Baglione v. Leue

SCHOTTKY, J.

Peter Baglione and Marie Baglione appeal from a judgment denying them a mandatory injunction to compel respondents to remove eaves on respondents’ building which encroach on appellants’ land.

Appellants and respondents own adjoining parcels of real property near Stateline in El Dorado County. The land owned by respondents is improved with a building which was erected in 1946 by predecessors in interest of respondents. This building is 18 feet in height, 28 feet wide, and 52 feet long. The exterior walls are constructed of pumice stone brick reinforced with steel and concrete. The eaves of the building are about 20 feet from the ground. As constructed, this building lies parallel to and within several inches of the boundary line of the two properties. The eaves on the side adjacent to appellants ’ property overhang their property 1.21

[733]

feet at the front corner of the building and 1.04 feet at the rear corner. No part of the wall encroaches on the appellants’ property.

The former owners of respondents’ property who constructed the building believed that the wall adjacent to the boundary line was constructed some 5 feet from the boundary. At the time they purchased the property there were monuments existing on the ground which were pointed out to them as designating the common boundary.

In 1954 appellants had a survey made and the encroachment was then discovered. Thereafter they brought an action for equitable relief. They sought a mandatory injunction to compel respondents to remove the encroachment, rents for the use and occupation of the property, and, as an alternative to the injunction, damages in the amount of $5,000.

At the trial the evidence disclosed that appellants’ property is improved with a home which is located some 50 feet from the boundary line. It was also disclosed that in order to properly eliminate the overhang without damage to respondents’ building would require extensive rebuilding which would cost about $3,500.

The court refused the injunction, granted an easement to respondents upon appellants’ land to the extent of the encroachment during such time as the building remains on the land, ordered payment of $300 to appellants for the easement granted, and awarded appellants $30 damages.