Harland v. Noto

SHINN, P. J. Appeal by defendants from a decree granting a mandatory injunction requiring defendants to remove their encroachments on the property of plaintiffs.

In 1948 defendants, who were owners of a lot on Franklin Avenue in Los Angeles with frontage of 100.6 feet, offered to sell 50 feet to plaintiffs, who had a small apartment building which they wished to move from land which had been sold to the state for freeway purposes. The offering price was $9,000. Plaintiffs refused, saying they needed at least 54 feet in width to comply with the municipal building code. [742]Defendants then offered to sell the 54 feet frontage for $12,-000. The sale was consummated and plaintiffs moved their building onto the lot. Defendants gave a grant deed without any reservations. On the portion retained by them defendants have a house which is only 2 inches from the boundary of the property sold to plaintiffs.

This action was brought to require defendants to remove encroachments on plaintiffs’ land. These consisted of the eaves of defendants’ house which overhung 2.3 feet on plaintiffs’ property, a bay window which jutted out at head height 1.77 feet over plaintiffs’ property, and defendants’ sewer line which extends under plaintiffs’ property in an unknown course and at an unknown depth. The trial court granted a mandatory injunction requiring that defendants remove the overhanging eaves, the protruding bay window and, in effect, connect their sewer directly to the main sewer line in front of their property.

In a querulous and fribbling brief, defendants do not question the right of an owner of real property to a mandatory injunction for the removal of encroaching structures on adjoining land, nor do they deny that parts of their building and their sewer line constitute encroachments. They make the following points: (1) The judgment is not supported by the findings of fact and conclusions of law; (2) the decree is uncertain ; (3) disconnection of the sewer would be an unlawful act; (4) the encroachment, if it exists, is of a trifling nature and equity will not enjoin it if the injury to the encroaching party in being required to remove it would be greater than that to the party encroached upon; (5) the attempted sale to plaintiffs was void in that it violated a city zoning ordinance which it .is claimed requires that at least 50 feet frontage should have been retained by defendants.

The first contention is without merit. It is true the findings and decree do not contain a legal description of the property but such does appear in the complaint and thus in the judgment roll, and the decree refers to the book and page where the deed to plaintiffs is recorded. The findings locate the eaves and bay window of defendants’ house which is located 2 inches from the boundary line of defendants’ property. The findings and decree are clear in requiring defendants to disconnect their sewer line if it now runs through plaintiffs’ property. The fact that the line is underground does not render the decree uncertain.