Woods v. Johnson

• Citation: 50 Cal.Rptr. 515,241 Cal.App.2d 278
• Court: California Court of Appeals
• Decision Date: 31 March 1966
• Parties: Francis N. WOODS and Dorothy Bell Woods, his wife, Plaintiffs, Cross-Defendants and Appellants, v. Milton A. JOHNSON and Elvera V. Johnson, his wife, and Henry Johnson, a single man, Defendants, Cross-Complainants and Respondents. Civ. 22672.

Page 515

50 Cal.Rptr. 515

241 Cal.App.2d 278

Francis N. WOODS and Dorothy Bell Woods, his wife, Plaintiffs, Cross-Defendants and Appellants, v. Milton A. JOHNSON and Elvera V. Johnson, his wife, and Henry Johnson, a single man, Defendants, Cross-Complainants and Respondents.

Civ. 22672.

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

March 31, 1966.

Crump, Bruchler & Crump, Lakeport, for appellants.

Phil N. Crawford, Lakeport, for respondents.

DEVINE, Justice.

Appellants appeal from a judgment denying them an injunction and awarding respondents, as cross-complainants, damages both compensatory and exemplary for the commission of a nuisance. The nuisance charged in the cross-complaint is that of directing offensively loud noise, by means of loud-speakers, towards respondents' home and property. The evidence clearly sustains judgment on the cross-complaint. According to the evidence, appellant husband had announced his intention to blast respondents off their property by the noise. His statement that what he had said was but jest was rejected by the trial judge, as appears from the award.

The appeal from the judgment denying injunction is based on these propositions: (1) the boundary between a private owner's property and the state's at the shore of a navigable lake (Clear Lake) is at low water mark; (2) respondents have built a fill which extends beyond the low water mark; (3) appellants are specially injured; they are the owners of parcels at each side of respondents' land.

We affirm the judgment on our conclusion upon the third of these propositions.

Appellants' Property

A description of appellants' property and its uses is first in order, because, as is held in authorities cited below, appellants had the burden, in the trial court, of showing substantial injury in order to entitle them to injunction; and, of course, on appeal their burden is weightier by reason of applicable principles which need no citation of authority. Appellants own a large parcel of land on the south shore of Clear Lake, on which there is a summer resort. They own a home, too, on the lake, the two properties being separated by respondents' parcel. The shoreline of the resort property consists of a fill for a length of about 600 feet. The fill is similar to that used by respondents. Appellants' fill ends with a wall of rock on the lake front just as does the fill of which appellants complain. There is one place on the filled shoreline of the resort parcel where descent to the lake is possible without the need for clambering down the steep and rocky wall, that is, a boat ramp at the end of the resort parcel adjacent to respondents' property. There are piers and floats into the lake opposite the resort parcel. There is a pier projecting into the lake from appellants' home parcel. No beach exists along the resort parcel because of the fill and its rocky retaining wall. Nor, it would appear from the photographs, is there a particularly usable beach on the home parcel owned by appellants. Landward of the small becah, there is a stone wall on this parcel.

Respondents' Property

The fill which respondents have constructed extends some three feet into the bed of the lake beyond the ramp on appellants' resort property, but, because of the curvature of the shoreline, it extends about 15 feet into the lake bed beyond the margin of appellants' home property. The judge found that respondents on not intend to extend the fill; wherefore, injunction to prevent expansion is unnecessary.

The Law

Admittedly, respondents' fill does not encroach on lands of appellants, nor does it lie upon land directly lakeward to appellants' property, as in San Francisco Savings Union v. R.G.R. Petroleum Co., 144 Cal. 134, 77 P. 823, 66 L.R.A. 242. If it does encroach on property of the state, it constitutes a purpresture (the word is derived from the French 'pourpris,' meaning an enclosure). It may amount to a particular kind of nuisance. (People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 146, 4 P. 1152.) A purpresture belongs to the state. (Yokohama Specie Bank v. Higashi, 56 Cal.App.2d 709, 133 P.2d 487.) The People, acting by the Attorney General or a district attorney, may take action against a purpresture when it constitutes a nuisance. (People v. Gold Run Ditch & Mining Co., supra, 66 Cal. p. 152, 4 P. 1152; People ex rel. Teschemacher v. Davidson 30 Cal. 379, 390.) The state, acting by the State Lands Commission, may allow a littoral owner to wharf out on payment of fees, or may proceed in ejectment against one who trespasses on submerged lands without permit. (23 Cal.Ops.Atty.Gen. 306; Pub.Resources Code, §§ 6301, 6302; see Dana v. Jackson Street Wharf Co., 31 Cal. 118, 120.)

But what right has an adjacent property owner to injunction against a purpresture upon the state's land? If it amounts to a nuisance, he may have injunction, but he must show special injury to himself. (Civ.Code, § 3493.) This general rule applies to obstructions to navigation. (Blanc v. Klumpke, 29 Cal. 156; Shirley v. Bishop, 67 Cal. 543, 8 P. 82; San Francisco Savings Union v. R.G.R. Petroleum Co., supra.) Proof of substantial injury, actual or potential, is required. (36 Cal.Jur.2d, § 54, p. 528.)

Asserted Special Injury

Appellants assert two kinds of special injury: (1) to their right to navigation; (2) to use of that part of the lake which has been filled, for...