Keating v. Basich Bros. Construction Co.

MARKS, J.

This is an appeal from a judgment awarding plaintiff $1,915 for damages for the unauthorized use of property which plaintiff held under lease.

A rehearing was granted in this case to permit us to íeconsider the evidence as to the amount of damages awarded

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to plaintiff which was very liberal under all of the circumstances. It is urged that the testimony of James A. Pascoe, upon which the amount of the award must rest, is weak and so uncertain that it should not be held sufficient to support the judgment.

The testimony of Pascoe is not all that could be desired and is not too certain. However, the construction to be placed upon it was a duty to be performed by the trial court in the first instance. As we cannot say that the construction placed upon it is unreasonable we must hold that this evidence supports the judgment. We therefore conclude that the judgment must be affirmed.

The property involved was something more than one-half of a section of unimproved desert land (except improvements placed thereon by Basich Brothers, defendant’s predecessor) lying along the Mexican border. Plaintiff’s lessor held the property under a desert location and had leased it to plaintiff for $50 a year.

Basich Brother Construction Company is a corporation organized under the laws of California and was engaged in the contracting business. In about 1932, due to differences among its stockholders, it ceased active business and became inactive. Its physical assets were taken over by Basich Brothers, a partnership, which continued its former operations. The corporation became active again early in 1943, and took back the physical assets of the partnership.

In 1942 the partnership entered into a contract for the construction of a Marine Corps base at El Centro, California. In performing this contract, which was completed early in 1943, it went into possession of and used the property involved here without the consent of plaintiff or his lessor.

After the completion of the Marine base the partnership entered into a contract with the Highway Department of the State to improve highways. The use of the land, of which plaintiff was the lessee during the performance of this contract, gives rise to this action. A road had been constructed across the property and two cement mixing plants, bunkers and bins, and what was called in the record, a “black top plant,” other structures, and heavy road building machinery were on the property during the performance of this contract.