Carey v. Bowie

SPENCE, J.

This is an appeal upon the judgment-roll alone from a judgment decreeing that defendants, within a specified time, remove to a point not less than 4 feet from the property line a certain addition to their dwelling-house

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which encroached upon the land of plaintiff and awarding judgment in favor of plaintiff in the sum of $1,000 in the event that defendants failed to remove said addition within the time allowed.

Plaintiff and defendants were adjoining property owners in San Francisco, their lots being situated in a residential tract known as Ingleside Terraces. These lots were acquired subject to certain restrictions, among which was one providing that no building or structure should “at any time be erected or stand within less than four (4) feet of the northerly exterior side line of any lot”. The addition which defendants caused to be erected not' only came within 4 feet of the northerly exterior side line of their lot, but extended over that line between 1 and 1% inches. The eaves of said addition extended over plaintiff’s property between 1 foot

3y2

inches and 1 foot

áy2

inches at a distance of approximately 10 feet from the ground.

The complaint was in three counts. The first count alleged a violation of the above-mentioned restriction; the second count alleged the encroachment on plaintiff’s lot; and the third count alleged the maintenance of a nuisance by reason of the overhanging of the eaves. The trial court found that the allegations of the complaint were true and entered judgment as above indicated. Among other things, the court found that the total cost of the removal of said addition would not exceed $125, wrhereas the damage to plaintiff’s property by reason of the maintenance thereof would be the sum of $1,000.

Appellants first contend that “the encroachment alleged is within the maxim

de minimis”

and argue that the trial court should have awarded only nominal damages and should not have ordered the removal. We find no merit in this contention. Appellants assume that the encroachment was one of only a “few inches or a foot” and that there was “no appreciable injury”. While it is true that the eaves overhung respondent’s property by only a little over 1 foot, appellants ignore their violation of the restriction prohibiting building a structure within 4 feet of the property line. Respondent had a right to insist that appellants’ structure be not built within 4 feet of said line and the invasion of that right amounted to several feet