Daniels v. McPhail

WARD, J.

The gist of this action appears in the following paragraph of the complaint: “That in the months of February and March, 1947, defendants wrongfully allowed land of theirs to slide and fall onto the land and improvements of plaintiffs, without plaintiffs’ consent and against the wish of plaintiffs, thereby causing damage to plaintiffs’ land and improvements in the amount of Three Thousand Two Hundred Twenty-Two and 36/100 ($3,222.36) Dollars.” Defendants McPhail answered and cross-complained. The answer admits the sliding of the land, sets up contributory negligence, assumption of risk, an act of God and plaintiffs’ failure to support defendants’ property. In the cross-complaint defendants demanded that their land be provided with lateral support and alleged that under present conditions defendants’ lands are unusable for residential or commercial purposes and damaged and diminished in market value to the extent and in the amount of the cost of a retaining wall, to wit, $5,000.

After the presentation of evidence each side made a motion for a directed verdict. By order of the court the jury returned a verdict in favor of defendants and against plaintiffs on the issues raised by the complaint and answer, and in favor of plaintiffs and cross-defendants and against the cross-complainants on the issues raised by the cross-complaint and the answer thereto. The appeal is by the plaintiffs from the judgment entered after the verdict. The defendants and cross-complainants do not appeal.

The evidence shows that defendants were the owners of about 18 acres of hillside land in the city of San Ráfael. Defendants had excavated a rectangular lot fronting 105 feet on Fourth Street and having a depth of approximately 150 feet, so that the 105-foot frontage was leveled with Fourth Street. The excavations had been made covering a period of 25 years and the rock and dirt used as base material for roads. In December of 1945, the owners made a further excavation in the rear or north end of the lot, leaving

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a sloping cut with a face of approximately 40 feet from top to bottom. ■ In the early fall of 1946, Charles Daniels and John McPhail met at the site of the property to determine if the 150-foot lot “was level.” It seemed to be mutually agreed that “the bank was O. K.” (referring to the slope or bluff). In September, 1946, defendants sold the excavated parcel or lower lot to plaintiffs. Consideration for the sale was paid and' title in fee vested in plaintiffs. Defendants retained title to the unexcavated or upper land. Plaintiffs built a concrete storehouse, approximately 102 by 147 feet, on their lot near the bottom of the slope. In February, 1947, about 250 cubic yards of rock and dirt slid out from the bank causing a gap in the slope about 30 feet wide. An additional slide from the same bank occurred in March, 1947.