Dandoy v. Oswald Bros. Paving Co.

CONREY, P. J.

The plaintiff was the owner of two lots which together included an area of a little over one acre of land. The defendant, while performing a street work contract on a street not far from the plaintiff’s premises, dumped upon plaintiff’s land and spread out over said land a large quantity of materials which accumulated in the course of performance of the street work. This was done while the plaintiff was absent from the state of California, and was done without the consent or knowledge of the plaintiff. In the complaint filed by the plaintiff in this action against appellant and other defendants it was alleged that the defendants without authority, permission

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or consent of the plaintiff placed upon said real property large quantities of macadam, crushed rock, gravel and other similar materials amounting to approximately 31,000 cubic feet thereof; that prior to said acts of said defendants said land was composed of fertile soil well suited to farming purposes, but that by the placing of said materials thereon by said defendants the value of the land for farming purposes had been completely destroyed,' to plaintiff’s damage in the sum of $1710. The answer of defendant George H. Oswald denied that the defendant placed or caused to be placed upon said real property any quantity whatsoever of macadam, crushed rock, gravel and other similar materials ; denied that prior to the alleged acts of defendant said land was composed of fertile soil of good quality; denied that since the placing of said materials upon said real property by defendant the value of the property for farming purposes has been completely destroyed; denied that its value for any other purposes has been greatly impaired, “and alleges that if any soil or other materials whatsoever were placed upon said described property that it increased the value of said described real property”. As to the other defendants the action was dismissed.

At the beginning of" the trial and in accordance with stipulations the parties, together with their counsel and the court, inspected the plaintiff’s land and caused a number of holes to be dug on the property to a depth of about eighteen inches. Thereafter the trial- proceeded and at its conclusion the court made findings wherein, among other things, it was determined that the defendant did not place or cause to be placed upon said real property any quantity whatsoever “of macadam and/or crushed rock and/or gravel and/or other similar materials; that plaintiff’s land has not been depreciated for farming purposes; that the value of said land has not been greatly impaired and/or reduced”, and finds that the value of said real property has been increased.