Sherman v. Associated Telephone Co.

WILSON, J.

Plaintiff is the owner and occupant of residential property in Santa Monica. Defendant has a 4-foot easement along the boundary of plaintiff’s property for the maintenance of telephone wires; it erected wires within the lines of its easement and also over plaintiff’s property outside the easement. Plaintiff brought this action for damages and recovered judgment for $1,000 from which defendant has appealed.

[807]

The complaint alleges that defendant’s wires and cables are strung along plaintiff’s property within a few feet of his bedroom window; that they are so close to the fruit trees as to affect their proper growth, and are so close to his garage as to make it impossible to rebuild according to plaintiff’s plan. The evidence sustains the foregoing allegations of the complaint but it was also proved that prior to the trial of the action all wires and cables had been brought within the lines of defendant’s easement.

The complaint further alleges that the placing of the wires on plaintiff’s property caused depreciation of its value, to his damage in the sum of $10,000. The only evidence under the allegation of general damages was that of a realtor who testified that the value of the property was less at the time of the trial than in 1946. Since the wires had been removed long prior to the trial and since there is no evidence that the value of the property depreciated between 1946 and the date of removal of the wires, such evidence does not sustain a judgment for general damages.

Judgment for $1,000 was awarded plaintiff “as reasonable rental value of defendant’s use and occupation of plaintiff’s property pursuant to section 3334 of the Civil Code.” There is no allegation in the complaint as to the reasonable value of the use and occupation of the property, no evidence was introduced as to such value and there was no finding as to the reasonable value of the use and occupation. Plaintiff notified defendant in writing to remove the wires within three days and that unless the wires were removed within three days he would charge defendant the sum of $25 per day for each day the wires remained on plaintiff’s property.

The facts in the instant action are similar to those in

Wright