Fischer v. Hendler

NOURSE, P. J.

Defendant appeals from a judgment declaring plaintiffs to he the owners of an easement created by implied grant, enjoining her from interfering with the use of the easement and awarding damages in favor of plaintiffs in the sum of $165 plus costs.

The facts of the case are undisputed and appear from the stipulation to be as follows: In July, 1932, defendant owned two adjoining parcels of real property situated in the city of Los Angeles and designated as lots 18 and 19 of block “K” of the Forest Heights Tract. She constructed a four-unit dwelling on lot 18 and a four car garage at the rear of the same lot. The remainder of the backyard was graded and cemented in such a way that it sloped down toward a small opening in a cement curb and wooden fence which had been erected on the boundary line between the two pieces of property ; the yard was constructed by defendant in this manner so that rain and excess surface waters would flow from lot 18 onto lot 19. In March, 1937, defendant sold lot 18, together

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with the improvements thereon, to a purchaser who immediately transferred the property to plaintiffs. At all times during the aforementioned conveyances the cement surface of the backyard of lot 18 and the hole in the curb remained open and visible. For the succeeding two and one-half years defendant allowed the surface waters from lot 18 to drain through the opening onto lot 19 which she had retained, but in September, 1939, defendant closed the opening in the curb thus preventing the passage of water from plaintiffs’ property onto her lot. This action caused the surface waters to flood the four car garage and fence on lot 18. Plaintiffs thereafter opened the hole in the cement curb, and at various intervals between September, 1939, and February, 1941, the parties were engaged in reclosing and reopening the hole. Finally-in the latter month plaintiffs instituted the present action for an injunction and for damages in the sum of $300. The court decreed that plaintiffs were the owners of an easement created by implied grant for the passage of all surface waters through the opening. The judgment entered in favor of plaintiffs restrained defendant from obstructing or closing the opening in the curb, ordered her to open the passageway and to permit the passage of surface waters from lot 18 onto lot 19 and awarded plaintiffs damages in the sum of $165 plus costs. Defendant appeals from the judgment.