Lindberg v. Linder

DESMOND, J.,

pro

tem.

Plaintiffs were awarded judgment in the sum of $500 by reason of defendants storing lumber, machinery and rubbish upon a lot which plaintiffs owned in San Pedro. Defendants appeal, specifying as error the trial court’s refusal to grant a motion for a non-suit and also its refusal to grant a new trial. The ease comes before us on a bill of exceptions from which it appears that defendants early in 1923 began to use the real property of the plaintiffs, a lot 150' feet by 74 feet on Seventh

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Street, one of the principal thoroughfares of San Pedro, for the purpose of placing a variety of materials upon it. This- lot was in close proximity to another lot used, with the permission of its owner, by the defendants for the same purpose. The two lots were separated by a street which was not improved, and so was not apparent. One of the witnesses produced by plaintiffs testified that he had bought a load of lumber from the defendants, and that it was delivered to him from the plaintiffs’ lot where a carload of it was stored. There was a denial by the defendants that they had used the plaintiffs’ lot without permission, it being contended that such use as was made of the lot was with the consent and knowledge of the plaintiffs, before this suit was started in 1929. There was testimony, however, that plaintiffs had requested defendants, one or the other, occasionally to clear the land. It may be noted also that at one point Mrs. Linder, one of the defendants, testified that she had at no time received permission to use plaintiffs’ land. A witness for plaintiffs testified also that Mrs. Linder admitted to him that plaintiff O. 0. Lindberg had requested her several times to remove the materials from his lot.

A realtor called as witness by defendants, testified that plaintiffs’ property was zoned for residential purposes and that it had no value for industrial purposes. He did not testify as to the fair rental value of the land, if any, for residential purposes, but did say that a lot across the street from plaintiffs’ property 50 feet by 125 feet on Seventh Street which is in an industrial zone, had a rental value of $120 per year. It will be noted that while plaintiffs’ property is only 74 feet deep it has a frontage on Seventh Street three times as long as the other lot just mentioned. A realtor produced by plaintiffs testified that the reasonable rental value of the Lindberg lot from 1923 to 1929 was from $25 to $30 per month. There was conflicting testimony as to what portion of plaintiffs’ lot was used by defendants, one of plaintiffs’ witnesses describing it as an area 100 feet square, Mrs. Linder, on the other hand, stating that only the extreme end of the lot was used. George Lindberg, one of the plaintiffs, testified that they had been deprived of the use of their lot by the use which defendants made of it.