Lusk v. Krejci

SHOEMAKER, J.

In this action plaintiffs Lusk sought a mandatory injunction directing defendants Krejci to remove an encroachment from their property. From the judgment directing removal defendants appeal.

There is no dispute as to the physical facts. The parties own adjacent lots located on Terrace Drive in Los Altos. The respondents’ ownership has existed since 1952, the appellants’ since 1957. In August of 1954 respondents had a contractor build a concrete block wall; the wall is entirely upon respondents’ property, running from front to rear for a distance of approximately 100 feet, along the boundary line for the first 25 feet from the front of their lot, then gradually tapering away from the boundary. At the time of this construction appellants’ property was unoccupied, although built upon.

In the fall of 1954, soon after the wall was built, Vassar purchased what is now appellants’ property. The Vassars built a rock wall across the back portion of their lot, perpendicular to respondents’ wall, and then added dirt fill, leveling the entire rear area of their lot. The leveled dirt, which is several feet high, encroaches on respondents’ lot, and is the subject of this litigation. Witnesses for appellants testified that respondent assisted Mr. Vassar placing dirt on the latter’s land. Mr. Vassar’s deposition, which was introduced into evi

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dence, contained statements to the effect that Lusk had consented to the fill, and had assisted him in putting dirt on his property for fill. In this respect Lusk testified that as a neighborly gesture he assisted Vassar level some piles of dirt near the latter’s back porch which interfered with access on the property, and that he leveled some dirt for Vassar near the front of the wall which was entirely upon Vassar’s property. He denied that he assisted Vassar with any other work in leveling the yard. Lusk further testified that he was not present when the first dirt was leveled, but that he protested at all other stages in the work, and he stated that he never consented to placing fill on his property next to his wall, and that the raised level of the encroaching area caused water to leak through his wall onto his property. An expert testified for respondent to the effect that the latter’s wall could not hold back all the fill, and that it would eventually tumble if the present condition continued. He also stated that it would cost between $50 and $100 to remove the dirt which constitutes the encroachment, as opposed to $500 to construct a wall to hold back the fill.