Smith v. City of Los Angeles

[157]

McFARLAND, J.

This action was brought to recover four thousand dollars’ damages for injuries to plaintiffs’ land caused by an excavation made in the street adjoining the land. The court below, sitting without a jury, found the damages to be seven hundred and fifty dollars, and rendered judgment for plaintiffs in that amount. Defendants appeal from the judgment and from an order denying their motion for a new trial.

It is conceded that the excavation in question damaged the land and constituted a legal injury to the respondents; and we are satisfied that the amount of damages found by the court was fully warranted by the evidence. But it is contended by appellants that the city was not so connected with the acts complained of as to make it legally liable for the damage.

Sand Street in the city of Los Angeles crosses the street called Broadway; and respondents’ lot of land in question is on the northwest corner of the intersection of said streets. Before the occurrences involved here the two streets had been graded to the official grade, and the grade of Sand Street was about forty feet lower than that of Broadway, so that on the north side of the former street where it crosses the latter there was a bank nearly perpendicular of about forty feet in depth. In May, 1895, certain persons, against the objection and protest of respondents, excavated and removed a portion of Broadway from the north line of Sand Street. This excavation extended below the official grade of Broadway, along the east line of respondents’ lot about twenty feet, and was about forty feet deep. It thus left an almost perpendicular bank nearly forty feet in depth from the level of the surface of respondents’ lot on Broadway to the bottom of the excavation, and thus caused the damage complained of. Immediately after the excavation was completed a stairway was made along it, by the express direction of the city council, in order to allow people to pass up over it from the lower grade of Sand Street to the upper grade of Broadway.

The court found that “the defendants, the city of Los Angeles, and Perry A. Howard, superintendent of streets of said city,” did this excavation above described; and “that the said work was done and the said excavation made without the consent of the plaintiffs, or either of them, and against their will, by the said street superintendent,