Rothaermel v. Amerige

JAMES, J.

Judgment was entered in this action as prayed for by the plaintiff,' except as to the amount of certain damages, and defendant has appealed.

Plaintiff is the owner of a parcel of land located in the city of Fullerton, county of Orange. Upon this land there was erected by the predecessor in interest of the plaintiff a two-story brick building. The south wall of this building was placed within about two inches of the line dividing the property of plaintiff’s predecessor from that of the adjoining land owner, title to which latter land was afterward acquired by the defendant. At the time of the erection of the building referred to there were no building improvements upon the adjoining property. Defendant’s grantor in turn caused to be erected a brick wall along the dividing line between the two properties, up to a height

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of one story, this wall becoming a part of a building thereon constructed. The surface of the latter wall seems not to have intruded upon the property later acquired by the plaintiff, but the contention was made by plaintiff’s predecessor in interest that the foundation footings of the wall did extend over and on to the latter’s property to the extent of two inches. As a result of this contention an action was brought in March, 1916, by plaintiff’s predecessor against the defendant here. The action was in form one of ejectment, the complaint containing appropriate allegations as to ownership and _ the trespass of the defendant. Writ of restitution and damages in the sum of five hundred dollars were prayed for. The court, after trial,' entered judgment, wherein it was determined that defendant had and held possession of the “south one and one-half inches of said real property in plaintiff’s complaint described.’.’ The court in that action further found that “the plaintiff is not damaged by the foundation of defendant’s building extending one and one-half inches upon the plaintiff’s property hereinbefore described, and up to plaintiff’s foundation wall.” The judgment was one appropriate to an action of ejectment in that it directed that the defendant “vacate and restore to the possession of said plaintiff the south one and one-half inches of that certain lot,” describing the parcel, and further directed that “writ of assistance” be issued to restore to the plaintiff the possession of the property without further proceedings. After plaintiff’s predecessor had secured the judgment and all of the relief that she had asked for, except that she was found to have sustained no loss in damages, she seems to have been in a quandary as to what should be done to make effectual the right secured. As only the foundation footings of defendant’s building protruded on to the land of plaintiff to the extent of the one and one-half inches, and as the two brick walls existed there, separated only by a space of about the same width, it was plainly impossible to have the footings removed without taking down one or the other of the walls. A writ of assistance or for possession, as the same is termed in section 380 of the Code of Civil Procedure, would not have authorized the sheriff to molest defendant’s wall, other than to remove the footings. After the entry of that judgment