Petersen v. Friedman

KAUFMAN, P. J.

The parties are owners of adjacent parcels of improved real estate situated on Franklin Street in San Francisco. Plaintiff’s complaint sought to perpetually enjoin the defendants from violating an express easement of light, air and unobstructed view created in favor of plaintiff’s property and to compel the defendants to remove certain television aerials and antennae. The trial court found all of the- allegations of the complaint to be true, rendered judgment for the plaintiff, and issued both injunctions requested. Defendants appeal.

The nature and creation of the easement appurtenant to plaintiff’s'property is not in dispute. On November 6, 1942, Mary Petersen, now deceased, also known as Mrs. Chris Petersen,.by a grant deed duly recorded conveyed a part of her property on Franklin Street to C. A. Petersen. The deed contained the followed reservation of an easement:

“Reserving, however,. unto the first party, her successors and assigns,, as and for an appurtenance to the real property ‘hereinafter1 particularly described and designated as ‘Parcel A’ and any part thereof, a

perpetual easement

of1

right to receive light, air and unobstructed view over that portion of

[247]

the real property hereinabove

described, to the" extent that said light, air and view will be received and enjoyed by limiting any structure, fence, trees or shrubs upon said property hereinabove described or any part thereof, to a height

not

extending above a horizontal plane

28

feet above the level of the sidewalk of Franklin Street as the sidewalk level now exists at the junction of the southern and western boundary lines of the property hereinabove described. Any obstruction of such view above said horizontal plane except by a peaked gable roof extending the entire width of the front of the building referred to herein and extending 9 feet in an easterly direction from a point 1 foot 6 inches east of Franklin Street, the height of said peaked roof being 3 feet 2 inches together with spindles 3 feet in height on the peak of said roof, and except the necessary number of flues or vents constructed of galvanized iron and/or terra cotta not over 4 feet in height, shall be considered an unauthorized interference with such right or easement and shall be removed upon demand at the expense of second party, and his successors and assigns in the ownership of that real property described or any part thereof. ’ ’