City of Los Angeles v. Babcock

PLUMMER, J.

This action was instituted to obtain a mandatory injunction requiring the defendants to remove certain buildings from a right of way belonging to the City of Los Angeles, upon which it had established, and was maintaining electrical transmission lines. The defendants had judgment, and the plaintiffs appeal.

The record shows that in 1916 the plaintiff, City of Los Angeles, became the owner of a right of way 120 feet in width, for the erection and maintenance of electric light and power transmission lines; that along the center of said right of way the city had erected, and for a number of years had been maintaining such lines; that the deed conveying a right of way to the city of Los Angeles was of record in the office of the county recorder of Los Angeles; that the deed of conveyance of said right of way provided that no buildings or other structure should be erected thereon, pastura!, agricultural and mineral rights only being reserved. Subsequent to the acquiring of the easement and right of way herein mentioned the premises involved, together with other premises adjoining, were subdivided into city lots, the defendants named becoming owners of certain lots partly covered by the easement and right of way owned by the City of Los Angeles.

The judgment of the trial court was to the effect that the City of Los Angeles was estopped from demanding the removal of the buildings referred to in the plaintiff’s complaint.

Upon this appeal a number of grounds for reversal are assigned and presented to this court for consideration, only one of which, however, needs to be mentioned, to wit, that the court erred in holding that the City of Los Angeles was estopped from demanding the removal of the buildings from its right of way over lots 58, 70 and 73 of tract No. '5552, or had ever acquiesced in the erection and maintenance thereof. If this holding is erroneous, then and in that case the judgment should be reversed, irrespective of any of the other assignments. An examination of the find

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ings will determine whether the assignment of error which we have quoted is tenable. Omitting all the preliminary-matters contained in findings 1, 2, 3 and 4, relative to the City of Los Angeles being a municipal corporation and operating an electric transmission line, and the description of the right of way acquired in 1916, by the City of Los Angeles, we come to finding number 5 which sets forth that the deed of conveyance to the City of Los Angeles, for the .right of way referred to, was recorded in the office of the county recorder of Los Angeles on the twenty-sixth day of June, 1916. Finding number 6 is to the effect that ever .since the.sixth day of June, 1916, the Board of Water and Power Commissioners has maintained, and now maintains and operates over said easement, electric wires for the transmission of electric energy to the City of Los Angeles, said wires carrying, at the time of the trial, approximately 110,000 volts of electricity; that the power line now existing on said easement is along the center line thereof. Finding number 7 is to the effect that the premises referred to had been subdivided into city lots, and that the easement covers a portion of said lots. Finding number 8 is in these words: “The court finds that the maintenance, use and occupancy of said buildings and structures upon plaintiff’s easement prevent, and are a continuous and constant interference with the free, full and perfect use and enjoyment by plaintiffs of the rights and easements granted them by said deed, but that the use of said easement by the defendants has been acquiesced in by the plaintiffs since the erection of said buildings.” Finding number 9 is to the effect that the plaintiffs, prior to the beginning of the suit, had not demanded the removal of said structures. Finding number 10 is to the effect that on May 7, 1923, the defendant Lulu Wilson entered into a contract for the purchase of lot 58, and in the year 1924, erected a garage thereon, and that on July 9, 1925, the defendant Lulu Wilson became the owner of said lot 58; that a residence erected upon said lot 58 projects 7.15 feet upon the easement and right of way of the plaintiff. Finding number 11 is to the effect that Jess Chenoweth is the owner of lot 70; that the buildings on said lot were erected in the year 1924; that a certain frame building on said lot projects 9.21 feet over and upon the easement and right of way of the plaintiff. Finding number