Phillips v. Isham

PEEK, J.

This controversy arises out of the admitted encroachment by defendants upon plaintiffs’ property. The judgment of the trial court required defendants to pay plaintiffs the sum of $250 within 20 days and that on compliance therewith defendants would be declared to be the owners of the land in question but in the event of default in such payment that plaintiffs have judgment quieting their title, that the encroachments be removed from their property and that defendants pay to them the sum of $1.00 as damages.

Plaintiffs’ sole contention upon appeal, which appears to be well founded, is that under the facts as disclosed by the

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record the trial court erred in finding that the cost of removing the encroachments and the resultant injury and inconveniences to defendants would greatly exceed in comparison the loss and damage sustained by plaintiffs.

The facts pertinent to the question presented and which are not in dispute show that plaintiffs and defendants are the owners of adjoining lots numbered 23 and 24 respectively. The plot of the lots shows each to have a 50-foot frontage on Redwood Avenue. Taxes have been levied and paid according to the plat lines. Originally both lots were owned by the North Sacramento Land Company. Lot number 24 was sold to defendants in 1921. At the time of sale the agent of the land company pointed out to defendants the easterly boundary of the lot. Immediately thereafter defendants planted a hedge along the boundary as shown to them, and commenced the construction of a garage at the rear of the lot, likewise along the purported boundary. Mr. Isham described the garage as smaller than an ordinary one car garage, of frame construction and without a foundation. Following the completion of that structure they built their home, which was remodeled in 1923 by adding a room, a carport and the main entrance to the home. The carport which is of frame and stucco construction was not built as an integral part of the structure of the house but is merely attached thereto. Since that time the garage has been used as a shop.

When plaintiffs purchased Lot 23 in 1948 it was unimproved. They testified that although they looked at the property they did not ascertain the true boundary thereof until after plans had been drawn for the construction of two housing units, one for their own use and the other for rental. The larger of the two units was to be 40 feet wide which, together with a 5-foot setback from each side boundary required by a city ordinance, necessitated the use of the entire 50 feet. The survey disclosed that a triangular area had been carved out of their lot by