Hollander v. Denton

GRIFFIN, J.

Action for damages for the lowering of the grade of a street.

Plaintiff was the owner of the beneficial interest in four lots in “Overlook Heights” in San Diego. These lots border on a public street known as Dorcas Street (formerly Elenor Street) which furnishes access to plaintiff’s property. The complaint alleges that defendant, on June 20, 1941, without legal authority, and without plaintiff’s consent, negligently lowered, approximately two feet, the curb and street grade and destroyed the pavement and concrete curb of Dorcas Street in front of said lots, to plaintiff’s damage in the sum of $3,000.

On February 5, 1940, defendant acquired 10.92 acres of land for subdivision purposes opposite Overlook Heights. Plaintiff had done certain improvements to the streets in Overlook Heights addition and was selling lots in that tract. On April 9, 1940, the City Council of San Diego adopted a resolution approving defendant’s proposed subdivision “Dorcas Knoll. ’ ’ Defendant applied to the City Planning Commission for permission to lower the grade of Dorcas Street. Plaintiff was notified of a hearing on the matter and not only mailed a protest thereto but was present and objected to such proceedings.

Defendant answered plaintiff’s complaint, denied generally the allegations thereof and by way of defense alleged that on

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June 18, 1940, the city council passed Ordinance No. 1873, New Series, establishing the grade of Dorcas Street; that on August 20, 1940, the city council, by Resolution No. 72059, granted permission to defendant to grade a portion of that street by private contract at his own expense to the official grade in accordance with a plat prepared by the city engineer ; that on April 16, 1941, defendant was notified to complete the improvement by May 15, 1941; that pursuant thereto, defendant employed a contractor to do the work and bring the grade of Dorcas Street to the grade required by the ordinance; that said work was done in a workmanlike manner and in accordance with the grade and plans specified and adopted by the city council, and with the consent and approval of plaintiff.

The trial court found generally in accordance with the defense interposed by defendant; that no official grade had been established for Dorcas Street prior to June 18, 1940; that on that date the official grade was established by the city council by Ordinance No. 1873, New Series; that defendant did the work in accordance with the plans and specifications prepared by the city engineer under the supervision of the Department of Public Works; that on completion it was accepted by the city; that the amount involved in grading said street was less than $1,000; that in grading the street a section of the concrete curb, which was not on the grade, was removed and certain gas and water pipes which were not in service were removed; that the natural elevation of said street where it abuts plaintiff’s lots was lowered approximately two feet. Judgment went for defendant and plaintiff appealed.