Phipps v. Western Pacific Development Co.

JAMES, J.

In this action demurrers of defendants to the complaint of the plaintiffs were sustained. Plaintiffs declined to avail themselves of the leave given to amend, and judgment was thereafter entered against them. From that judgment appeal was taken.

Under the condition of the case as it appears from the foregoing statement, the question as to the correctness of

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the court’s ruling in sustaining the demurrers is alone presented. The demurrers presented both the general ground as to the insufficiency of the facts stated to constitute a cause of action and various particular and special grounds of uncertainty and alleged misjoinder of parties plaintiff and misjoinder of causes of action. We think that the grounds of uncertainty are those which require particular consideration. Briefly summarized, the cause of action attempted to be set forth in the complaint was one wherein the plaintiffs, as owners of lots in a tract of land which had been subdivided by the Western Pacific Development Company, defendant, asserted the right to Eave preserved the lots in the dimensions originally platted and to have left the streets and ways in the same position and width, including parkways established, as they existed at the time the tract was laid out. It was alleged that after selling two-thirds of the lots contained in the tract defendants proposed to replat the unsold portion, and by such replatting change the dimensions of such unsold lots, making them narrower in width, closing a portion of one of the streets, and eliminating some of the portions platted for parkways. Sufficient was alleged to show that all of the named defendants were so connected together as to make them responsible under the cause of action claimed. It was shown by the allegations of the complaint that the plaintiffs were the owners of lots in said tract, but it was not shown as to whether they were original purchasers or subsequent vendees. The disjunctive form of allegation was used in that connection, by such allegations as “the plaintiffs or their predecessors in title purchased from,” etc. Keeping in mind the rule that when opposed by a demurrer the complaint must be construed most strongly against the pleader, it may well be inferred that none of the plaintiffs purchased their lots from any of the defendants as the original vendees. This court recently had before it a case involving the question as to the enforceability of restrictions contained in deeds as between vendees, and in that decision the law applicable to the general subject of equitable easements was fairly stated and the leading authorities cited. (See