Castelletto v. Bendon

BISHOP, J. pro tem.

*

Plaintiffs sought by this action to have it declared that three buildings, erected upon defendants’ lot, but which stand in part on plaintiffs’ property, were a continuing trespass and nuisance there, and should be removed. Among other defenses pleaded was the statute of limitations, subdivision 2 of section 338, Code of Civil Procedure, being specifically mentioned. We find that the statute of limitations pleaded precludes any judgment in plaintiffs’ favor, and are reversing, on defendants’ appeal, the judgment awarding plaintiffs a small sum in damages and providing for the ultimate removal of the three buildings.

There is no serious dispute as to the facts. Plaintiffs’ lot and that of the defendants have a common boundary. Three wooden buildings which stand mainly on defendants’ lot, do have a toe hold over the line. They had stood in this position for at least 12 years before this action was filed, but neither the defendants nor the plaintiffs were aware of the fact of the trespass until shortly before the action was brought.

The plaintiffs ’ first argument in support of the finding that the statute of limitations had not run is an echo of this statement in the memorandum decision filed by the trial judge: “The statute of limitations would not start to run until the facts were known to the plaintiffs.” This, of course, is the rule in some situations, but we are satisfied that it is not the rule in the one under review. Section 338, Code of Civil Procedure, which prescribes three years as the time within which certain actions must be commenced, embraces in addition to subdivision 2, which covers “an action for trespass upon or injury to real property,” these three, among others: “4. An action for relief on the ground of fraud or mistake....

“5. An action upon a bond of a public official....

“6. An action against a notary public on his bond or in his official capacity. ...” With respect to each of the causes of action mentioned in subdivisions 4, 5 and 6, section 338 goes on to say that the cause of action is not to be deemed to have begun to run until discovery by the aggrieved party of the facts constituting the cause of action. The Legislature’s

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omission of a like provision with respect to the cause of action of subdivision 2 cannot be said to be unintentional, nor is that which has been omitted to be written in by the judicial branch of the government. We are satisfied that where, as in this case, the location of the buildings was quite apparent, the failure of the owner of the property upon which the buildings trespassed to know that his line ran under the buildings, affords no reason for saying that the cause of action for trespass did not begin to run until he was aware that it was his property, in part, upon which the buildings stood.