Compas v. Escondido Mutual Water Co.

MUSSELL, J. pro tem. This is an appeal by the plaintiffs from judgments of dismissal entered after sustaining the separate demurrers of the defendants to plaintiffs’ second amended complaint without leave to amend.

There are three causes of action alleged in the complaint. In the first cause it is alleged in substance that in March, 1945, the plaintiffs purchased certain real property, described' therein, from the defendants Charles F. Meyer and Myra C. Meyer, his wife. The defendant Myra C. Meyer died after the commencement of this action and the defendant Charles F. Meyer as executor was substituted as defendant in her place. Defendants Charles F. Meyer and Charles F. Meyer, as executor, will hereafter be referred to as the “defendants Meyer. ’ ’

It is further alleged that the defendant Escondido Mutual Water Company, a corporation, hereinafter referred to as the “water company,’’ is the owner of certain land lying immediately adjacent on the east to a portion of the land thus purchased by plaintiffs; that before plaintiffs purchased the property there had been constructed thereon by the Meyers a substantial and costly residence; that before the plaintiffs purchased the property the defendants pointed out to the plaintiffs a certain fence running in a northerly and southerly direction in the vicinity of and to the east of the resi[409]dence, and represented to the plaintiffs that this fence was the easterly boundary line of a portion of the property and that the residence was entirely located west of this boundary line and entirely within and on the land to be purchased; that the plaintiffs believed and relied upon these representations and were thereby induced to purchase the property and to spend large sums of money in improvements, and that the plaintiffs would not have purchased the property, nor have spent any money in its improvement, except for these representations.

It is further alleged in the first cause of action, upon in- - formation and belief, that at the time of the erection of the residence in June, 1942, by defendants Meyer, the defendant water company was aware of and had knowledge of the construction of the residence by the defendants Meyer, and was at all times aware of and had knowledge of the exact site, place and location of its erection; that the defendant water company did not at any time object to the construction of the residence in the location where it was erected; and that it permitted them to expend large sums of money in the construction of the residence without objection and without any notice or claim of any kind that it was being constructed either wholly or in part upon the lands owned or claimed by the water company.