Nippert v. Warneke

SMITH, C.

Plaintiff Laura Hippert and defendant Warneke are owners of adjoining lots in San Francisco; and the action is for damages to the lot of the plaintiff caused by excavations made on defendant’s lot. The complaint contains three counts, of which the first and third are similar.

In the first count the material allegation is, “that on or about the month of April, 1897, the defendant Christian Warneke, without any warning or notice to this plaintiff, caused the front portion of the lot so owned by him, as aforesaid, to be excavated to a great depth; that said defendant J. A. Marshall made said excavation; that in consequence of said excavation the soil on the front portion of plaintiff’s lot, together with sidewalks, flowers, shrubbery, etc., fell into the lot of defendant Warneke,” etc. The third count refers to the back, portion of the lot, but is, in other respects, substantially similar.

In the second count the averments are in effect that in September, 1884, one Hinkle—from whom both parties deraign title—was the owner of the two lots in question, and built adjoining houses thereon, “which said houses had a common foundation built partly on the lot aforesaid now owned by the plaintiff Laura Mppert, and partly on the lot aforesaid now owned by the defendant Warneke, and that said foundation wall was built as and was a party-wall,” etc.; that in the same year Hinkle conveyed the lots, the one to plaintiff’s predecessor in title, the other to the predecessor of defendant Warneke; that by said conveyances, and the mesne conveyances following, defendant Warneke took his lot subject to an easement in favor of the OAvner of plaintiff’s lot, for the support of the party-wall; and that defendant Warneke caused this wall to be removed by the defendant Marshall (the contractor), thus rendering it necessary for the plaintiff to build a new foundation to-

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support her house, etc. All the above allegations are found to be true, and substantially in the language of the allegations.

The judgment was for plaintiffs, upon the first cause of action for fifty dollars, upon the second for three hundred dollars, and upon the third for one hundred dollars. The appeal is from the judgment and from an order denying a new trial.