Balestrieri v. Sullivan

KAUFMAN, J. This is an appeal from an order of the trial court made after judgment, under the provisions of section 949, Code of Civil Procedure, requiring appellants to furnish an undertaking in the sum of $5,000 to stay the enforcement of a mandatory injunction to remove a fence. Respondents’ notice of motion stated that it was made “pursuant to the discretion given said court for such purpose by Section 949 of the Code of Civil Procedure . . . and upon the ground that the real property of said plaintiffs has suffered, is now suffering, and will continue to suffer irreparable damage and injury during the pendency of said appeal. ’ ’

An appeal has been taken to this court from the judgment granting the mandatory injunction to remove the fence and assessing damages in the amount of $500. We are here concerned, however, solely with the appeal from the order made after judgment requiring the $5,000 undertaking.

Appellants and respondents own adjoining residential property in the city of San Francisco. A fence, which was erected in 1918, still is maintained by appellants on a strip of land which they claim to own. Respondents contend that the fence is on their property, constitutes a continuing trespass, and that damage to their house is caused by the leaking of water through the siding and foundation thereof. It was found [561]by the trial court that the fence leans so close to respondents’ house that passage is prevented between it and the house; that the distance at its closest point is approximately 2 inches. Respondents, it was found, have been unable to gain access to the side of their house to make necessary repairs because of appellants’ refusal to remove the fence.

Both parties brought actions which were consolidated for trial. Judgment was rendered in favor of respondents, quieting their title to the strip of land; decreeing that the fence constituted a continuing trespass, enjoining appellants from maintaining the fence as it now exists and ordering its removal forthwith; fixing damages in the sum of $500 and for costs.

A writ of execution having been issued and levied for $555.80, appellants deposited that sum in accordance with the provision of section 948 of the Code of Civil Procedure, whereupon the superior court on November 25, 1953, ordered “all further proceedings in the court below upon the judgment appealed from be and they are hereby stayed and that execution of said judgment be and the same is hereby stayed pending the said appeal.” On December 11, 1953, respondents filed their notice of motion to require the $5,000 undertaking as a condition to staying execution of that portion of the judgment granting the mandatory injunction. On December 17, 1953, a minute order was entered granting respondents’ motion. No reference is made in it to the prior order of November 25, 1953, which was made by a different judge. This order had been called to the attention of the court, however, in appellants’ affidavit in opposition to the motion.