corporation, Samuel Company Second, a corporation; Hay Corporation, a corporation and Bank of Encino, a corporation, Defendants Arthur S. Fink and Edith L. Fink, his wife; Theodore H. Fink and Dora C. Fink, his wife; Sidney D. Witherow and Emily Huntington Witherow, his wife; and Hay Corporation, a corporation, Respondents.

Civ. 23224.

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

Dec. 10, 1958.

Hearing Denied Feb. 4, 1959.

Andrew J. Copp, Jr., and H. Dexter McKay, Los Angeles, for appellants.

Bromberg & Cravitz, Bennett J. Cravitz, Los Angeles, for respondents Arthur S. Fink, Edith L. Fink, Theodore H. Fink, and Dora C. Fink.

C. S. Tinsman, Los Angeles, for respondents Sidney D. Witherow and Emily Huntington Witherow.

Ames, McGee & Tumbleson, Glenn C. Ames, Encino, for respondent Hay Corp.

HERNDON, Justice.

Alleging an encroachment upon their unimproved property by one or the other, or both, of two commercial buildings which had been constructed respectively upon lots adjoining their property on opposite sides, plaintiffs sought damages, a mandatory injunction, and other equitable relief. Contrary to plaintiffs' allegations, the trial court found that neither of the two buildings encroached, and, in addition, held that plaintiffs' action was barred by limitations and laches. Plaintiffs have appealed from the judgment '* * * in so far as it is in favor of defendants and against plaintiffs * * *.'

The real property involved in this action is situated in Block G of Encino Tract, a subdivision facing on Ventura Boulevard in the city of Los Angeles. Originally this subdivision was a part of a larger area designated as Tract 2955. In 1922 Encino Tract was surveyed and the map thereof was duly recorded. All parties to this action received their interests in their respective lots by and through deeds, each of which incorporates said map by reference. Thus, in each instance, said map constitutes a part of the legal description of the land granted. Anderson v. Trotter, 213 Cal. 414, 420, 2 P.2d 373; see 15 Cal.Jur.2d 569, § 166.

According to the map of Encino Tract there are twenty lots in block 'G' which front on the north side of Ventura Boulevard between Genesta Avenue on the east and Amestoy Avenue on the west. The lots are numbered consecutively from east to west, lot 1 being on Genesta and lot 20 on Amestoy. Plaintiffs are the owners of lots 15 and 16, which are interior lots, located somewhat westerly of the center of the block. Plaintiffs acquired these lots in January, 1959; said lots then were and still are unimproved. Lot 14, which adjoins plaintiffs' lots on the east, is owned by the defendants Witherow. The Witherows acquired lot 14 in 1949 anud 1950 they constructed thereon a commercial building, hereinafter referred to as the Witherow Building. The east half of lot 17 which adjoins plaintiffs' property on the west is owned by the defendants Fink. The Finks acquired their lot in July, 1954, from defendant Hay Corporation, the present owner of the beneficial interest under a deed of trust affecting the property. In 1945 a one-story commercial building was constructed on the easterly half of lot 17 by one Samuel Garvin, who later conveyed the property to defendant Hay Corporation, which, in turn conveyed to the defendants Fink. This building will be referred to hereinafter as the Fink building.

The map of Encino Tract (by reference to which all four involved lots were described) indicates that plaintiffs' two lots should have a total frontage of 61.56 feet on Ventura Boulevard and a frontage of 62.34 feet on the alley to the north paralleling Ventura Boulevard. In 1955 plaintiffs employed F. William Pafford, a licensed surveyor, to make to survey of their lots. The map which Pafford prepared in connection with his 1955 survey indicated that the Fink building encroached upon plaintiffs' lot 16 to the extent of approximately 3 1/2 feet. Pafford's map and report indicated that the Witherow building was constructed entirely on lot 14 and did not encroach on plaintiffs' property. The record reveals that in 1950 the Witherows had employed Pafford to survey lot 14, and that the Witherow building was thereafter constructed in reliance upon Pafford's survey.

On August 20, 1956, plaintiffs filed the instant action joining as defendants all parties appearing to have any interest in the two lots adjoining their own on the east and west, respectively, and alleging that both the Fink building and the Witherow building were encroaching structures. Plaintiffs prayed for a declaratory judgment, a mandatory injunction to compel the removal of any encroaching structure and for a judgment quieting their title to lots 15 and 16. During the course of trial, plaintiffs were allowed to amend their complaint to include a cause of action for damages for the alleged encroachment. All defendants answered, denying any encroachment and alleging the affirmative defenses of laches and the three-year statute of limitations (Code Civ.Proc. § 338, subd. 2).

There was a trial by the court sitting without a jury, and at the conclusion of plaintiffs' case the defendants severally moved for a non-suit. At the suggestion of the trial judge, these motions were withdrawn, the defendants rested and the cause was submitted on the merits. Thereupon, the court ordered judgment in favor of defendants. The findings and judgment expressly declare: (1) that neither the Witherow building nor the Fink building encroaches on plaintiffs' property; (2) that each of said buildings '* * * is located and lies wholly and completely within the confines and boundaries * * *,' respectively, of lot 14 and the easterly half of lot 17; (3) that '* * * all of said Witherow Building lies easterly of the common boundary line * * *' between the Witherow property and plaintiffs' property; and (4) that '* * * all of said Fink Building lies westerly of the common boundary line * * *' between the Fink property and plaintiffs' property. The judgment quiets plaintiffs' title to lots 15 and 16. In the findings and judgment the four involved lots are described in the same manner that they are described in the deeds by which the parties acquired them, that is, by reference to the same map of the Encino Tract. In its conclusions of law, the court declared that except as to their cause of action to quiet title, plaintiffs' action was barred by laches and by the provisions of section 338, subdivision 2 of the Code of Civil Procedure.

Plaintiffs' contentions on this appeal are as follows: (1) that the findings are contrary to undisputed evidence insofar as they declare that neither of the buildings erected on adjoining lots encroaches on plaintiffs' property; (2) that certain of the findings are mutually inconsistent; (3) that the findings with respect to the nonexistence of the alleged encroachments are inconsistent with the conclusion that plaintiffs' action is barred by laches and limitations; and (4) that the trial court's conclusion that the action is barred by laches and limitations is erroneous as a matter of law. We shall discuss these contentions in their inverse order.

The facts bearing upon the application of the statute of limitations are clear and undisputed, and may be recapitulated very briefly. In 1945 Mr. Garvin erected the Fink building, a one-story commercial structure, on the easterly half of lot 17. Thereafter, Garvin conveyed the property to defendant Hay Corporation, and in 1954 Hay Corporation conveyed it to the Finks. Plaintiffs acquired their lots 15 and 16 in January, 1949. Later in 1949 the Witherows bought lot 14 and in 1950 they constructed the Witherow building thereon. The instant action was filed in August of 1956, about eleven years after the construction of the Fink building, about six years after the construction of the Witherow building, and more than seven years after plaintiffs acquired lots 15 and 16.

Under well settled California law plaintiffs' causes of action for damages and for an injunction to compel removal of the allegedly encroaching structures are barred by the provisions of section 338, subdivision 2 of the Code of Civil Procedure, which require that 'An action for trespass upon or injury to real property' must be brought within three years after the accrual of the cause of action. Where one party so constructs a permanent building that it encroaches upon the land of another, the trespass is regarded as permanent in nature; causes of action for damages and for injunctive relief accrue when the trespass is committed and are barred three years thereafter. Rankin v. DeBare, 205 Cal. 639, 641, 271 P. 1050; Williams v. Southern Pacific R. R. Co., 150 Cal. 624, 626, 89 P. 599; Tracy v. Ferrera, 144 Cal.App.2d 827, 828, 301 P.2d 905; Bertram v. Orlando, 102 Cal.App.2d 506, 509, 227 P.2d 894, 24 A.L.R.2d 899; cf. Fay Securities Co. v. Mortgage Guarantee Co., 37 Cal.App.2d 637, 642, 100 P.2d 344. The Fink and Witherow buildings, one-story frame and stucco commercial structures, obviously are 'permanent structures' within the definition suggested by the California cases. Bertram v. Orlando, supra, 102 Cal.App.2d 506, 509, 227 P.2d 894; Rankin v. DeBare, supra, 205 Cal. 639, 641, 271 P. 1050; Tracy v. Ferrera, supra, 144 Cal.App.2d 827, 828, 301 P.2d 905; cf. Slater v. Shell Oil Co., 58 Cal.App.2d 864, 137 P.2d 713; see Spaulding v. Cameron, 38 Cal.2d 265, 267-268, 239 P.2d 625.

Relying upon Kafka v. Bozio, 191 Cal. 746, 218...