Breyfogle v. Tighe

FINCH, P. J.

The complaint alleges that the defendants “unlawfully and with force broke into and entered upon the plaintiff’s land and premises (lot 2 in block 40 of the city of Madera) . . . and took down and removed therefrom a certain combined fence and signboard then and there standing on, being attached to, and a part of said real property from said land, and converted said fence and signboard to their own use, to the damage of said plaintiff in the sum of $250, the value of said combined fence and signboard removed as aforesaid, and to the further damage to said real property in the amount of $75.”

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The answer in effect admits the entry and removal of the property but denies that such entry and removal were unlawful. Defendant Tighe alleges “that Tighe-Breyfogle Company is now and at all times in the amended complaint mentioned it has been a corporation . . . carrying on and conducting a general mercantile business . . . and down to about the 1st day of March, 1919, plaintiff and defendant W. C. Tighe were stockholders, officers and directors of said corporation and during all of said times down to about the 26th day of March, 1919, said plaintiff and said defendant Tighe were the joint owners of the said lot 2 in block 40 aforesaid. . . . That . . . said Tighe-Breyfogle Company, for the purpose of advertising its goods, wares and merchandise, caused to be erected” the signboard “which was thereafter used exclusively for said purpose by said corporation down to the time of the removal thereof”; that about March 28, 1919, the corporation acquired from plaintiff all of the capital stock in the corporation then owned by him and that in consideration thereof the defendant Tighe conveyed his interest in said lot 2 to the plaintiff; “that at the time said deed of conveyance was delivered to said plaintiff by the said Tighe it was understood and agreed between the said parties that said corporation should have the right to maintain said signboard upon the said property aforesaid, to wit: lot 2 in block 40, so long as the same was mutually agreeable between the parties or until said plaintiff desired to make use of said property for building purposes,” the corporation to pay plaintiff a monthly rental for the right “to maintain said signboard upon said lot of land aforesaid.” The court found in accordance with the denials and averments of the answer and further, that the signboard was erected “with the express assent and consent of plaintiff herein and W. C. Tighe, the owners of said lot 2 in said block 40.” While the evidence is conflicting, it amply supports the findings. The signboard was of galvanized iron, forty-eight feet in length and, according to the various estimates of the witnesses, eight to twelve feet in height. It was placed along the edge of the lot, which had no building upon it. It served the purpose of a fence as well as that of a signboard. The plaintiff testified that it was erected primarily as a fence but made higher