Sager v. O'Connell

NOURSE, P. J.

The plaintiffs and cross-defendants appeal from a judgment awarded respondent on the cross-complaint.

The original complaint for abatement of a nuisance and the recovery of damages therefrom was brought in the name of the individual appellant, E. N. Sager. It alleged that the plaintiff owned designated property on Ellis Street in the city and county of San Francisco, and that the defendant was the adjoining owner, upon whose premises a wooden wall or bulkhead had been erected. It further alleged that the defendant had permitted the bulkhead to become decayed and that as a consequence dirt and debris had fallen from the higher property of defendant onto the property of plaintiff, creating the damages complained of.

Upon the trial of the action, the title of plaintiff’s property was put in dispute and by stipulation the Sager Enterprise and Construction Company, a corporation, was added as party plaintiff and cross-defendant, the respondent reserving all rights to object to the pleadings to be filed thereafter.

Pursuant to this stipulation, at the conclusion of the trial, appellants then filed an amended complaint for abatement of nuisance, praying that if the bulkhead be determined to be a division fence, responden! be ordered to contribute one-half of the cost of repair, but if it be determined to be respondent’s fence, he be enjoined from maintaining a nuisance and ordered to build another fence, and for the removal of dirt and debris now on appellants’ property as a result of its having fallen through the fence, and for the recovery of damages.

Respondent answered and cross-complained contending throughout that his property was at its natural level and that appellants’ adjoining property had been excavated by a pre

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vious owner; that the bulkhead was located upon appellants’ property and had been erected by appellants’ predecessor in title for the purpose of providing lateral support to which respondent’s land was entitled. He further alleged that appellants had permitted the bulkhead to become decayed and that as a consequence dirt from respondent’s property had fallen into the excavation on appellants’ property; that if appellants failed to erect a substantial bulkhead, he would have to do so and that the cost of erecting the same would be $5,000. The entire prayer of both the original cross-complaint and the document entitled “Amended Cross-Complaint,” which in reality appears to be a supplemental cross-complaint, reads: