Bertram v. Orlando

DOOLING, J.

Plaintiff and defendants are the owners of adjoining parcels of land. At least 20 years before the trial of this action defendants’ predecessors in interest placed upon their land three wooden buildings set upon concrete piers parts of which extend across the common boundary line and occupy a portion of the surface of plaintiff’s land. Plaintiff commenced an action for a mandatory injunction

[507]

and damages and from a judgment granting plaintiff such relief defendants appeal. The primary question presented on appeal is whether the action falls within the statute of limitations, Code of Civil Procedure, section 338, subdivision 2, which bars after three years: “An action for trespass upon or injury to real property.”

Defendants rely upon

Rankin

v.

De Bare,

205 Cal. 639 [271 P. 1050], which we have concluded is controlling. In that case an action was brought to compel the removal from plaintiff’s premises of an encroachment of a building belonging to defendant, one wall of which rested upon a strip of plaintiff’s land, and for damages. The court said at page 641:

‘ ‘ The record shows that the injury or trespass is permanent in character. Where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is suffered or the trespass committed. (Citing cases.) The trespass was committed ... on or about May 1, 1917. Three years expired on May 1, 1920, and as this action was not commenced until January 5, 1923, the cause of action was barred.”

Plaintiff relies on

Kafka

v.

Bozio,

191 Cal. 746 [218 P. 753, 29 A.L.R. 833], That was not a case where an adjoining building encroached upon the surface of plaintiff’s land, but an encroachment by progressive leaning of the wall of the building above the surface. The court in that case draws the distinction clearly at pages 750-751: