Wharam v. Investment Underwriters Inc.

DRAPEAU, J. pro tem.

The plaintiff and defendant Investment Underwriters, Ine., were owners of lots in the city of Los Angeles, with a common boundary line at the rear of each lot. These lots are located in a block bounded on the north by Second Street, on the south by Third Street, on the west by South Rampart Street, and on the east by South Coronado Street. Plaintiff’s lot fronts west on South Coronado Street, defendant’s lot fronts east on South Rampart Street. The common boundary at the back of each lot is approximately in the middle of the block. The natural slope of the land is downward from South Coronado Street to South Rampart Street.

In 1935 the plaintiff caused to be built at the rear of his lot a concrete retaining wall. In 1940 the defendant lot owner, Investment Underwriters, Inc., contracted with the defendant, California National Builders, Ine., a contracting firm, to build on the South Rampart Street lot a two-story apartment building with a garage at the rear. This necessitated excavating the rear end of defendant’s lot; which was done and the improvements built. Thereafter, and during a time of heavy rainfall, a part of the rear end of plaintiff’s lot slid down into the excavation on defendant’s lot, together with a part of the retaining wall.

In the resulting action in the superior court, plaintiff recovered judgment against both defendants for $2,500 for damages to his lot and the retaining wall. From this judgment defendants have appealed.

The trial court found, among other things, that the slide was caused by the negligence of both defendants. One witness for the plaintiff testified that in addition to excavating on the lot of defendant Investment Underwriters, Inc., the workmen of the defendant contractor climbed the bank and excavated with pick and shovel right past the property line and onto plaintiff’s property. “They went back here approximately 3 feet east of the line, or the rear of this wall, and began their cutting down the bank.” This testimony was not denied. Under familiar rules binding upon this court on appeal this testimony is sufficient to sustain the finding of

[349]

negligence, and the judgment, as against both defendants.

{Hedstrom

v.