Clough v. W. H. Healy Co.

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KERRIGAN, J.

This is an action to quiet title and for a mandatory injunction restraining interference with an easement. Judgment went for the defendant, from which plaintiff prosecutes this appeal.

F. Dudley Tait owned a parcel of land at the southeast corner of Hyde and Francisco Streets, in San Francisco, having a frontage on each of the streets named of ninety-seven and one-half feet. On the seventh day of May, 1914, Tait sold to the plaintiff the easterly thirty-five feet on Francisco Street, and granted to him in the same deed as an appurtenance to the lot sold an easement of light, air, and right of way three feet wide across the sixty-two and one-half feet of the lot retained by Tait at the extreme rear thereof. The entire lot at that time was unimproved and in its natural condition, and the easterly end of the three-foot strip where it connected with the parcel conveyed to Clough was approximately six or seven feet higher in elevation than the sidewalk on Hyde Street. In the month of December, 1914, and during Clough’s absence from San Francisco, and without his knowledge or consent Tait, in connection with the construction of a residence upon the portion of the lot retained by him, excavated it in its entirety, including the three-foot strip, and paved with concrete all of his lot up to said strip, so that the backyard of Tait was several feet lower than' the adjacent land in the rear, and Tait accordingly constructed a concrete retaining wall on the rear fourteen inches of the three-foot strip, and at the same time constructed at the extreme western end of said strip a concrete retaining wall, leaving therein, however, an arched gateway about three feet wide, and did also construct and erect across said gateway upon said strip an iron gate. Immediately upon discovering the changes thus made, and in January, 1915, Clough demanded that Tait remove the obstructions from the three-foot strip and restore it to its original condition. Thereafter in September, 1915, Clough and Tait entered into a written agreement, which was recorded and which, after reciting the facts as above stated, provided that Tait was to be permitted to maintain said obstruction upon condition that Tait should not permit certain trees and shrubbery which he had planted upon said strip to grow, to such height as to interfere with Clough’s

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