Smith v. Metzger

GRIFFIN, J. Appellants, who are plaintiffs and cross-defendants, instituted this action to abate a nuisance, i. e. a large garage, set on 1-inch by 12-inch planks, which was located [278]partially over the dividing line between the properties of plaintiffs and defendants. Respondents, who are defendants and cross-complainants, by their cross-complaint, sought damages for false representations as to the location of the dividing line when they purchased their property from plaintiffs.

Originally, appellants, hereinafter referred to as plaintiffs, owned approximately 1% acres of land which they subdivided, and out of which they sold lots of various dimensions described by metes and bounds. Included in this subdivided acreage were two contiguous parcels of residential property with a frontage of 111.63 feet, facing north on Eighth Street in Santa Ana. Plaintiffs listed for sale with a real estate broker named Hill (now deceased) the westerly 54 feet of the two contiguous parcels, which had a depth of 130 feet, later increased to 145 feet.

On June 30, 1942, defendant Metzger, a real estate broker, came to plaintiffs’ residence with Hill to negotiate for the purchase of the listed property. An agreement of purchase was reached and placed in escrow. The deed described the property with a frontage on Eighth Street of 54.13 feet, and a depth of 170 feet, reserving 25 feet for road purposes.

Plaintiffs testified that about a week after consummation of the sale they notified defendants to remove the garage. It was originally on the Smith acreage but was moved to its present position on the Metzger property by plaintiffs prior to the sale. It now encroaches on the Smith property 24 to 30 inches with an additional eave overhang of approximately 16 inches. Defendants claim that such notice was received about two months after the sale.

Mr. Metzger testified that plaintiff Jule B. Smith told him that the lot listed for sale was approximately 54 feet wide; that during the negotiations they, together with Mr. Hill, went to the southeast corner of the lot and that Mrs. Smith pointed out an imaginary line constituting the easterly boundary line of defendants’ property, which line was in fact about 5 or 6 feet east of the actual boundary line as disclosed by the description in the deed; that he (Metzger) did not know where the boundary line was or would be; that he asked her how far to the east of the garage the line would be and that she drew an imaginary line one-half way between the two properties and'about 2% or 3 feet east of the east end of the garage; that the depth of the lot was 145 feet and that there is no