Strodel v. Wilcox

NOURSE (Paul), J. pro tern.

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Plaintiff sought by his complaint in this action a mandatory injunction compelling the defendants to remove a flashing which was attached to defendants’ property, but extended over the plaintiff’s property. He appeals from the judgment denying this relief.

[783]

The following facts are established by the evidence without conflict: The parties were owners of contiguous lots fronting on the southerly line of Bast Whittier Boulevard in the city of Los Angeles, defendants’ property lying to the east of plaintiff’s. Plaintiff erected a building on his property the easterly portion of which was one story in height. His easterly wall was set back approximately 2 inches from the common boundary line, but its foundation encroached some distance on defendants’ property. This encroachment, however, was several feet below the surface of the ground. Thereafter defendants erected a one-story building on their lot and the westerly wall of this building was set back from-the common boundary line, thus leaving a space between the easterly wall of plaintiff’s building and the westerly wall of defendants’ building of about 4 inches. Defendants’ foundation encroached on plaintiff’s property a distance of 2 inches at the surface of the ground. Defendants acknowledged that this was an intentional encroachment. Plaintiff, however, waived any right to an injunction as to this encroachment and we are not concerned with it here. At the northerly and southerly ends of this narrow areaway the defendants, with the consent of plaintiff, constructed what in the record are termed seals, these being thin plaster walls which join the easterly wall of plaintiff’s building and the westerly wall of defendants’ building. The result was that the narrow areaway was enclosed at the bottom by a concrete slab, on the sides by the walls of the respective buildings, and on the ends by the seals.

Defendants’ building was erected by a contractor and under a flat price contract. During the construction and in order to secure the approval of the building inspector the contractor attached to the westerly wall of defendants ’ building a metal flashing. This extended the entire length of the wall and was attached to defendants’ building at a point some inches above the level of the coping of the easterly wall of plaintiff’s building and extended downward so as to overlap by about 2 inches plaintiff’s wall and allow rain which might fall upon the low fire wall of defendants’ building and upon the flashing to drain onto plaintiff’s tar and gravel roof and to flow from there into a down spout which defendants had provided to carry off the water that fell on the roof of the one-story portion of his building as well as that which fell upon the roof of its second story.