Tracy v. Ferrera

DRAPER, J. pro tem.

*

Defendants’ demurrer to the fourth amended complaint was sustained without leave to amend, and their motion for judgment on the pleadings was granted. Plaintiffs appeal from the resulting judgment.

Appellants and respondents own homes on adjoining city-lots. Appellants’ first cause of action alleges that between April 1 and July 31, 1950, while appellants were absent, respondents erected walls, foundations, pipes and vents upon appellants’ property. This cause of action clearly is in trespass. The original complaint was filed November 3, 1953. The demurrer specified Code of Civil Procedure, section 338, subdivision 2, as one of its grounds. That section fixes three years as the statute of limitations for such an action. Where encroachments of a permanent nature are erected upon one’s land, the remedy is by an action in trespass for all damages suffered, past as well as prospective, and the entire cause of action accrues when the trespass occurs.

(Bertram

v.

Orlando,

102 Cal.App.2d 506 [227 P.2d 894, 24 A.L.R.2d 899].) The demurrer upon the ground of the statute of limitations was therefore properly sustained as to the first count.

The three remaining counts of the complaint, however, are based upon different allegations. In these, appellants allege that, within three years last past, respondents, upon their own land, maintained their premises without proper gutters or drainage, so as to deflect rain water from respondents’ premises upon those of appellants, and also so maintained pipes and furnaces as to cause the emission of noxious odors and fumes upon appellants’ property. Here there is no allegation of trespass. Rather, the offending structures are alleged to be upon respondents’ land, and complaint is made, not of their location, but of the use to which they are put. Clearly these counts allege the maintainance of a nuisance by respondents.

(Dauberman

v.

Grant,

[829]

198 Cal. 586 [246 P. 319, 48 A.L.R. 1244];