Honsberger v. Durfee

STURTEVANT, J. The plaintiffs commenced this action to obtain a decree enjoining the maintenance of a nuisance and for other relief. The defendant answered by setting up certain denials and alleging many facts of affirmative matter. The trial court made findings awarding to the plaintiffs certain relief and denying relief as to other matters. From parts of the judgment entered therein the plaintiffs have appealed and have brought up the judgment roll only.

The controversy involves the maintenance of two sets of drainage conduits. The defendant owns Lots 1 and 2 and the plaintiffs own Lot 3 of Block H of the subdivision of Bancho Potrero de Felipe Lugo in Los Angeles County. The two properties are adjacent and are located on the southerly side of Slack Avenue. Both properties are bothered with accumulated surface waters. In 1903 J. D. Durfee, the owner at that time of Lots 1 and 2, and Elizabeth Mulholland, the then owner of Lot 3, entered into an agreement that the former should lay a drainage pipe. He did so. Commencing at Slack Avenue he laid a pipe line 16 inches in diameter extending at right angles upon and along the boundary line between said properties south 10 chains and thence at right angles 20 chains or thereabouts. The head of the line was a catch basin or box located at the surface of the ground. The outlet of the line was exposed at the surface of the ground on the lands of Elizabeth Mulholland. That pipe line has been in use ever since. In 1913 the plaintiffs bought two parcels from Elizabeth Mulholland, each parcel is described in the amended complaint by courses and distances. In the amended complaint there was inserted a map. This court is unable from such data to ascertain what part of the map portrays parcel 1 and what part parcel 2 of plain tiffs’ lands. In 1917 the plaintiffs commenced a proceeding, LB-174, to register their lands under the Land Title Law (Stats. 1915, p. 1932; Deering’s Gen. Laws, 1937, Act 8589). [70]There were issued to them two certificates numbered respectively A-3872 and A-3873. The latter covered the land where the first course (hereinabove described) of the said pipe line was located. Said certificate contains an exception: ‘ ‘ Subject right of way for storm waters.” The other certificate contains no such exception. But the record does not show that the pipe line or any part thereof was laid in, or extended into, any part of the lands described in certificate A-3872.

In 1920 J. D. Durfee died and this defendant inherited from him Lots 1 and 2. In March, 1939, the defendant made certain alterations and repairs to said pipe line. He also constructed two sluices laying parallel with Slack Avenue and a short distance west of it. He connected those sluices with said pipe. By its decree the trial court enjoined the maintenance of said sluices. Prom said portion defendant appealed, but he has dismissed his appeal and said portion of the decree need not be further discussed. But the trial court refused to enjoin defendant from making proper repairs to said pipe line. Of that refusal the plaintiffs complain. They contend the findings do not support the judgment.