Farrington v. A. Teichert & Son, Inc.

KNIGHT, J.

Plaintiff brought this action against the defendant A. Teichert & Son, Inc., the city of Los Angeles, and the Department of Water and Power of said city, to recover damages for the alleged conversion of rock, sand and gravel removed from plaintiff’s land. The city did not appear; and the demurrer of the Department of Water and Power was sustained without leave to amend; thereupon judgment was entered in its favor. The action against the defendant A. Teichert & Son, Inc., was tried before the court sitting without a jury, and the court held that the taking of the material was not tortious, but was with plaintiff’s consent, acquiescence, ratification, approval and confirmation ; and that accordingly plaintiff was entitled upon a quantum meruit to receive the reasonable market value of the rock, sand and gravel removed, which the court found to be

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cents a cubic yard for 39,701 cubic yards, and gave judgment for $1389.54. Plaintiff appeals from the judgment so rendered. The measure of damages in actions for tort such as conversion or trespass is greater than the measure of damages allowed upon a quantum meruit arising out of a contractual relationship, express or implied, and the principal question involved on this appeal is whether the trial court’s conclusion that there was no conversion is supported by the evidence.

[471]

The essential facts stated in chronological sequence are these: In March, 1940, respondent, a contracting firm, was negotiating with the city of Los Angeles for a contract to construct a conduit from Leevining Creek to Grant Lake Reservoir in Mono County, and in this connection the superintendent of the firm visited the site of the proposed construction and discussed the same with the city’s engineers. In the course of this examination, since rock, sand and gravel were required in the proposed construction, respondent and the city’s engineers examined the gravel pits from which the city’s specifications proposed that such rock, sand and gravel should be obtained. The city owned a great deal of the land in and around that locality; the gravel pits were shown on a blueprint attached to the contract specifications; and at the time of the inspection the city’s resident engineer verified the pits being inspected as the ones shown upon the blueprint, and advised respondent that all of the land belonged to the city and that all of the gravel therefrom was free. Subsequently respondent was awarded a contract for the construction. Preliminary work was started in May, principally by the construction of respondent’s plants for screening and processing rock, sand and gravel. All of these structures and a substantial portion of respondent’s gravel pit were in fact on the city’s land.. In June there was a small operation from the gravel pit, and in July operations therefrom commenced in quantity. But in June, before respondent had started any substantial production from the gravel pit, appellant observed the location of the pit and plants, and thought the pit might be on his property. He continued to visit the site of the pit some seven or eight times, examining the pit, cheeking locations and noting respondent’s operations and removal of rock, sand and gravel, but did not during that time indicate to respondent that the gravel pit might be partially upon his land. On September 11th he notified the city of Los Angeles that the respondent was on his land; but the first conversation of any sort between appellant and respondent occurred on September 16, 1940, at which time appellant called at respondent’s office and told the superintendent that he considered that a portion of the gravel pit was on his land. There was some discussion on the point, during which they scaled a map produced by appellant in an effort to locate boundary lines. The whole area involved is