Clark v. Koesheyan

THE COURT.

This is an appeal from an order denying a motion for a new trial in an action for damages for eviction from certain premises in Fresno. The verdict in favor of the plaintiffs was rendered February 27, 1913, and judgment was rendered and entered on the same day. On March 4, 1913, the defendant applied to the court for, and was granted, a stay of execution. On March 8 defendant served a notice of motion to strike out the plaintiffs’ cost-bill “upon the papers, pleadings and records in the cause.’’ This motion was heard in open court and decided on March 17, 1913. On March 28, 1913, defendant gave notice of intention to move for a new trial. Plaintiff moved to dismiss said motion and at all times objected and now objects to the hearing of the same by the trial court or upon this appeal upon the ground that the notice of intention was not given in time, relying upon

Gardner

v.

Stare,

135 Cal. 118, [67 Pac. 5], and cases cited. We think it does not necessarily appear from this record that the defendant had such notice of th entry of

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the judgment as would satisfy the statute. This being so, we are disposed to hear and determine the case upon its merits.

The plaintiff, Mary J. Clark, joining her husband, sued for damages for eviction from certain premises leased to her by the defendant. The acts of eviction of which she complained were: 1. The cutting off of the water connections with the premises by the defendant; and, 2. The boarding up and obstruction of a certain porch and of certain windows in the rear of the premises by which the leased premises received necessary light and air over other lands of the defendant. These two acts of the defendant the plaintiff claimed and the jury found rendered the premises untenantable for use as a store or place of abode, and compelled the plaintiff to vacate the premises, thus causing an eviction. The plaintiff, Mary J. Clark, is shown to have been a married woman, but entered into this lease in her own name, and conducted the business of a store on the premises apparently as her own business.

The appellant contends that the facts above relied upon by the plaintiff were not sufficient to constitute an eviction, but with this contention we cannot agree. As to the water, we think that the fact that the water-pipes and the water service were in place and in use in connection with the premises at the time of the lease made them an appurtenant to the premises, to the continued use of which the plaintiff was beneficially entitled during her term without charge or cost to her in the absence of a provision to the contrary in the lease. (1 Underhill’s Taylor on Landlord and Tenant, p. 427, sec. 284;